In a bold and unanimous vote, The Representative Town Meeting has rejected a state judge’s settlement proposal that would have enabled a developer to build 275 homes on 45 acres of land located near the contaminated town dump.
Republicans and Democrats alike, including those Democrats who are aligned with First Selectwoman Cheryl Morris and those who are not, voted swiftly to reject a settlement proposal that the Marcus Law Firm, the town’s attorney, had endorsed.
The firm’s litigator, David Doyle, who is handling the Tabor case, and James Bergenn, the attorney for the developer, New England Estates (NEE), signed off on the deal in February, pending town approval.The settlement proposal was dependent upon RTM approval because the Tabor land had been seized by the town through eminent domain in 2003. If the RTM had agreed to the settlement, it would have conveyed the land back to the developer and then the town’s other land commissions would need to approve. But that did not happen.Sandra Reiners, the Chair of the Ways and Means Committee, explained why: “We have heard the new information, we have weighed the new information, and we have determined that our original judgment, that development of this nature is not appropriate for this site, was the right judgment.”Reiners and Gail Chapman-Carbone, chair of the Administrative Services Committee, held three joint committee hearings on the proposal that Superior Court Judge Jonathan Silbert had crafted. The hearings drew scores of residents and were televised. Reiners and others on the committee heard from many in town.“This is not something that Branford wants; this is not appropriate land use. (LINK Branford Love Canal.feb. 14) I have not heard a single comment to the contrary. I am extraordinarily pleased that that is the reaction I am getting from people,” she said just before the joint committees unanimously rejected the settlement offer.Bergenn maintains the legal landscape has changed. At a hearing last month,he presented his case, saying the town’s own outside engineering firm, Fuss & O’Neill would be his best witness. In recent depositions one of the firm’s top officials said that but for two acres adjacent to the landfill, “there is no contamination on this site,” Bergenn told the group. NEE would erect a large buffer zone between the dump and the condos, provide landscaped ball fields for the town and insurance protection should residents, or perhaps ballplayers, become ill.In recent days, the Eagle has learned more about the proposed project which is located on 45 acres of a 77 acre site. It is not called Tabor. If built, it would be called “The Fairways of Branford,” absent the golf course. The developers, New England Estates, consist of three partners: Andrew Forte, Alan Pizzolorusso and Don Stanziale.Their most recent housing experience was in North Haven where two of the partners developed 72 town house units for a senior citizens project known as Quail Run Village. The Tabor project, if built, would consist of at least 275 condos, whose average footprint would be about 1,300 square feet and whose price would be about $280,000.According to the developer’s financial analysis made available to the RTM committees, Tabor, which is four times as large as Quail Run Village, will cost around $68 million for the land, the cost of construction, the cost of roads and various other expenses. Anticipated sales would be in the $88 million dollar range, leaving the developers with an anticipated $20 million in profits.The $20 million figure may be an unrealistic number, however. “This is an insolvent project,” Kurt Schwanfelder, RTM Republican Minority leader, said in an interview. He had asked for NEE’s financial data at one of the hearings and with others on the committees analyzed it. He said the site had been mined for many years and its soil has so deteriorated that the developers would need hundreds of thousands of yards of soil just to get the topography up to the level of approval. The full topography cost is not detailed in the financial analysis, he said.Square footage is a key measure of space and the quality of design. At Quail Run Village it was roughly $80.00 per square foot, at the low end of the scale. NEE’s plans were to use an $80.00 per square foot figure for the Fairways as well. The eighty dollar figure is not cast in stone. If NEE listens to its experts, the cost will go up to $95.00 a square foot by the time construction ends.At an RTM committee session explaining the benefits of settlement, Bergenn, a partner at Shipman & Goodwin in Hartford, toted up the amounts the town could face if it lost at trial, figures “in very bold type,” Reiners observed.RTM members said their understanding of the town’s liability was vastly lower than the projected $21.8 million Bergenn cited, especially since NEE projections were made on the assumption that the town’s land boards would approve the project and change the zoning from Industrial to a Housing Opportunity District. The Planning and Zoning Board has turned the project down in the past, agreeing to neither.Chapman-Carbone said she did not find the facts any different from what the RTM learned in 2003 and 2004 when the property was seized because then First Selectman “Unk” DaRos, the Board of Finance and RTM all said they were justifiably concerned that the dump had the potential to contaminate the adjacent land. Bergenn maintains that “real fear” of contamination is not a legitimate reason to seize property.The RTM motion to reject the proposal was made by Kurt Schwanfelder, the Republican minority leader, who said “This is not a developable parcel of property.” Rep. Frank Twohill said he viewed the RTM’s rejection “as a pre-emptive strike to protect citizens.”Bergenn stood at the back of the room and listened as the settlement plan evaporated. From his perspective the developer offered the town an extraordinary deal and if the town rejected it, the town will have to live with the consequences.Doyle now faces a trial when he has spent more than a year seeking ways to avoid it. The firm’s settlement mind-set has been of concern to the public, to other lawyers in town and to the RTM. Citizens have asked for new counsel.But removing Doyle, who is an associate at the seven lawyer firm, was not raised at the April 11 RTM meeting, probably because the RTM leaders who wanted a unanimous vote to reject the settlement proposal knew they wouldn’t get it if they linked the proposal’s rejection to the law firm’s representation.Wiggin & Dana of New Haven and McCarter & English of Hartford, firms with expertise in the area of eminent domain, affordable housing and environmental law, were the town’s attorneys until the Marcus Law Firm took the case in 2005. The two outside law firms had been retained by DaRos, a Democrat, and kept on by Opie, a Republican. Both former Selectmen have expressed dismay that First Selectwoman Cheryl Morris decided to change law firms in mid-stream.Eventually both cases, along with a separate one involving the prior owners, Thomas Santa Barbara, Jr., and Frank Perrotti, Jr., were transferred to a complex litigation court in Waterbury. The trial, scheduled for this February, is now slated to begin August 7th. Since the RTM has rejected the proposal, the other Branford land boards will not have to vote.At the RTM meeting, Democrat Lisa Avitable said she rejected the Tabor proposal on health and safety grounds. Avitable, a loyal Morris-Marcus follower, took the occasion to give the Marcus Law Firm a plug, the only Representative to do so. “I feel we have excellent representation and that we will prevail in court.”There is still intense public concern about Doyle and the Marcus Law Firm “prevailing in court.” Schwanfelder said “other steps are expected to be taken,” but he was unusually circumspect about his plans. ####