After the Board of Selectmen spent more than an hour in executive session last week discussing a possible “Tabor Drive settlement,” Kurt Schwanfelder, the Republican Minority leader of the RTM, stood up and glared at Cheryl Morris. He had a question.
“Madame Selectman,” he declared in a booming voice, “I would like you to explain to us what it is you are doing?” He was incredulous, he would say later, of a proposed town settlement that would pave the way for dense housing”“275 condos on a parcel of land on Tabor Drive believed to be contaminated. The town’s Planning and Zoning Commission (PZC) has twice turned the project down; the second time, the developers wanted to put in 354 units.
In Branford, the name Tabor Drive is now synonymous with toxicity. After the PZC first denied the Tabor project in 2002, the town’s landfill engineers learned that a plume of contaminated ground water flowing from under the town’s nearby landfill to under the Tabor Drive housing site ““a sort of methane migration”“could be a Love Canal in the making. This discovery became the basis of a later town decision to seize the property by eminent domain. But apparently our town attorney, the Marcus Law Firm, overlooked the box of legal papers laying out this concern.
Several RTM members on both sides of the aisle said they were stunned when word came that a settlement Cheryl Morris and the Marcus Law Firm apparently endorse was dependent upon constructing condos on only 45 acres of the 77-acre site; indeed, even more condos than when the developers first began their misguided journey back in 2001 to build condos and a nine-hole golf course on a parcel zoned for industrial use.
From Schwanfelder’s perspective, David Doyle, the firm’s trial counsel, did not defend the town’s interests. “Personally my belief is that Doyle is so overloaded that when this came before Judge Silbert in New Haven, Doyle did not defend this (the town) adequately enough in our interests. So the judge said why don’t we see what we can do about settling it. And Doyle agreed.”
In the past, the town’s top officials have fought the project. Back in 2003, Anthony “Unk” DaRos, then First Selectman, wanted the developers to take these environmental hazards seriously. When they didn’t, the Board of Selectmen, the Board of Finance, and the RTM voted unanimously to seize the 77 acre parcel under eminent domain. Tabor was and is a collective concern. The reasons center on health risks as well as expensive litigation and damages if the town knowingly permits housing to be built on a potentially toxic site.
Before he left office in November, 2003, DaRos sent a letter to Ellsworth McGuigan, chair of the PZC, urging the PZC to reject Tabor again. He wrote that the contaminated soil was deposited prior to 1960, “at a time when no standards existed for the contaminants the soil contains.” He observed that other towns “faced millions of dollars in damages when they approved housing projects in contaminated areas.” The PZC agreed. After DaRos left office, Republican John Opie became First Selectman and he executed the powers of eminent domain. Both Republicans and Democrats were on the same page.
Before the town could formally act to seize the property, the developers filed a lawsuit in July, 2003, saying the contamination issue was merely an excuse to stop affordable housing, a “taking” of property “in bad faith” Their lawsuit against the town was heard before Superior Court Judge Anthony DeMayo.
In a decision five months later, Judge DeMayo agreed with then town counsel Penny Bellamy that the potential for serious contamination was a legitimate health concern for residents in the area. A number of town officials, including DaRos and Schwanfelder, testified at the hearing. The judge rejected the developer’s arguments that the town officials engaged in an intentional conspiracy to stop the project, that the town acted in bad faith. There was “no evidence” to support this theory, he found.
Rather, the judge supported the town’s efforts to prevent an environmental catastrophe. “The potential for serious contamination involves the health of residents in the area. There is the potential for litigation if purchasers of homes become victims of pollution. In summary, this project has the potential to cause serious physical and financial distress to the present and future residents and taxpayers of the town of Branford,” he wrote in his decision.
Fast Forward to 2007 and to a proposed settlement that the Marcus Law Firm and the developer’s attorneys are trying to sell to the RTM . The Eagle has heard that the developer, New England Estates (NEE) and property owners Thomas Santa Barbara, Jr. and Frank Perrotti, Jr., now propose new conditions and controls to limit landfill toxicity.
The developers say they will issue a bond or indemnify the town against potential health claims if prospective condo residents fall ill, and that they will erect a buffer between the landfill and the condos. They will also put in some playing fields the town wants. The NEE must desperately want this settlement because they even say they will pay all the Town’s legal fees, perhaps into the future. What happens if NEE decides to flip the property to a larger developer, which often happens in these cases, is anybody’s guess.
Doyle said Superior Court Judge Jonathan E. Silbert, a top settlement judge, recommended the settlement proposal be sent to the RTM, no doubt because the RTM must approve the transfer of land the town owns. It was not known if the State Department of Environmental Protection was consulted. In 2003 the DEP recommended that the Town acquire the entire parcel as a buffer because it was so close to a landfill. (Local health officials agreed.) The current proposal appears to violate the DEP recommendation. Nor is it known if the town’s very knowledgeable staff was ever consulted about this proposal.
