Opie Wants Special Counsel to Examine Tabor Lawyering

by Marcia Chambers | September 24, 2007 10:30 AM | | Comments (29)

John Opie has a first-rate idea. He wants the town to hire a special independent counsel to give a detailed report on the role the lawyers played in the Tabor eminent domain land seizure, starting with the Unk DaRos Administration, continuing through Opie’s two-year term and concluding with the incumbent Cheryl Morris and the Marcus Law Firm she appointed to handle the town’s legal business.

Opie, currently the Republican Third Selectman, made his request by way of a motion at the Board of Selectmen’s meeting last Wednesday. Somewhat taken aback, Morris and Second Selectmen Richard Sullivan demurred, saying they were not prepared to address the topic. Therefore Opie’s motion did not receive a second (no surprise there). But he did manage to keep the idea alive. It will be on the Oct. 3rd agenda.

In an interview Opie said, “I am not worried about the truth. I would like an independent inquiry. The town is entitled to know if some malpractice took place or if this was all bumbling or happenstance. Ultimately we will learn from it.”

If nothing else an independent inquiry might help to defuse the anger, bitterness and confusion that have erupted following a state court jury’s decision September 12 finding the town liable for $12.4 million in damages to New England Estates, a developer which held an option to build, and $340,000 to the former landowners. Add to it $4.6 million dollars the judge ruled the town owed the owners for the land itself, pflus attorneys fees and interest, and the final figure could reach a stunning $19 million or more.

“It’s time the taxpayers got a clear, unbiased accounting of what exactly went on from day one,” Opie said. “If there is malpractice involved anywhere let the chips fall where they may,” Opie told the Eagle.

He is running for First Selectman this November. Anthony “Unk” DaRos, who is running against him on the Democratic ticket, applauded the idea as well. “I’m all for it,” DaRos said. Morris, who won the 2005 election as a Democrat, is now running as an Independent.

One could begin by examining Morris’s latest press release dated September 18. Morris said hers was a response to a joint press release by DaRos and Opie in which they affirmed their collective decision to take the land for health, safety and liability reasons because the 77-acre parcel lies next to the town dump, a portion of which is toxic. When a town uses eminent domain to take someone else’s property it must be for a public use. DaRos and Opie are saying the public use was to protect the public. They blame Morris for the legal disaster that ensued.

Perhaps by coincidence, the press release (click here to read it) was distributed on the same day that the New Haven Register published an editorial “Branford Denied its Day in Court.” The editorial noted the Marcus Law Firm had failed to tell the town’s new Tabor trial lawyers of a May 30 deadline by which expert witnesses had to be disclosed. Morris defended the law firm as she has done in the past. Her purpose seems to be to get them off the hook.

On the day she was sworn into office, Mrs. Morris hired Ed Marcus as town attorney. Marcus, a former state Democratic chairman, used his savvy political knowledge to help a relative unknown achieve the top public office in town. The firm has seven lawyers; it decided to represent the town in virtually all matters except education and labor. Indeed Morris and Dick Sullivan, the Second Selectman, complimented themselves on this consolidation, saying one law firm, charging hourly rates, would be cheaper in the long run.

Within weeks of the November 2005 election, scores of the town’s lawsuits were scooped up by the Marcus Law Firm.

Had the Marcus Law Firm looked at the major cases facing the town—-Queach, Founders Village, Tabor — and said, “OK, let’s give them to outside firms with expertise in these areas,” that would have been one thing. But the firm has steadfastly refused to do what other lawyers routinely have done as town counsel —- farm the cases out to firms with expertise in a specific area. The Marcus Law Firm has kept these major land cases and sought to settle them for residential development as residents have witnessed at public meetings. It was not until Doyle fell ill and there was a near revolt on the part of the RTM that Morris finally decided to change firms in the Tabor case.

