Branford Asks High Court A Tabor Question

Ten days after dodging a $12.4 million jury bullet in the Tabor land case, Branford is heading back to the Connecticut Supreme Court. It’s asking the justices what they meant when they called the town ​“dishonest.”

In a unanimous vote, the Board of Selectmen Wednesday night asked town attorney William T. Clendenen, Jr. to file a motion for reconsideration with the Supreme Court to try to get an answer on a specific jury instruction, an answer that might explain the word ​“dishonest.”

They did so after Clendenen offered to return the case to the high court on this issue. Clendenen told the selectmen he had raised the issue with the high court but it had not been answered. This latest development means that on the town’s side the Tabor case will remain alive for an undetermined period of time. 

Last week in a unanimous decision, the state’s highest court reversed the multi-million dollar damage award that was returned by a Waterbury jury in Sept. 2007. The jury had found that the town acted wrongly in seizing by eminent domain a 77-acre tract of land known as Tabor in 2003. Their verdict was overturned because the developers did not own the land; they had only an option on it. The court also reversed $1.5 million in legal fees the developer’s attorneys, Jim Bergenn and Tim Hollister of Shipman & Goodwin in Hartford had sought.


The Tabor case is not easy to understand. And the victory the town achieved in a case that presented enormous legal obstacles has quickly became mired in a blame game that played out at Wednesday night’s Board of Selectmen meeting. Some 60 residents packed the room for what turned out to be a passionate three hour post-mortem on the Tabor case. 

Because of its longevity, the Tabor case has taken on a life of its own. It spans the administrations of four selectmen, beginning with Democrat Unk DaRos in 2003, and continuing with John Opie, Cheryl Morris and DaRos again. Daros and Second Selectman Fran Walsh are the two democrats on the Select board. Opie is the lone Republican. 
 
DaRos was the architect of the plan to seize the land. He said he was concerned about possible contamination from the adjacent town dump and he was worried that the developers were not going to fix the problem. After the Planning and Zoning Commission denied the Tabor project in 2002, the town’s landfill engineers learned that a plume of contaminated ground water flowing from under the town’s nearby landfill to under the Tabor Drive site was a ​“methane migration.” This discovery became the basis of the town’s decision to seize the property by eminent domain.

DaRos reiterated those concerns, saying contamination issues often arise decades after the initial findings. Many residents applauded him. Opie, now the Republican Third Selectman, formally took the land, zoned industrial, at a cost of $1.167 million early in 2004 after he was elected first selectman. 

At the outset of the Wednesday night meeting it was Opie who took the lead, saying the town’s name had been besmirched by the high court and he wanted to understand why. He said residents would want to know, too. 
 
​“The Supreme Court was rather explicit… They said the town acted dishonestly. Where did they get that?” Opie asked Clendenen. 

In a subsequent interview, Opie explained that if the high court is going to ​“say things like that, they should be willing to explain what they meant, and I’d like it in their words,” he said, ​“and not an interpretation by Clandenen.”

Specifically the high court said in its opinion that the town ​“was dishonest about its reasons for taking the land.”

That statement is not the reason why the Court reversed the jury’s verdict.

The reason for the reversal is based on the fact that there was no cause of action, no legitimate reason for the proposed developers, New England Estates, to be in court at trial in the first place, since all they had was an option to build on the Tabor property. The developers did not own the land. Under state law, the high court found, they could not be compensated.

Clendenen told the selectmen the issue over the word dishonest, which is mentioned a few times over scores of pages in three separate Tabor decisions, can be traced to a jury instruction that the trial judge William T. Cremins, Jr. gave the jury before they began deliberations

To find the town acted in bad faith, Cremins told the jurors, they had to find either that the town created a pretext to seize the land or that it acted unreasonably or that it abused its power. When the jurors handed in their verdict on that charge, they said ​“Yes,” but they failed to distinguish among the three choices. 

Not all the answers to the three questions would result in a conclusion that the town acted dishonestly.