So after all this, how did a settlement proposal involving Tabor wind up with massive amounts of housing on potentially toxic land?
Schwanfelder wanted his answer from Mrs. Morris, who is, after all, the town’s top administrative executive. “I want to hear from your mouth what it is that is happening?” he demanded.
When confronted with a policy question she should be able to answer, but cannot or will not, she demurs. This time Mrs. Morris turned to Doyle to serve as her mouthpiece. He would do the explaining since in this administration what the lawyers say goes.
Doyle’s response was to say as little as possible. “Mr. Schwanfelder, as you know the case was set for trial this Friday. Last week we met with Judge Silbert for a two-day mediation. He viewed our exposure differently than I did. He recommended that we should seriously consider potential ways of settling the matter.” No surprise, we might add, since Silbert is in the business of settling cases.
Earlier in the evening Doyle and Shelley Marcus, town counsel #2, spent an hour debriefing the BoS on Tabor in executive session, from which the public is excluded. The Board agreed to authorize postponing the trial until August and sent the settlement proposal to the RTM. John Opie, the lone Republican on the three-member Board, said he wanted to give the RTM and the Commissions the right to say “yea or nay” and he would comment afterward.
Doyle said he expected the presentation to a special meeting of the RTM would be conducted in executive session. Bill Horne, an environmentalist, complained that if that occurred, the settlement plan would have been heard by the BoS and the RTM without any public say. Doyle promised the public would be heard.But it is not at all clear that Doyle will get his executive RTM session. The Town Charter says all RTM meetings are public, but according to state statute the RTM could go into executive session to discuss pending litigation. The 12 RTM Republicans are likely to oppose executive session for the entire matter, and they are likely to be joined by a group of Democrats who have now split from Morris.
Republican RTM member Peter Black said: “An executive session would violate our Charter which mandates that all RTM meetings be public, and allows for no exceptions. The Sunshine Act (FOIA) sets a minimum of openness, not a floor. This is obvious in that agencies are never required to go into executive session, but, may under particular circumstances, do so without violating the Act. Our Charter sets a higher standard for transparency’‘
In an e‑mail today, he spoke eloquently in reminding fellow RTM members of their historical town meeting roots: “Open meetings of equals are the natural form of government under the political and theological foundations of Branford and New England. When the people of Branford voted in 1958 to create the RTM, ceding some of their natural rights, they did not give us the right to meet privately. They required our meetings to be public, and provided for no exceptions. Were we to meet privately, we would exceed the powers granted to us by the people of Branford .”
Executive session for Tabor was expected to be raised at tonight’s Valentine’s Day RTM meeting, but the meeting was cancelled because of weather conditions. That is good because it will give RTM Moderator James W. Bruno a chance to review a notice he sent out yesterday that seems defective under Freedom of Information Act rules.
\Without using the catch-word “Tabor,” the notice describes the topic of the special meeting as: “Pending Litigation”“New England Estates et al. v. Town of Branford. Executive Session Expected.”
\Republican RTM member Pam Fowler complained to Bruno yesterday that the wording was defective because in the absence of the word “Tabor” the public would not be clear what topic is to be discussed. She also asked that the statement “ Executive Session Expected” be removed “so as not to suppress public attendance since no one yet knows whether an executive session can or will occur.” Her request is expected to receive bi-partisan support.
When the Marcus Law Firm took over the case in November, 2005, after Opie left office, there were two major issues to resolve in state court: the fair market value of the property and the so-called “bad faith” issue the developers continued to fight. The owners believe that the property is worth $4 million not the $1,167.800 the town determined was the fair market value of the property on January 6, 2004, the date the town took title. A trial was scheduled for February, 2006, a year ago, but the Marcus Law Firm did not go to trial. Instead, both cases wound up in the complex litigation court in Waterbury. There they remained until mediation efforts began in New Haven earlier this month.
Looking back there had been hints. At a Board of Finance meeting last August, Shelley Marcus, in answer to a routine question about Tabor, discussed the “affordable housing” component of the case.
Republican RTM member Dennis Flanigan demanded an update. While Shelley Marcus was not specific, one thing was clear: putting housing, any kind of housing, on a potential toxic site was now back on the table. If Mrs. Morris disagreed, she didn’t say so.
As the trial date loomed ““it was scheduled for Feb 9th”“the Marcus Law firm agreed to a two day mediation session. How housing got back on the table is not known. Why Doyle permitted it to get there is not known. Why Judge Silbert would press for this settlement knowing the town’s PZC twice turned down the developers, as did the BoS and the RTM, is not known.
Schwanfelder’s view is that “these are desperate individuals,” he said of Marcus and Morris. “What they are basically doing is putting all of the assets of the town out to pay for what promises they made to individuals who contributed to Cheryl’s campaign: the developers, the engineering firms, the construction companies. That is all it is. This is in no way shape or form worthwhile for this community.” ###