When DaRos was in office and Penny Bellamy was appointed town counsel, she, along with several attorneys at her law firm, Wiggin & Dana, a large, well-respected New Haven firm, handled Tabor. When Opie was First Selectman he appointed Branford town attorney Robin Sandler, but Sandler did not keep the Tabor case for himself. He sent the Tabor valuation case to David Reif of McCarter & English, an expert in his field. Opie also continued with Wiggin & Dana on the eminent domain case. Both were large firms and had expertise in real estate and environmental law whereas the Marcus Law Firm is small and while it does handle real estate transactions, it specializes in banking and foreclosure law .

Opie said that within a day or two of Morris’s election in November, 2005, Marcus
asked Reif to send the Tabor case to the Marcus Law Firm. He did. The Wiggin & Dana files were also sent over.

Next, Marcus gave both the valuation and eminent domain cases to the firms’ sole trial litigator, David Doyle. Doyle is one of several associates in the Marcus Law Firm, which has only one other senior partner, Ed’s daughter Shelley Marcus. According to Doyle’s sworn affidavit, filed in Waterbury Superior Court, he got the case in November 2005 and kept it until May 2007. He was chief trial lawyer throughout that period, he said.

Mrs. Morris changed law firms for the Tabor trial in early May, saying Doyle was ill. She praised his work. Doyle and James Bergenn, the developer’s attorney, gave presentations to the RTM, seeking approval of a settlement they had agreed to in principle. Since the town now owned the land, the town would have to return it; the developer made many promises if he were allowed to build. But the RTM rejected the settlement by unanimous vote. They did so, three RTM members said in interviews, believing Doyle’s promised expert witness testimony would take place at trial.

Reif went first on the valuation case, completing his case in early July. He tried to get experts to testify for his case, but the judge turned him down. Then Callahan and David Monz of Updike, Kelly & Spellacy, the firm recommended by the Marcus Law Firm for the eminent domain case, discovered to their dismay that they were not told of a May 30 deadline for listing expert witnesses. The judge had been known to set rigid deadlines which he did not alter.

According to court papers obtained by the Eagle, Doyle learned in February, as settlement talks were about to start, of the May 30 deadline. The information was relayed to him in a telephone conference call with the plaintiff’s attorneys and the trial judge, William T. Cremins Jr. But Doyle failed to tell the new attorneys about the date. As a result the town was not allowed to call financial or environmental experts in a case that centered on a jury’s evaluation of purported lost profits and environmental issues.

In her press release, Morris makes no mention of Doyle’s role in the deadline issue. She says the judge imposed “an arbitrary deadline of May 30, 2007, by which to disclose witnesses.” Then Morris, who is not an attorney, said “it was reasoned that the plaintiffs would not be prejudiced by a minor delay in disclosing new witnesses, which is a customary practice when there is a change in counsel, but the judge would not extend the deadline.”She does not say which firm reasoned this way, but Callahan, the town’s trial lawyer, made it clear in court papers he was not told about the expert witness deadline.

Then there is the issue of whether the Marcus Law Firm had a witness list of its own to begin with. Assuming the firm was trial counsel for 17 months, had they started the process of deposing witnesses for a civil rights violation case that was to take place before a jury? DaRos, who would have been the star witness, was deposed by Bergenn, the developer’s lawyer, but not by the town, he said. Nor did he know of anyone else deposed by Doyle, he said.

There may have been a witness list, but there were no financial or environmental experts on it though the town’s outside engineers, Fuss & O’Neill might have been listed. As late as January, 2007 Doyle wrote a desperate motion to Judge Cremins begging for a trial delay because he obviously was way behind in getting witnesses ready for trial. Click here to read the motion.

Morris addressed this issue: “Much has been made by my opponents regarding the alleged failure on the part of the Marcus Law firm, during the interim period when they had the case, to produce witnesses.” In what may be her effort to reduce the firm’s accountability to the town, she uses the word “interim,” implying a short period of time. But in fact the Marcus Law Firm had the case for 17 months.

