Branford Takes Tabor Case to Connecticut Supreme Court

A high-powered team of attorneys, moving in State Supreme Court to overturn a $12.4 million jury verdict against the town of Branford, says the trial judge unlawfully permitted ​“a double recovery” for the same parcel of land, first for the owners, then for the would-be developer.

Branford seized the land by eminent domain in 2003 because it lies next to the town dump. First Selectman Unk DaRos, the architect of the plan, said he wanted to protect the health and safety of future residents and to protect the town from liability because of contamination from the landfill. The town paid the owners $1.167 million for the land.

The Fifth Amendment to the U.S. Constitution says that private property may not be taken for public use without just compensation. This is known as the ​“takings” clause.

“One thing was taken: a parcel of undeveloped land. One legal provision was invoked: the federal taking clause,” the town’s brief says. ​“Yet the plaintiffs and their lawyers, by artfully splitting their claims into two separate cases, managed to milk two multi-million dollar judgments from a single taking of a single parcel resulting in a single injury.”

William H. Clendenen, Jr, the town attorney, will argue the eminent domain case before the state’s highest court. He is joined on the brief by two of the state’s leading constitutional and appellate lawyers, Wesley W. Horton, who as attorney for the city of New London won the controversial eminent domain case, ​“Kelo v. New London” before the U.S. Supreme Court in 2005 and Jonathan M. Freiman, of Wiggin & Dana, who was named among the best appellate lawyers in America for 2006 and 2007. Clendenen assembled the team.They bypassed the intermediate appellate court, seeking review by the state’s highest court because the case is a constitutional one.

Efforts to resolve the case by mediation seem to be in abeyance. Attorneys had at least two meetings with New Haven Superior Court Judge Jonathan Silbert, but apparently did not reach a resolution. The town has also hired a law firm to investigate why the town’s insurance did not cover legal costs in the Tabor case.

The Supreme Court brief says there is an established principle of law, a time honored maxim, that ​“a plaintiff may be compensated only once for his just damages for the same injury…The plaintiffs misguided arguments that they are somehow entitled to wring two judgments out of one taking must be measured” against this principle of law. What it means is that a litigant gets one bite of the apple. Not two. The principles are res judicata and collateral estoppel, either one of which could have barred a second bite of the apple.

But that is not what happened in Connecticut Superior Court in Waterbury in the summer of 2007. The trial judge, William T. Cremins, Jr., who presides over a complex litigation part, rejected town arguments that he was trying the same case twice. Town Attorneys asked him not to go forward. He went forward anyway.

He held his first trial, over which he presided, in July 2007. He alone assessed the valuation of the 77-acre tract. Although the land was zoned industrial, ​“was denuded and resembled a strip mine,” the brief says, Judge Cremins decided its best and highest use was residential. He did so even though serious environmental and coastal issues had been raised. He awarded the prior owners, Thomas Santa Barbara, Jr. and Frank Perrotti, Jr. $6.4 million plus interest. They used to run the adjacent town land-fill and they purchased the property at a bank foreclosure sale for $2.11 million in the early 1990s.

Within days of the first case, in August, 2007, Cremins convened a jury and presided over a trial brought by the would-be developer, New England Estates, a small company that had only an option to purchase the land, an option it did not exercise. Nor was the option recorded in town records, the brief says.

NEE did not own the land, and one premise of the federal takings clause is that if the government takes property it gives ​“the owner” just compensation. The lawyers for the owners and the developers sat at the same table in the courtroom. To the jurors they were as one when actually they were two.“Though the issue of proper recompense for the taking had just been decided,” the brief says of the July, 2007 Cremins decision awarding $6.4 million to the owners, ​“the court left it to the jury to consider again.”

The town filed two briefs one against the owners, the other against the developers. Click here to read the first one. Horton will be the lead counsel on the owner’s case. Click here to read second one. Both briefs say that Judge Cremins committed a series of serious, indeed fatal, legal errors that require the high court to overturn the verdict and if necessary order a new trial.