The high court also upheld Cremins’s court ruling awarding $4.6 million to the actual owners of the property, finding as did the trial judge that the highest and best use of the land was residential. However, at the time the town seized the Tabor land , which shares a property line with the town dump, the developers had no permits to build and the land was zoned industrial. 

While Opie questioned how the high court arrived at the dishonesty issue, he was hardly raising a new issue. Bergenn and Hollister raised it time and again at the trial and in their briefs. They said the town seized the land in order to avoid building affordable housing.

Opie, Morris and DaRos all took the stand at trial. And when they took the stand they were warned by the judge they could not discuss why the land was taken, even though they were the town’s decision makers. It became impossible for these witnesses to speak, a situation that at the time frustrated both Opie and DaRos.

At one point Bergenn maintained to the judge outside earshot of the jury that the word ​“contamination” in relation to the land was so prejudicial that ​“It’s like calling someone a molester.” What the jury was allowed to hear became a key issue at trial. 

Pottenger’s Point

At one point Wednesday night, for the first time, an outside lawyer unconnected to the case rose to speak on how the Supreme Court came to rule in the way it did. He also explained how attorneys work.

The lawyer, J.L. Pottenger Jr., a Branford resident, is a longtime clinical professor of law at the Yale Law School. Pottenger oversees law students who are engaged in litigation before a variety of courts, including the Supreme Court.

He explained when the jury got the case they also received a series of jury instructions. As he went through the Supreme Court’s decision, he said understanding the sequence of events was crucial to understanding the court’s finding. 

“In the valuation case, he said, footnote 23 of the Supreme Court decision and you have to read the footnotes, too, says the town was precluded, that means stopped, prevented from putting on evidence about environmental contamination of the parcels. The reason was the lawyers who were representing the town at the time did not meet the expert deadline.”
 
Pottenger did not identify the Marcus Law Firm, but the town subsequently sued the firm over this failure. That case is still pending. The firm represented the town during Mrs. Morris’s tenure from 2005 to 2007.

“The town was stopped from calling experts,” Pottenger said. ​“So big surprise the judge finds it is residentially appropriate land because there is no evidence allowed that it isn’t. That there are environmental questions, concerns, issues, problems, well, the town was not allowed to put that evidence in. So the judge found that the highest and best use of the land was residential.


When it got to the developer’s case, which was held soon after the valuation case, in the same Waterbury courtroom, but this time before a jury, the same judge gave instructions to the jury before they went to deliberate.

​“What he said was you must, you must treat the land as residential because of my finding in the valuation trial. And they were also told that the jury must find that the permits for 300 plus residences would have been issued. (They had not been at the time.)

“So when you read these opinions closely you understand that the town was stopped from presenting its environmental evidence, that the jury was stopped from going behind it. It is not a surprise that they found what they did. They were not allowed to go beyond the judge’s findings about how much the land was worth and whether the permits would have been issued.”
 
He was about to take his seat when the audience burst into spontaneous applause. Then he said he had one more point to make.
 
This point had to do with a letter from Fuss & O’Neill, the town’s engineers. At the trial Bergenn strongly suggested that Penny Bellamy, the town counsel in 2003, had doctored the letter. Bergenn’s belief has subsequently been raised in other settings. 
 
Pottenger said that contrary to what some in the room were thinking Bellamy acted correctly in working on the letter and had she not she might have been in legal trouble herself.

“We work with experts a lot. And I have to say and I hope this won’t come as a shock that when lawyers work with experts they talk to each other. And the lawyers and the experts together work out what the issues the expert is supposed to look into. What is the scope of the expert’s job, and guess what, they also talk about what the expert’s opinion is going to say.

​“And this will really shock you, sometimes the lawyers don’t like what the experts say and so they have a discussion about did you consider this, or what about that? Or there is this other thing, doesn’t that make a difference?

“And sometimes they even take an expert’s opinion and edit it, he said with emphasis. And what I am here to say to you as a lawyer who works with students and experts a lot, it might have been malpractice not to edit the expert’s opinion.”
 
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