Waterbury— A parade of Town First Selectmen, past and present, took the stand in the fifth week of the Tabor land trial. But judicial rulings made it extremely difficult for them to tell the jury the full story of the town’s decision to seize the 77-acre property by eminent domain in 2003.
The developer, New England Estates, took four weeks to present its case. The town began its case last Tuesday and presented four days of testimony highlighted by appearances of two former First Selectmen, Anthony Unk DaRos and John Opie, and the current First Selectwoman, Cheryl Morris. The jury may get the case tomorrow.
James W. Bergenn, the developer’s chief attorney, has been extraordinarily nimble and effective in getting his version of events before the jury. And to a large degree, with the help of his caddy, the judge, he has obtained the rulings he needs to severely restrict, even eliminate to a large degree, the town’s case.His strategy was to do it through an adroit use of legal rules restricting the introduction of evidence from the other side. The town had already been told by the judge that its environmental and financial experts could not testify. As the trial drew to a close, the rope around the town’s neck tightened because Bergenn and Steven Humphrey, who represents the owners, had convinced Superior Court Judge William T.Cremins, Jr. that exclusion was required by the rules of evidence.On Friday, the town’s trial attorney Kerry Callahan tried getting a 10-page business letter describing the contamination of the parcel into evidence and before the jury. The judge turned him down even after he produced the letter writer, David Hurley, the town’s outside environmental engineer. So Callahan asked the letter’s recipient, Shirley Rasmussen, the town planner, to take the stand. The judge said no again. Too inflammatory, too prejudicial, hearsay, Bergenn argued. “Double hearsay,” echoed Attorney Humphrey. The judge agreed. Bergenn even argued that an e‑mail sent at 7:15 p.m. by another town official was too late in the day to be considered relevant as a business record.When the town of Branford’s Board of Selectmen, Board of Finance and Representative Town Meeting authorized the land be taken back in 2003, they believed — unanimously — that the land held contaminants, the result of sharing a border with the town landfill. Their concerns were for the health and safety of future residents as well as potential liability against the town.The Board of Selectmen, then led by Opie, held off on formally taking the land until Superior Court Judge Anthony DeMayo in New Haven denied New England Estates a temporary injunction to stop the taking. Judge DeMayo found the town had shown ample evidence of contamination. He ruled on December 15, 2003, just after DaRos left office.Attorney Callahan sought to get the DeMayo information before the jury. He asked DaRos and Opie and former Town Attorney Penny Bellamy why it took from July 2003 to January 2004 to formally take the land. What happened over those five months?What had happened was that Judge DeMayo weighed the testimony of a group of Town officials before issuing a written decision that found the town had legitimate environmental concerns concerning the land. His ruling did not preclude the current case, which many residents may not have understood. The DeMayo decision was crucial to town leaders. Opie, the new First Selectman, waited for it before taking the final step to acquire the land.But the jury never heard this history. Bergenn had maintained that Judge DeMayo’s ruling would only confuse and prejudice the jurors and he asked the judge to keep the DeMayo ruling from the jury. Judge Cremins agreed.When David Doyle, the town’s attorney from the Marcus Law Firm, heard that the DeMayo ruling would not go before the jury, he left the spectator section and walked into the well of the courtroom. He was livid. At the defense table he asked to be heard: “Your ruling has to be reconsidered,” he told the judge. “Every single decision maker in Branford knew about Judge DeMayo’s decision,” he said, explaining it figured heavily in the town’s decision to formally take the parcel.“I have already ruled,” the judge declared.After that a typical courtroom rhythm would occur whenever Attorney Callahan asked about the time delay between the RTM summertime decision and its formal taking on Jan 5, 2004.When Unk DaRos was asked about the time lapse on Thursday he began to answer. Bergenn objected. The judge asked the jury to leave the courtroom, then told DaRos precisely what words he was to state to the jury when they returned: that there was a court case pending. Unk shook his head in disbelief.The same thing happened when Opie took the stand on Friday. When the judge told Opie that he was to tell the jury only that “a legal proceeding was pending,” Opie said to the judge “that’s what I say?” He was incredulous.When the question came to Penny Bellamy, town attorney for six years under DaRos, she too was told by the judge exactly what to say. Then she asked: “We can’t talk about the fact that townspeople testified before Judge DeMayo?” “No,” came the reply. All she would be permitted to say was “there was a court case pending.”Nor was DaRos allowed to discuss another key aspect of the taking, one he was deeply affected by he told an RTM committee meeting on Tabor in the summer of 2003. This issue centered on the enormous liability the towns of Stonington, Hamden and West Haven had faced after they permitted