Morris said the Marcus law firm had a “witness list “and the firm was prepared to disclose it to the plaintiff’s attorneys, but when the defense was transferred to Updike, Kelley and Spellacy, “that firm made a reasoned decision to bring in their own witnesses.”

The First Selectwoman also seems to change the time-line with regard to Reif’s role in the case. She says “no expert witnesses were ever disclosed by Attorney Reif before the scheduled trial date of February 2006.” But at that date Reif was no longer on the case. She says the trial was not heard because the plaintiff’s appraisal was not prepared. “The case then came back to my administration and was referred to the then town counsel, the Marcus Law Firm.”

Not so fast. In fact, the case never left the Morris-Marcus administration after it took it in November, 2005. By Feb. 06, David Reif was well out of the case.

When she belatedly changed firms for the trials, she sent the valuation case back to David Reif, and she sent the takings case to Updike, Kelly and Spellacy, a Marcus recommendation, she said, rather than to Wiggin & Dana, Unk’s old firm, which knew the case well.

In the end it was May 8th when Updike, Kelly and Spellacy signed on to a huge case that required them to get up to speed in three short months. They expected to get a delay in the jury trial because newly appointed attorneys typically do. They also argued that an appeal in the land valuation case should be heard first, so that the same case does not have to be tried twice. Judge Cremins turned them.

Time will tell whether Judge Cremins’s judgment, including the granting of judicial rulings that severely limited the town’s ability to present its own case, will be upheld on appeal. Morris says the jury verdict will be appealed on the grounds that Cremins made multiple errors in his rulings.

But in the end, the so-called cost saving analysis that Morris praised when she permitted Marcus to scoop up scores of the town’s legal files, including Tabor, may be her lasting legacy.
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Comments

Posted by: Jpots | September 24, 2007 2:48 PM

Will somebody else besides these 3 PLEASE run for the position. They have all proven one thing: they are all highly UNqualified!

Posted by: stanmac | September 24, 2007 5:07 PM

So now we are going to have a special counsel? This will cost the town how much more money? The sole purpose of this is to lay the blame on someone. It looks as though there is enough blame for all running for office to share.

Posted by: PissedCreeker | September 24, 2007 5:29 PM

Unk,Opie & Morris Show?! Sounds more like Hee-Haw!

Mr.Pots I don't know if these 3 are unqualified or overqualified? It seems that they are doing a great job of finger pointing which has been a key asset to a successful politicians career.

I find John Opies idea of an independent counsel intriguing but that will only examine the actions of the attorneys who were suppose to defend the towns case. How about an independent counsel to investigate the actions of the 3 different selectmen to see if there was any mishandling of this issue by our elected officials? Attorneys cant turn a wrong into a right, they can only defend the facts. It all starts with their actions! My interpretation is Unk took the land, Opie went through with it and Morris may have added fuel to the fire by switching attorneys so close to the trial. Fact of the matter is that the District Court Judge warned the town that this could happen when he ruled on it years ago.(before Morris) Not that she is innocent either.

This has turned into a BIG political game of PASS THE BUCK! Start at the source: Mr. Unk DaRos took this land in an ego trip and never thought it would continue as far as it did. I cant wait to read the testimony he gave under oath. It should be deposited in every Branford tax payers mailbox along with any other elected officials testimony. They may think they can cruise through their terms collecting paychecks until something like this comes along and they completely mishandle it. I would like to congratulate the 3 of them and personally thank them for the future tax increase we are all sure to see. Mr. Pots I do agree that I think we need some new blood in the position, but unfortunately will not get it.

Maybe that independent counsel Opie is going to hire can make a recommendation on whether to drag this out at a million + a year price tag or the town should cut its losses, settle and get ready for Founders Village?

