It is not every day that outside lawyers raise questions about the capacity of a town’s counsel to represent it at trial.
It is rarer still for those questions to be asked in public, in this instance, at an emotionally charged informational hearing that drew some 60 residents, RTM members and others. The topic is the hot button issue of the day— the Tabor Drive land parcel, a 77 acre parcel that the town seized under eminent domain in 2003 because it feared contamination from a bordering town landfill.
One environmental attorney, Branford resident Karyl Lee Hall, raised the issue that others had discussed in whispers. After outlining to the public her concerns about David Doyle, the trial attorney, she ended by saying: “We should inquire further whether we are being represented adequately.” She won a round of applause.Soon after, RTM member Lonnie Reed turned to face the developer’s attorney, Jim Bergenn, who was standing in the back of the room. “We have a killer litigator, no offense intended,” she said, as Bergenn smiled and took a small bow. “He’s up to speed. He’s got a team behind him,” referring to his law firm, Shipman & Goodwin. “And we have the Marcus Law firm, a six person firm.” Shelley Marcus, town attorney #2, turned around in her seat: “Seven,” she noted for the record.The Tabor case is no ordinary case. And Doyle’s performance at a joint RTM Meeting did not inspire confidence, several RTM members said. “Do you have the emotion? Do you really believe you will prevail? I want to hear it with feeling, with passion,” Kurt Schwanfelder, the Republican Minority Leader, told Doyle.Doyle is the firm’s only litigator. And while many who have seen him perform in court say he is quite good, the question is whether the firm can provide a team that will be up to speed on a case that centers on complex areas of law: eminent domain, affordable housing and the examination of scientific data.To make matters even trickier, Bergenn says his best evidence to show the Tabor parcel was not contaminated at the time it was taken comes from the town’s own engineers. He says only two acres abutting the landfill were contaminated and protective buffer zones would be created around it.If that were not enough, this case actually has three separate lawsuits: the value of the property, the legality of the “taking” in the first place and the cross-complaints filed by the original land owners, Thomas Santa Barbara, Jr., and Frank Perrotti, Jr. So far they have rejected the proposed settlement between New England Estates (NEE), the developer and the town. The cases are scheduled to be tried on August 7th in a complex litigation section of Waterbury Superior Court — -unless the RTM and other land boards agree to the proposed settlement.At the first Tabor hearing on March 22nd, Bergenn, who represents NEE, distributed packets of information to the RTM joint committee, put up maps, and used an easel for other cardboard displays.This week it was the town’s turn, but Doyle was visibly uncomfortable in the role. He had no packets. He had no maps. He had no cardboard displays. He had nothing visual to counter Bergenn’s presentation, even as Bergenn distributed more engineering information to the RTM.Indeed, as the evening began to unfold, it became clear that Doyle had done virtually nothing to give his own RTM committees the bare bones documents they needed.Sandra Reiners, the chair of the Ways and Means Committee, asked Doyle about a “memorandum of understanding” that came before the Board of Selectman at their Feb. 7th meeting. Doyle had not given it to her or to Gail Chapman-Carbone, the chair of the Administrative Services Committee or to their committee members. She asked where it was and why she and the others didn’t have it.At that point, John Opie, the Republican Third Selectman, who was seated in the audience, looked through his papers, found a marked up version and gave it to Reiners. He said he was stunned Reiners didn’t have it. This was the first time she had seen it. First Selectwoman, Cheryl Morris, had not given it to the joint RTM Committee chairs either.Then there was the joint motion to postpone the case until August 7, a 5‑page document that the developer’s lawyers wrote with Doyle’s approval. The joint motion outlines the settlement and its deadlines and followed a series of mediation efforts led by Superior Court Judge Jonathan Silbert.Penny Bellamy, town counsel under Unk DaRos, produced the joint motion at the Tabor meeting. She confronted Doyle about it. Her concern centered on the language, that the developer and the town had already reached a settlement pending the necessary approval from the town’s land boards. “The semantics are unfortunate,” Doyle told her.The joint motion, signed by Bergenn’s firm, is dated Feb 6. This means that Doyle probably agreed in principle to a settlement even though the Branford Board of Selectmen had yet to meet to tell him he could do so.The BoS includes Morris, Dick Sullivan, the Second Selectmen and Opie. The three heard Doyle’s presentation for the first time in executive session the following day, February, 7th, and unanimously approved sending the settlement proposal to the RTM.The Feb. 6th date is of concern because it raises the question of whether Doyle agreed to the settlement idea without first running it by his client.“Either the Board of Selectmen was intentionally duped that day or they weren’t thinking straight,” declared Anthony “Unk” DaRos, former First Selectman, told the audience.Opie, the former Republican First Selectman who followed Unk into office, said “I don’t think we were duped.” He was not referring to the date issue, which just came to the floor, but to the unanimous decision of the Board of Selectmen to send Tabor to the RTM. This was necessary because the town owns the land and the developer wants it back.And there was another issue.