Branford might try to settle rather than keep fighting in the Tabor land case. Word of that shift could come as early as tonight.
New England Estates LLC made a late appeal in July to the U.S. Supreme Court, trying to restore a $12.4 million jury judgment in the case that the Connecticut Supreme Court had thrown out.
The town’s initial response was to fight it all the way. Now the town is considering its risks and a possible settlement. The announcement is expected to come at Monday’s Board of Finance meeting at Canoe Brook Senior Center at 7:30 p.m.
The Tabor case began in 2003 when the town moved to take by eminent domain 77 acres of open space because of its proximity to the town’s contaminated town dump. New England Estates, a developer hoping to build condos there, sued the town. It won a $12.4 million judgment; the state Supreme Court then overturned that judgment.
NEE decided to appeal to the U.S. Supreme Court after the high court issued a ruling in a Florida beach property rights case that its lawyers felt gave them a way in.
While the Florida beach case held for the state, not the property owners, NEE’s attorney, Tim Hollister of Shipman & Goodwin in Hartford, said his reading of the Florida case “revealed a sharp debate among the justices about the right of a state court to reverse established property rights under state law.” He thought the Florida case provides “a clear signal that what happened here in the Connecticut Supreme Court may be of interest to Washington.” The firm also announced it had hired Michael Berger, a leading Los Angeles eminent domain lawyer, to file the petition to the Supreme Court. Berger asked Justice Ruth Bader Ginsberg for permission to file beyond the permitted date. He got it.
Will the Supreme Court take the Tabor case? Even Hollister said “petitions to the U.S. Supreme Court are always difficult.” Why? Because the U.S. Supreme Court receives about 10,000 petitions for certiorari or review each year, but decides roughly 75 cases each year. Even sure fire cases have not made it. In fact the Supreme Court’s docket is shrinking year by year.
No matter. The “what if’s” quickly came into play.
In an interview, First Selectman Unk DaRos, who has previously said he would do whatever it takes to keep fighting the case, is having second thoughts. “We are looking at our risks and whatever our exposures might be. We have to consider risk management in this whole thing,” he said.
From DaRos’s point of view, the highest court in the land takes a case like this in order to overturn it. “That is the reason they are taking it. Or there has to be a lesson. Quite frankly I wouldn’t bet you a penny on which way they would go. That court… I wouldn’t dare to guess which way they would go.” He noted his loss of trust in the court, citing a case last year in which it held that the federal government may not ban political spending by corporations or unions in candidate elections — - a reversal of long established precedents.
In the worst case scenario for DaRos, the high court takes the Tabor eminent domain case, reverses the Connecticut Supreme Court’s decision and reinstates the $12.4 million verdict, plus legal fees for Shipman & Goodwin. In the best case scenario it upholds the Connecticut Supreme Court’s ruling.
But first the high court has to take the case, a decision that is made by four of the nine justices. Why not wait to see if that happens? If the high court doesn’t take the case then the lower court decision is upheld and that’s that. But if does take the case and then the town wants to settle, a settlement might not occur and if it did the costs would rise exponentially.
It is this uncertainty, how to figure out the stakes, the costs and the possible impact on the town’s finances that last month led to discussions and phone conferences among some of the parties. Those involved included DaRos, Town Counsel William Clendenen, Jr., and Finance Director Jim Finch, whose insight into the financial issues has played a large part in the decision making process. Steven R. Humprhey, who represented the owners and is a partner at Robinson & Cole, reached out to Hollister on behalf of the town.
NEE was supposed to file its petition to the U.S. Supreme Court by September 24. However, on September 13, Berger asked the high court for an extension to October 21. It was granted.
This was the first signal that talks had begun in earnest. Now the results of those talks, in the form of a possible settlement, will come before the Board of Finance tonight.
The finance board met in executive session last Tuesday and heard from another town counsel, Kevin Shea, Finch and others. A variety of questions were raised.
The first hint of the direction the board might take is outlined in the board’s agenda for tonight’s meeting. It increases a bond authorization for Tabor drive from $10.9 million to $13.8 million. a $2.9 million increase. About $2.2 million will go to the land’s owners Thomas Santa Barbara, Jr. and Frank Perrotti, Jr. for fees the trial jury said they would have earned had the developer’s option to buy the land taken place. When the jury awarded the developers $12.4 million in September, 2007, it also awarded the owners $340,000. Over three years this $340,000, plus ten percent interest, plus another set of fees has reached $2.2 million. Moreover, the $2.2 million will continue to grow through this year and next if the case is accepted by the U.S. Supreme Court. Presumably the remaining $900,000 will go toward settlement costs for NEE and its law firm.
In the end, First Selectman DaRos is beginning to feel that the risk isn’t worth it.
“We would be rolling the dice,” DaRos said in the interview. “Many people forget that this whole thing started out as risk management to begin with. The reason we took the land was to reduce the risk for residents of the town of Branford. There is a history in other towns that they allowed construction near a landfill and later residents sued their towns, even if they had not been sick. And they won.”
“So this whole thing was risk management. The problem we had in between was there was a period of bad lawyering, very bad lawyering,” he said for emphasis, referring to actions taken by David Doyle, the firm’s chief litigator, during the administration of his predecessor Cheryl Morris. Ed Marcus, the law firm’s chief partner, denies the charges.
“The town could not defend itself at that trial,” he said. “So we are still picking up the pieces.”
The Tabor case spans the administrations of three selectmen. DaRos’s administration has filed lawsuits against Marcus and the town’s insurers. Both cases are still pending.
Now the wheel has come full circle. “We are back again to risk management,” DaRos said.
###