Posted by: REGS | September 25, 2007 6:01 PM

"When DaRos was in office and Penny Bellamy was appointed town counsel, she, along with several attorneys at her law firm, Wiggin & Dana, a large, well-respected New Haven firm, handled Tabor. When Opie was First Selectman he appointed Branford town attorney Robin Sandler, but Sandler did not keep the Tabor case for himself. He sent the Tabor valuation case to David Reif of McCarter & English, an expert in his field. Opie also continued with Wiggin & Dana on the eminent domain case. Both were large firms and had expertise in real estate and environmental law"

Did you not know that Robinson & Cole and Shipman & Goodwin are considered perhaps the two top Law Firms in the State when it comes to land use? If your going to throw bouquets, at least throw them in the right direction.....Your writing is so one dimensional it is unbelieveable.

Posted by: PissedCreeker | September 26, 2007 5:27 PM

There is plenty of blame to be shared by all involved. I am mad that the town & its taxpayers have lost. Until it is decided otherwise that is the result.

"However, Bergenn elicited from DaRos and Bellamy that the town itself did no testing on the 77 acres before it seized the land, even though Fuss & O'Neill had given the town an estimate to do so. Nor had the town taken into account years of state DEP reports showing the landfill was in environmental compliance with its state landfill permit."

MY Q: SO WHY WAS THIS LAND NEVER TESTED? AFTER ALL OF THIS WOULDN'T IT BE ONE OF THE FIRST THINGS YOU WOULD DO? OUR DEFENSE WAS THAT THIS LAND WAS CONTAMINATED, DID WE JUST EXPECT EVERYONE TO BELIEVE THAT WITH NO PROOF? 3 SELECTMEN AND NO TESTS IN OVER 4 YEARS, SOME BODIES DROPPED THE BALL. MAYBE THE ESTIMATE WAS MORE THAN THE $18+ MILLION WE LOST?

"Humphrey's cross-examination of DaRos was short.
Q: You can go on the property day or night, right? A. Yes.
Q: You could have drilled millions of holes, right? A. Yes.
Q: You could have gotten a formal written legal opinion from a top law firm about eminent domain? "Yes, if they did that."

"But you didn't test. You didn't have a written legal opinion. You didn't ask for one. You just took our property!'' Humphrey declared, almost shouting. Unk was silent.

My Q: UNK DECIDED TO TAKE THE PROPERTY BY EMINENT DOMAIN, WHY DIDN'T HE GET THE TEST DONE BEFORE DOING SO?

"From DaRos's point of view, the fear of illness plus the prospect of endless liability if residents became ill were his main reasons to take the land. "We would have liability forever. Anyone who came down with anything would blame the landfill and not the (Tabor) parcel of land," he told the jury. The town owns the landfill."

My A: VERY VALID POINT MR. DAROS, WOULD CERTAINLY BE A CONCERN OF MINE AS WELL. WOULD YOU PLEASE SUPPLY THE TEST YOU HAD DONE SUPPORTING THIS CONCERN SO WE CAN ALL GO HOME. OH, YOU NEVER HAD ONE DONE? WHY NOT?

Just some questions I would like answered.

Posted by: dman | September 26, 2007 7:56 PM

Those are good questions pcreeker. I can't believe how the then town Attorney Penny Bellemy did no legal research or solicited any opinions in the "prestigious" law firm where she worked. She had no idea what she was doing. In my opinion, if UNK gets re-elected the town will get what it deserves. MORE INCOMPETENCE. Its laughable when he says" I would do the same thing today"

Posted by: eyeright | September 27, 2007 10:17 AM

Unk's idea of hiring a special independent counsel to review the actions of the attorneys is a waste of time and taxpayers money. We can all read trial transcripts.

Enough with the finger pointing from this clown!

When the citizens of Branford get the bill for this circus I believe we all have one finger we should point at Unk since he started this whole mess.

Posted by: scjerry | September 30, 2007 11:37 AM

As one who has spent more than a little time researching the testing issue, here are a couple internet links that may provide some insight.