“If a respected judge says we should examine this, and we are hearing about a potential exposure of $20 million,” Opie said, then the issue belonged before the RTM, not because the BoS was passing the buck, but because the Board of Finance and the taxpayers would be furious if the town lost the case, was forced to pay millions and it all happened without public analysis. The RTM provided the public forum.Mrs. Morris, who has not publicly commented on the Tabor case until this week, did so in one sentence: she said she opposed it. But she had a second message, this one a defense of the Marcus Law Firm. She pointed out that Judge Silbert —not the town’s law firm— was the driving force behind the settlement. Morris attempted to distance her administration from prior ones, saying she had inherited Tabor and would handle it well.At that point, DaRos jumped up to say he was the one responsible for making the decision in 2003 to seize the 77 acre parcel because the landfill was contaminated and a plume of methane gas had made its way toward a corner of the Tabor property. Nearby homeowner’s wells were also contaminated.Opie said that during his administration, from 2003 to 2005, his attorney, David A. Reif, a commercial litigator with McCarter & English in Hartford, “had no doubt we would prevail. He was handling the property valuation; Wiggin & Dana in New Haven was handling the “taking” issue. Opie kept both law firms on, he said, because they were the most knowledgeable and they were on track to win.In prior administrations town counsels routinely sent cases to other attorneys who specialized in certain areas of law.Cheryl Morris was elected in November, 2005 and overnight the small Marcus Law Firm, scooped up every file that any lawyer representing the town had, Tabor included. Reif had been scheduled to go to trial on the valuation of the property in February, 2006. But the Marcus Law firm took his case, and then asked for a delay.Meanwhile, there were reports that a compromise plan involving massive development at Tabor was on the boards again. Specifically, the developer wants to erect a massive 275 condo development despite the fact that the town’s key elected and appointed officials – the BOS, the RTM and the Board of Finance all voted to take the land . In addition, in 2003 the Planning and Zoning Commission denied NEE’s application, excerpts of which Reiners read to the audience.Whether Doyle ever really intended to try the case is another question. James Perito, who as an outside attorney handled numerous tax appeals cases for both Opie and DaRos, asked a revealing question at the meeting the other night. He had been present at a Tabor hearing a year ago, on behalf of the Branford Land Trust. Doyle was there too.“How similar is this settlement from the one we all discussed a year ago in the chambers of (Superior Court) Judge (Linda) Lager,” he asked. She had apparently opened the session by asking the litigants how the settlement plans were coming along.Doyle looked completely taken aback. It was a different settlement, he said. “But what about the land?” Perito said, reminding him. The deal then as it is now is that the land would be returned to the developer. “Yes, the land,” Doyle replied as his voice trailed off.What Perito’s question disclosed was that three months after she took office, Morris and Marcus were already ready to settle this case but they knew that since the Queach land deal had just produced an uproar it was not feasible politically to do so.Soon after, the Tabor cases were combined and transferred to Waterbury. Trial was set for this February, but Doyle was not ready. He has spent since Thanksgiving on the case, he said, but a good deal of that time was devoted to depositions that he and Bergenn were taking at the Marcus Law Firm. Doyle moved for a trial delay on January 11th. The Waterbury trial judge, William T. Cremins, denied the town’s motion. Now the town was stuck.When the trial judge said proceed to trial, and Bergenn was ready to do so, mediation began looking very good. It fit the court’s requirements, since it is part of the court process before trial. But it also fit Doyle’s needs. At very least it bought him six months — -so if the town turns him down on settlement, he gets more time to prepare for trial.After listening to two hours of exchanges, Hall told the audience that she was deeply concerned that the town was not being represented well. She was applauded.She said if the Feb 6th document was inartfully drafted, as Doyle noted, “then our attorney is responsible for that inartfulness.” She was also concerned that the so-called “settlement,” which is, after all, a proposed contract, was apparently not in its final form when it was shown to the BoS.Reiners also had to ask for financial assessment data from Bergenn and Kurt Schwanfelder, the Republican Minority Leader, asked the attorneys to provide the “pro forma” documents that would show the financial feasibility of the project as well as the developer’s financial backing. According to 2001 incorporation papers filed with the Secretary of State’s office, NEE’s top partner is Alan Pizzolorusso, who lives in Watertown and has an office in Bridgeport.One thing is clear: a seven person law firm with a long case load involving other clients besides Branford is now handling the town’s legal business as well as the possibility of this trial. This has happened on Cheryl Morris’s watch.Does the town settle and as Doyle put it, get a lot of good stuff on the developer’s “dime.” Or does the town go to trial?Frank Kinney, a former Third Selectman who knows Branford government well, put it this way to the audience: “What you are asking is for the RTM to turn its back on everything they have done for the last ten years. Then you are going to Inland Wetlands and asking them to approve something in violation of their own rules. Then you want to go to Planning and Zoning and tell them to violate half of their regulations. I would hope that the RTM would reject this proposal and get into the courthouse and win this case.”###