development on landfills or adjacent land. But Judge Cremins ruled that DaRos’s information about other towns could not be presented to the jury.The current First Selectman Cheryl Morris also took the stand last week. All three are running in the race for First Selectman this November.Morris was called to the stand not in her capacity as First Selectwoman, but in her capacity as a member of the Representative Town Meeting. She sat on the RTM’s administrative services committee, which investigated the property, and she voted with a unanimous RTM to take the property by eminent domain.She told the jury she was concerned about health and safety issues of future residents who might live in a proposed condo complex so near to the landfill. Town engineers said an area near the boundary between the landfill and the Tabor parcel contained contaminants and a methane plume.“I was concerned about future problems. Could something happen three years later?” she asked. No one could predict, she was told.What the RTM apparently may not have known in detail but which came to light last week in court was that in January and February 2003 Attorney Bellamy and Tim Hollister, who represents NEE and like Bergenn is a partner at Shipman & Goodwin in Hartford, entered into a series of secret negotiations that almost worked.From the witness stand, Bellamy testified that the town and NEE came extremely close to settling a 2002 Planning and Zoning board rejection of an NEE application. In fact, Bellamy testified the parties came so close that papers were drawn up that would have put more than 250 units of senior housing on the Tabor parcel. Indeed, the town had gone far enough to consider changing the zoning designation from industrial to residential.All was “on track” toward settlement, she said when “it occurred to me that we needed an environmental evaluation” because the Tabor parcel was next door to the landfill. In early March, Bellamy asked Fuss & O’Neill, the town’s outside engineers, to explain the potential implications of putting up housing in close proximity to the landfill.Bellamy, formerly of Wiggin & Dana in New Haven, said Attorney Hollister indicated there weren’t any big environmental problems. Meetings were set up to try to resolve the developing issue.A key meeting took place at Fuss & O’Neill in Manchester, Ct. Alice Bruno, a land use attorney, represented the town at that meeting. She testified briefly. When asked if the developer’s environmental team was taking the town’s concerns seriously, she told the jury in a strong voice “absolutely not.” Of concern to the town, especially DaRos, was that the developer had not done an extensive land analysis, known as a Phase III report.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.In answer to a Bergenn question Bellamy also testified that as town attorney she did not seek a written legal opinion on the decision to seize the land by eminent domain. As for working out a financial agreement rather than taking the land, DaRos testified the parties were far apart. The town had allocated what the owners paid for the land — $2.1 million— but not what the developers would have paid them — $4.7 if their option came to pass.Bergenn maintains that the town decided to seize the property after NEE informed the town that its next housing application would be for affordable housing. He has told the jury — -he often testifies as he asks questions — that the town was so fiercely against affordable housing that it simply took the land.But if the town were so against affordable housing, how does one explain that the town came so close to working out an agreement for 250 senior housing condos on that land?Shirley Rasmussen, the town planner, has testified that she was the one who wanted affordable housing, especially for seniors. This was the group most in need in a town that is known as one of the condo capitals in the state. The judge did not allow the letters involving the settlement into evidence but did permit the attorneys to question Bellamy about it.On direct examination by Attorney Callahan, Bellamy was able to tell the jury that the land fill contained “some fairly nasty stuff.” She said there was contamination along the border of the landfill and the Tabor parcel, “volatile organic compounds in the form of a lecheate plume that could rise into the air or on the property and could influence residents if they lived there.” Bergenn’s loud objections led to a discussion with all the attorneys at the judge’s bench.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.Bergenn asked DaRos many staccato like questions, narrowing his answers to yes or no. But the most effective cross-examination of DaRos came from Humphrey, who represents Thomas Santa Barbara, Jr. and Frank Perrotti, Jr. the owners of the land. They purchased the land in a bank auction for $2.1 million “as an investment,” Santa Barbara said.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. ###
You have a lot of nerve calling the judge names. It seems indicative of the we're above the law attitude in this town. If you want a synopsis of the case look at the ending of this article. Unk's comments are precious. I new I could go on the property. I took it anyway. It is truly amazing that the towns concern for its citizens health and welfare are traded off for Stealing a piece of property. If our convictions were so strong then why not do the right thing and pay all parties involved. That would have been the right thing to do.