EPA conference on contaminant flow in fractured bedrock
http://clu-in.org/products/siteprof/2004fracrockconf/cdr_pdfs/no_index/group1/program.pdf

EPA Branford landfill history
http://yosemite.epa.gov/r1/npl_pad.nsf/51dc4f173ceef51d85256adf004c7ec8/41ceeb4d29046bd985256b42006053f9!OpenDocument&Highlight=0,Branford

VOC testing and remediation: a regulatory mishmash by David Hurley et.al.
http://www1.ctbar.org/files/May%202007_Vapor%20Intrusion.pdf
.
It is the obligation of the DEP and the EPA to set testing and monitoring standards. In every case of a municipal landfill in CT, where prior testing was done and no problems were found, problems cropped up years later, and several of these became superfund sites. This is true for Southington, New Hartford, Hamden and others.

The reason for the lack of testing efficacy is clear: fractured bedrock is an almost intractable substrate to monitor the flow of contaminants. Testing today that meets acceptable levels does not mean that testing in the future will meet those same levels. Add to that, the corrosion of containers of volatile organics in the form of 55-gallon drums, buried and sitting at elevations approaching 100 feet above sea level, while homes are at 10. Add to that the possibility of rising tidal wetland waters and the effect on the water table.

Note the EPA's description of the Branford landfill and the report of 100s of barrels of waste dumped on the site (albeit anonymous) ?

Note the EPA conference on fractured bedrock (which underlies all of Branford) and respond to the introduction:

"What we have learned in the past decade and what the future holds.
Fractured rock is arguably the most challenging geologic environment to characterize and remediate. Historically, it has been perceived that these sites are so complex that even after spending considerable dollars, a great deal of uncertainty remains. As the science and technologies develop we are gaining a better understanding as to the physical and chemical nature of the systems and the fate and transport of contaminants in fractured rock."

Finally, David Hurley, VP of Fuss & O'Neil would have spoken to the issues relating to VOCs if given a chance.

In the jury trial, none of the above was allowed into the record in front of the jurors. The word "contaminant" was not allowed. A travesty of justice.

Unk DaRos did the reasonable and moral thing.



Posted by: REGS | September 30, 2007 3:08 PM

Thanks for the explanation Mrs.DaRos

Posted by: dman | September 30, 2007 8:51 PM

You can say what you want. The fact the town had the authority to "investigate" prior to taking the property is what makes the 5th amendentment a safeguard to each one of us. The town, NEVER, investigated ANYTHING. Even to this day. Whose fault is that? Hurley admitted under oath the site was suitable for residential use. He further elaborated that there are safeguards that could be used to prevent either gas or contamination.
The contamination cry is getting very tired. Show the evidence before you take property. Get IT!

Posted by: eyeright | October 1, 2007 7:53 AM

As SCJerry noted "fractured rock underlies all of Branford" representing the "most challenging and geologic environment to characterize and remediate".

Based on Unk's track record on the Tabor case, if he gets re-elected the only "reasonable and moral thing" he can do then is seize the entire town by eminent domain.

My guess is that his plan will be to relocate all of us to New Orleans.

SCJerry...is this okay Bayou?

Posted by: E. Cleveland [TypeKey Profile Page] | October 1, 2007 8:52 AM

Thank you SCJerry for providing the facts which many others choose to ignore. I think hiring an independent counsel to look at what the attorneys did and did not do is a fantastic idea. Eyeright: you said to look at the transcript. That is silly since what is missing from the transcript is the testimony of an environmental expert witness -- which the judge denied because the deadline was missed to list the expert witness. And why did that happen? Because the Marcus Law Firm forgot to tell the new attorneys that such a date existed...nor had they apparently secured any expert witnesses themselves even though they apparently knew in February about the May deadline. Strange.
Pcreeker: You can get answers to your questions by checking out www.unkdaros.com
Regs: your obsequious statement about Robinson & Cole and Shipman & Goodwin must mean that you are employed by them.
And once again I say: Anyone with a fake name who doesn't have the guts to stand up for what they believe in publicly must have another agenda that would be revealed if people knew who they were. Reader beware.

