Did the town of Branford legitimately seize the Tabor land tract because it feared land contamination, illnesses and subsequent lawsuits? Or did it act dishonestly, fraudulently and in bad faith in order to exempt itself from affordable housing laws it did not like?
That long-simmering question made its way before the Connecticut Supreme Court Tuesday as the justices heard three hours of arguments in an effort to finally resolve a complicated eminent domain case that has caused deep division in the town.
Now the highest court in the state will determine if a jury’s $12.4 million verdict against the town in this closely watched case will stand or will fall. The court will also consider the decision by Superior Court Judge William T. Cremins Jr valuing the parcel at $4. 6 million in 2007. The 77 acre tract lies off Tabor Drive not far from the heart of town.
Wesley Horton, a top constitutional attorney, represented the Town of Branford in court Tuesday. In an effort to dismantle the verdicts, he began the opening session by arguing that Branford had zoned the Tabor land site for industrial use only, and it should remain that way. The site lies next to the town dump.
Horton — who won another controversial Connecticut eminent domain case, Kelo v. New London, before this court and the U.S. Supreme Court — gave the justices a road map. And they listened. He is a commanding figure in the courtroom, one who invokes respect and deference.
Few questions were asked during his argument, making it difficult to know the precise concerns the justices had.
Essentially Horton said that the legislative history surrounding affordable housing laws in the state shows that “the legislature wanted to preserve industrial zones as much as it wanted affordable housing.” Affordable housing, which developers typically embrace after previous development applications are denied, “should generally not go in industrial zones,” Horton said.
He spoke quickly, moving his hands as he went along. He had a plan.
“Your honors have not looked at this before,” he said, suggesting perhaps they might come to a decision to preserve industrial zoning by analyzing the relevant statutes.
Should the court take this route and order a new trial, then a new land valuation trial before another judge would be held. Whereas Judge Cremins previously found that the highest and best use of the Tabor property is new housing development, another judge would have to accept evidence that the highest and best use of the land is industrial. That would lower the town’s cost considerably in paying just compensation for the land.(Or the town could settle.)
If a change occurs in the valuation, that would affect the major part of this case, the efforts by the developer, New England Estates, to successfully argue that the town wrongly seized the land, depriving it of lost profits.
William H.Clendenen Jr., the town’s counsel, also appeared before the judges on behalf of Branford. He argued the “bad faith taking” part of the case.
To begin with he said there was actually only one case, not two.
“You have one town, one piece of property, one act, one event,” he said. The compensation went to the land’s owners, Thomas Santa Barbara Jr and Frank Perrotti Jr., not to the developer, New England Estates (NEE). NEE had only an option to build. It did not own the property at the time of the taking and was not entitled to $12.4 million in lost profits, he said.
Justice Joette Katz interjected, reminding Clendenen that the jury had decided in the developer’s favor.
“They had no right to hear it,” Clendenen replied, referring to established principles of law that say a plaintiff may be compensated only once for just damages for the same injury. The town maintains the trial judge’s decision to go forward with the second case after the valuation case took place was wrong. The judge’s decision, he said, enabled a double recovery for the same piece of land.
Hollister Steps In
For Tim Hollister these arguments held no merit. Hollister, a partner at Shipman & Goodwin, has represented NEE for the last six years. He has lived through every legal action and knows the case as only a lawyer who has handled it can. He argued Tuesday that his client,New England Estates, was wronged by the town’s actions.
“We could not disagree more. We have not dragged the parties through six years of litigation over land that was zoned industrial and exempt from the statute. This property does not meet either of those two critera.
“The key point is that the 77 acres is not just an industrial zone. It has an overlay zone called a special development area. It is undisputed that this SDA [Special Development Area] was in place at all times from 1998 to 2004 in this case. In 1988 with the SDA in place, the former owners applied for a site plan procedure. and the town approved a PDD [Planned Development District] site plan for 298 units.
“Site plans are approved with conditions. It is not zoning.”
But Horton said that without a PDD, which the town Planning and Zoning Commission had eliminated — or let expire — the SDA meant nothing.
Hollister argued that when the town took title on Jan 5, 2003, the egg that was NEE was permanently cracked and could not be uncracked.
With the title, NEE lost its contract, its permits, and to a large degree its ability to appeal “because we no longer had an interest in the land,” Hollister told the justices. “Land Use 101, you need to have an interest in the land. NEE was left with nothing other than a damages remedy because of the town’s conduct.
“This case is in one sense a bookend to Kelo v. New London,” Hollister concluded. “ Eminent domain used in good faith for economic developement is constitutional. Bad faith may not be used dishonestly or fraudulently or for reasons that are patently false and it may not be used by towns to exempt themselves from laws with which they may disagree.”
He asked the justices to affirm the jury’s verdict.
Clendenden responded that the remedy the owners —not the developers — were entitled to is the just compensation provided by the Fifth Amendment, when land is taken. “They [the developers] are not entitled to use federal civil rights laws to create a whole new series of remedies.”
Overall, the justices seemed to be struggling to get their arms around a case that is procedurally, legally and historically complex. They will probably decide the case by the end of the year.
Two justices, Chief Justice Chase T. Rogers and Christine Vertefeuille, did not sit because of conflicts of interest. Justice Rogers’s husband is at Robinson & Cole, one of the law firms in the case. It is not known why Justice Vertefeuille did not sit.
More than 60 visitors attended the arguments, including Branford First Selectman Unk DaRos, the architect of the taking back in 2002; Penny Bellamy, then town counsel; and a number of other attorneys who have handled the case and the trial for the town.
“I think we presented everything we could. Now we have to wait for the judgment,” DaRos said afterward.The only laugh of the day came as the session ended and acting Chief Justice Flemming L. Norcott, Jr. rose to say: “I will have a decision in a couple of minutes.”
Then the five justices, holding a heavy stack of the case briefs in their arms, filed out.
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