Waterbury— Should members of the Board of Selectmen and the RTM, the top Branford officials involved in the decision to take the 77-acre Tabor land by eminent domain back in 2003, be able to tell the jury how they came to make their decision?
To the average citizen the answer to the question seems obvious: In a case involving eminent domain, where the reason for seizing someone else’s land is essential to understand, it would seem necessary to allow a jury to hear why the officials acted the way they did. Their statements go to the heart of the case.
Superior Court Judge William T. Cremins Jr., who is overseeing the Tabor trial, seemed to agree with Kerry Callahan, the lawyer for Branford. Indeed, he ruled at 12:20 p.m. on Friday that the town’s witnesses could testify about their thoughts when they put in motion a plan to seize the parcel in 2003.“The issue is their motive for the taking,” Judge Cremins said of the Selectmen and the RTM, adding it goes to their “state of mind” at the time they made their decision. The judge went on to say that whether the property was actually contaminated was not the issue; it was what town officials believed at the time.The judge added that Callahan could ask his witnesses — -Former First Selectman Anthony “Unk” DaRos and RTM member Kurt Schwanfelder, among others — -about the “investigation, remediation of the property and ball fields.” These are the reasons the town stated when it took the property. The developer’s attorneys would, of course, have the right to cross-examine. When attorney James Bergenn, the lead attorney for New England Estates, protested, the judge said: “I’ve made my ruling. You may disagree with it.”But Bergenn and Tim Hollister, both partners at Shipman & Goodwin, did not take the ruling as the final word. Once they heard it they went on the offensive. The issue of what the jury may hear came up when Callahan was cross-examining Don Stanziale, one of the owners of NEE. NEE had an option to build on the 77-acre parcel but did not have any town permits to do so.Callahan asked Stanziale if he recalled a meeting with DaRos in which DaRos told him to get in touch with the town’s outside engineers, Fuss & O’Neill, to discuss environmental problems at the site. Just as Stanziale was about to answer, Bergenn stood up and said, “We have a 4.3 issue, your honor.”Judge Cremins had asked Bergenn and Callahan to submit a memo on section 4.3 on Friday. Section 4.3 permits the trial judge to exclude evidence if he believes its probative value is outweighed by the harm likely to result from its admission to the jury. For example, in a criminal case the judge may keep the jury from viewing photographs of a murder victim because the prejudice to the defendant may outweigh any probative value the photos may have.The issue of prejudice had come up before. After opening arguments, Bergenn claimed that if Callahan or a witness uses the word “contamination” in referring to the land, the word itself is so prejudicial that “it’s like calling someone a molester,” he said. He has said it before.The judge had hoped to discuss the legal issue after Stanziale finished his testimony, but without a ruling Callahan couldn’t cross-examine him about DaRos’s concerns about the land. So the judge sent the jury out. A bitter fight ensued.The land seizure was all a pretext, Bergenn said. The judge observed that the decision makers in the town had to be able to speak as to why they made their decision ‑even if the information they received was wrong. “It’s a pivotal issue,” Bergeen said as he and Hollister whispered to each other in the well. From Hollister’s point of view the town knew there was a pending affordable housing application and they didn’t want it so they devised a pretext to seize the land by eminent domain.“It’s the whole case,” the judge replied, asking aloud, “if I get information that is wrong, does it make the decision a pretext?” Pretext means the stated reason is not the actual reason for taking the land.The judge appeared to be deeply concerned about the town’s ability to put on its case. At one point, he gave a hypothetical to the attorneys. “I’m a Selectman or a member of the RTM. I ask them ‘what were you told about this property that made it the basis for taking it. Someone from Fuss and O’Neill told me the property was contaminated,’ is the answer. If that question cannot be asked then no member of the RTM can speak as to why they made their decision even if the information they got was wrong. “Bergenn was insistent that even if the information were false, there was no defense. He would have the town try the case on his view of the evidence, that is, that the taking of the Tabor property be based on proved, unassailable facts and conditions that there was no contamination at the site, according to state Department of Environmental Protection remediation standards known as RSR’s.But Callahan seems to be saying that the taking could be based on the fact that there was evidence of some contamination, that it could spread and that the town’s decision to seize the land was a prudent action to take in order to prevent illness and enormous liability in the future. In short, the town officials made a policy decision based on the facts they had at hand, including the experiences of other Connecticut towns.The idea that Bergenn was now trying to dictate the town’s case seemed to cause alarm on Callahan’s part. In the last week, Bergenn and Hollister have mounted a full-scale attack on what town evidence they think the jury should hear. Callahan has already lost the ability to call expert environmental witnesses.(His firm got the case in early May after First Selectwoman Cheryl Morris reversed her stand and hired two outside law firms to handle the case.). According to court papers, Callahan was not informed of the deadlines. Bergenn objected on the grounds of lateness and the judge agreed.Just before lunch Hollister suggested that he write a proposal that would draw the broad outlines of testimony that perhaps both sides could live with. The judge said he wouldn’t order it, but he wouldn’t reject the effort either.Hollister spent lunch hour not eating lunch. He returned with an outline of a proposal that Callahan has no knowledge of. The outline purports to tell Callahan how he must try its case. “We have come up with a compromise,” Hollister told Judge Cremins.“We will back off our more categorical position that we showed before the break,” he told the judge as the now silent Bergenn sat at the table. Under the Hollister proposal, the town would be able to present only the information that the RTM and one of its committees received about Tabor. The RTM must decide on land transfers. “All that comes in,” except, Hollister added for several environmental reports although those who wrote them could testify about them to the jury. It did not appear that Hollister wanted DaRos to testify. But DaRos is crucial to the town’s case. In the past, Bergenn has publicly voiced his worry about having Unk testify.Attorney Callahan, who is chairman of the litigation department at Updike, Kelly & Spellacy, seemed not to believe what he was hearing. “Your honor ruled on this about 12:20 p.m. The court made a ruling and it was correct. Now the plaintiffs have come back in here to tell us how to defend our case.”Callahan pointed out that last week the judge denied one of Callahan’s motions. He told the judge he didn’t come back and continue to argue for it. He accepted the judge’s decision. But Hollister told the judge, “You had not really ruled and we think we are trying to avoid appeal issues.”The word appeal apparently did it. The judge said: “Why is the compromise inconsistent with my earlier ruling? As I look at it it is not inconsistent,” he told Callahan.Callahan said if the judge really was serious about his looking at the so-called compromise he would need time to do it. He seemed genuinely stunned by the turn of events unfolding before him. He was now being told he might not be able to call his own witnesses and that the evidence they give may well be restricted. “The Board of Selectmen made a decision. What about them?”The judge looked annoyed. “It sounds like there is no agreement,” he said even though Callahan had only heard the oral proposal for the first time minutes before.“I’ll just take this as it goes along,” the judge said. “We have a jury waiting.” ###.