Posted by: Regs | October 1, 2007 10:05 AM

E.Cleveland- Your comments are specious, spurious and fallacious. You seem to be blinded by emotion and party loyalty and an obsession to know the personal background of people who have something of merit to share. I do not work for the firms I lauded. I have read the Blue Ribbon Commission reports on Affordable Housing and am a long time subscriber to many trade and professional planning journals. The anonymity of message boards and chat room allows for "Indepenent" dialog without recrimination. If you don't like to play, find a new game.

Posted by: eyeright | October 1, 2007 10:51 PM

I agree with Regs. E.Cleveland, you're comments are indeed specious, spurious and fellatious...er, huh I meant fallacious.

Since you're remote viewing about what went on behind closed doors regarding the lawyers can you spare a few moments to view into the future and get the winning Powerball numbers.

If you post them I promise to use the winnings to pay the judgement for the town.

Posted by: scjerry | October 2, 2007 8:56 AM

Four points for those who wish to spend a little time digging.

1) Attorney Bergenn took depositions of Fuss & O'Neill employees, before May and without competent environmental counsel representing the town. Whatever you wish to draw from those depositions may lead to invalid conclusions. F & O employees wear two or more hats, but one hat is usually as a PE or professional engineer. The others are as an environmental scientist or hydrogeologist. The Doyle/Marcus team (foreclosure lawyers) didn't know the difference and could not cross-examine competently during the deposition hearings held at the Marcus law firm offices. In fact, Doyle didn't even have an expert witness list as of March in his appearence before the RTM Administration committee hearing, so Bergenn used our own experts and cleverly biased the outcome right under Doyle's nose.

2) PEs will say that anything can be done in order to mitigate an environmental threat; it's a matter of cost. The environmental scientist will point out the unknowns and the lack of good science and the possibility of new knowledge about health risks in the future that may totally change the mitigation landscape. That's David Hurley's article in the Connecticut Lawyer on VOCs.

3) On testing, there are four wells being monitored. The prospects for gaining definitive information about risks in the future are a game of diminishing returns. Drill as many additional holes as you wish, the science can't help you predict future "contaminant" fate or dispersion in fractured bedrock. That's the EPA conference introduction I reference above on the subject.

4) What is known with fair certainty is that past testing of Connecticut landfills was insufficient, with abutting lands adversely affected.

So why should Branford take the risk of threatening the health of future generations, more than already exists?

Posted by: dman | October 2, 2007 9:49 AM

If your so concerned about the future then JUST PAY THE MONEY and the property is yours forever. The town tried to steal it using a bogus reason, faulty logic and a cast of incompetent politicians. You got caught! Blame everybody else. You have that privledge but now its time to pay for it. In this country, we have the Constitution and state statues to protect us from "possibilities." We use proof. You don't have any!

Posted by: E. Cleveland [TypeKey Profile Page] | October 2, 2007 10:12 AM

I'm not saying anything that people don't already know: People who use fake names have something to hide.
"Independent dialog?" LOL.

Posted by: scjerry | October 2, 2007 12:31 PM

DMAN - I believe in just compensation to the owner. The trial leading to the $4.6M figure to compensate Santa Barbara suffers from the same incompetent legal representation, but that will be appealed.

We'll see whether a piece of industrial property next to a landfill is even marketable. What will be the comps to determine market value? Try land next to the Southington landfill, or next to the landfill in New Hartford.

The jury in the highly flawed 2nd trial gave NEE $12.4M in damages just because they held an option to build.

You call that fair and equitable?


NEE had never completed a Phase III land-use report in their denied 10/2003 PZC application, which would have included an environmental piece. Issues like percolation, groundwater levels, proximity to tidal wetland waters .... The list goes on ad infinitum. It is the responsibility of the developer to provide hydrologic data sets... but NEE refused to comply with PZC request to provide this information.