Horton, who will argue the land valuation case, said in his brief that the judge’s decision to put housing on the property was both improper and erroneous.

The court record, he said, does not ​“contain any other evidence from which the Court could reasonable conclude that a zone change was reasonably probable. The error in this crucial conclusion vastly inflated the valuation of the property,” Horton wrote.

NEE​’s attorneys, Jim Bergenn and Tim Hollister, argued to the jury that they would have prevailed in the courts to obtain a zoning change, an argument Judge Cremins accepted as valid and delivered to the jury in his instructions. Horton said NEE as a matter of law cannot show it would have prevailed sometime in the future.

NEE​’s primary argument was that the federal takings clause had been violated because the parcel was not taken for public use but rather to block NEE​’s affordable housing plans. The town said it took the land because of environmental issues and eventually planned to put ball fields on the tract. Indeed DaRos has restored that plan.

The brief says NEE ​“did not identify (and never has identified) any private party for whose use the parcel was allegedly being taken. Rather, their claim was and is that the parcel was taken to block NEE​’s affordable housing plans.” In short, NEE​’s attorneys said the town engaged in a pretex.

But the brief says ​“The U.S. Supreme Court has never recognized even the possibility of a ​“pretextual” takings claim brought by a plaintiff who did not allege that the property would be put to private use. Nor has this Court. Nor have any of the federal courts of appeals. In the handful of cases where pretex claims have been permitted to proceed, the plaintiff has claimed that the condemned property would be transferred to a private party.” The leading case, the brief observes, is Kelo.

Branford never intended to sell or give the property to a private entity. It had always intended to keep it for the town.

At the end of the day, the brief says ​“what the plaintiffs are left with is a claim that the pretext itself is the takings clause violation. That is to say, their claim is that they do not need to prove that the real reason was to benefit a private party; they only need to prove that the real reason was not the one given.” Bergenn repeatedly made this argument in court.

But Bergenn’s argument fails, Clendenen says because ​“plaintiffs have not alleged that the Town’s actual purpose was to benefit private parties” Therefore, ​“their pretext claim fails as a matter of law.”

One theme that runs throughout both briefs centers on the judge’s wrongful rulings. During the trials, the judge made a series of rulings that effectively destroyed the town’s ability to present a case. Indeed, from time to time Cremins would say in open court he was still trying to get his arms around the case. It seemed to elude him.

The town’s brief says the trial judge disregarded the established structure for determining wrongs in a case and instead allowed the plaintiffs, (and we may add, their attorneys) to ​“create a novel cause of action for damages under the takings clause.”

Both briefs dealt with the testimony of Attorney Mark K. Branse, who in his capacity as an expert witness in zoning law, took the stand for NEE. He testified that the Branford Planning and Zoning Commission’s reasons for its denial of NEE​’s affordable housing application lacked merit.

Over the objection of the town attorneys, Cremins allowed him to testify that in the future some court would have reversed the Commission’s findings on the affordable housing application.

​“The court improperly admitted Branse’s testimony” and this constituted reversible error, requiring reversal of the judgment against the town,” the brief says. The Branse testimony was harmful, the brief says because it affected the judge’s decision regarding the ​“highest and best use determination and the result of the trial.”

NEE repeatedly said Branford needed affordable housing and that trumped anything else. Horton pointed out that while only 3.98 percent of Branford Housing is deed-restricted affordable housing, ​“30 percent of Branford housing comes under affordable housing under HUD guidelines. The median price of condos in 2003 was $145,700, about $10,000 less than the proposed pricing of NEE units in the project.”

“NEE​’s proposed contribution to affordable housing in Branford was limited and is outweighed by the Town’s substantial public interests,” the brief says.

The owners and the developers have 30 days to respond.The developers are represented by Shipman & Goodman and the owners by Robinson & Cole. ###