NEE tried to get an industrial zone exemption, which was denied along with the rest of the NEE application.

Are you saying the state laws governing the right of a town to determine its own land-use policies through a Planning and Zoning Commission are unconstitutional?

So who is robbing whom in the name of the Constitution?

Posted by: REGS | October 2, 2007 5:22 PM

Unk had a phase III at the MIF, but he supported that project. I guess as a politician he can pick and choose what criteria he wants to use depending on what projects he and his supporters favor and whichever way the wind is blowing at the time.....
Eliza....Have a nice day!

Posted by: dman | October 2, 2007 10:59 PM

Isn't it ironic the town NEVER did any testing. For a good reason. Unk knew there was no pollution. He admitted it under oath. The property had a special zoning overlay that P&Z repealed during the application process. Sneaky, sneaky, sneaky! An arms length transaction in effect for 3 years is a valid contract. No judge not even DeMayo denied that. I agree with REGS. If you want a phase III look at the one done for the MIF project. Unk supported building on a site that is known to be heavily contaminated. I guess its ok to let people live there. Where is the social concern for those people. There is more than a "possibility" some one will get sick there. I wonder if that will come out in the appeal. I'd like to see that one explained away. But anyway, just post the phase I, phase II and phase III the town had done on Tabor so we can see it. LOL

Posted by: scjerry | October 3, 2007 8:19 AM

The town never proposed changing the zoning from industrial to residential. So why should they do Phase anything? The onus is on the developer to prove the the property is suitable for residential use. Now they want $12M for lost economic opportunity after having refused to do so. The zoning overlay was unique to NEE and self-serving, being applicable nowhere else in town.

The MIF reference is a red herring. Most of the polution was on site and ammenable to remediation, including the asbestos in the razed buildings. Take a look at the EPA file on it.

Posted by: E. Cleveland [TypeKey Profile Page] | October 3, 2007 9:37 AM

Regs: Are you threatening me? I think that Paul Bass should require people who write in to list their real names and provide phone numbers for just that reason.

Posted by: dman | October 3, 2007 12:24 PM

As you recall the "overlay" had been approved on another project so don't insinuate it was never there. The town had to do the testing because they took private property to "investigate, remediate and possible playing fields" thats why. You can't just take private property. It is unconstitutional. You must have a factual reason for doing so. Ask your attorney! The developer proved it by using your own engineer David Hurley" the property is suitable for residential devevopment" spoken under oath and also divulging the fact remediation if necessary would be in the 30K range. Be that as it may, I am flabbergasted such concerned people would not test this property immediately, especially after an illegal taking, to ascertain its condition before they put their children on it. I guess thats not worth the investment or it wasn't the real reason for taking it. Its been over 3 years NO tests. Can someone explain that?
Oh Yeah! The jury saw all of this and made its decision watching RTM members and First Selectmen and women fumble through a story that was blatantly orchestrated and appeared to be dishonest. You can claim you didn't have expert witnesses but they can't change the facts. Incompetence is at work here. Maybe Opie does have a good idea. Look at the legal representation. They carry insurance.

Posted by: LocalLaw | October 3, 2007 5:26 PM

Wow,Wow,and further Wow. Nothing like open and healthy discussion on the issue at hand.Its unfortunate that this depth of discussion didn't take place in 2003 before the RTM and its subcommittees. I don't blame the volunteer members of the RTM for voting the way they did. If you can't rely on the data and reports your paid town officials(Unk and Penny) presented to you, what can you rely on? There is enough blame to go around, Unk and Penny for starting this mess, Cheryl for having apparently incompetent counsel, and the current RTM for rejecting out of hand the settlement proposal that was recommended by a eminent superior court judge, Judge Silbert.Now my property taxes (and yours) will go to pay for 77 acres of land that was only desired by the plaintiff!! WE SHOULD OF LET HIM HAVE IT.

Posted by: PissedCreeker | October 3, 2007 6:20 PM

Heres another question I would like answered: If this property is so damn contaminated, then which one of our town employed geniuses came up with the idea to build ball fields on it? That was one of the reasons listed for taking the property, to use it for town use as ball fields? I guess its not o.k. to build on the site, but its o.k. to let our kids play on it?! Thats REALLY looking out for the FUTURE of this town. I know I will get some B.S. answer but I'm guessing that there were never any plans for ball fields on this site? Could this have been a sad, pathetic reason they used to try and back up their fight...by using the "children" excuse?

Posted by: REGS | October 3, 2007 8:48 PM

Have a nice day! If that is a threat, I will have to be more careful. I don't want to offend anyone's sensibilities.

Re: the MIF Phase III. It was performed for the Town, and part of it said meeting some of the State Clean up standards would be cost prohibitive, so they would need a waiver of standards.....its not a red herring, more likely a three headed herring that glows in the dark.

Posted by: dman | October 4, 2007 10:45 AM

That's very interesting REGS. Did they ever get the waivers you're speaking of? I wonder if this will come out in the appeal? It looks like Mr. DaRos will have some conflicts with his double standard approach! Some of his campaign promises are:

2. Purity of conduct "Stealing Property"
3. Honesty of motive "My heart tells me to steal it"
4. Fidelity to the laws of truth "except Constitution or State statutes"

6. Unity of purpose "Get the property"
7. Choose honorable candidates and appointees who see that their duty is to the people. " BUT Only what me and my attorney say"
8. Take responsibility and act." I knew the property was clean. I took it anyway."
9. Make up your own mind calmly and deliberately."Hurry up an affordable housing application is coming"
10. Keep your word and take no steps backward. "I would do it again"
11. Discharge your duty with integrity. "I don't care what it costs"
12. Insist on Transparency" "Wishes he was transparent NOW!"

Don't forget the real brains of the outfit Penny. After all nothing was ever researched. Is Penny Unks campaign manager?

Posted by: David Baker | October 10, 2007 5:28 PM

Marcia,

I don't agree with John that we should have an independent counsel to review the Tabor Drive debacle.

1. The suggestion is based on the naive notion that an objective truth can be defined and accepted by the people. Even people less cynical than I am will say the lawyer confirmed his client's point of view. That is - after all - what lawyers are trained to do. Archibald Cox may be a notable exception.

2. The town does not need the added attorney fees.

Posted by: scjerry | October 10, 2007 10:56 PM

LOCALLAW

Yea, I agree with you about letting them have it. $19M buys a lot of teachers.

But there is a big problem. How do you answer to future taxpayers who will foot the bill when the residents of the 250 plus condo units complain of asthma or liver ailments when the 55-gallon drums rust through and dump VOCs into their basements?

So I opt for a short-term solution to avoid having my taxes increased. I will be long gone when my kids have to deal with the consequences of the inevitable.

But any agreement will include indemnification to the town of the potential financial impact of lawsuits. Right?

There are a number of other issues, too.

Why does NEE have legal standing (so why should we pay $19M to someone who couldn't submit a competent PZC application)?

Who determines where the boundary between safe and unsafe begins and ends, when the EPA says the science doesn't exist?

Who dictates to our land-use commissions that they should give approval to whatever partitioning there is of the 77-acre parcel?

On the athletic field stuff, you can't believe what the DEP and EPA require, including lots of protective layers between the potentially "contaminated" layer and the playing field surface (I said the banned word), using layers of plastic sheeting, and clean fill layers. Be reminded, the regulations do not require that athletic fields be tested for radon, which like the (VOCs) volatile organic compounds from the landfill, collect in low lying areas like residential basements and puddles accumulated from rain storms.

Finally, on the issue affordable housing. Branford (a.k.a. Condo City) has substantial units rented through Social Services. Tell me how these proposed units will be utilized so that we don't have a environmental justice lawsuit leveled against the town? Leasing units to low income clients may be the only recourse left to the developer when the units are near a landfill.

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