New Haven Independent

James Bergenn, the attorney for New England Estates, (NEE) the developer, told the jury that when the town seized the 77-acre parcel known as Tabor under eminent domain it hid its true reasons from the town’s governing bodies, asserting there was contamination of the land when there was none. In doing so, he told the panel, the town abused the law of eminent domain which enables a governmental body to seize property for the public good as long as just compensation is provided.

“This case is unlike any case you have ever heard of in your lives,” he told the jury of three men and three women. “You are in an honored position—-you are sitting as the Constitution….This case is about not playing by the rules.”

Bergenn’s opening comments on Tuesday came minutes after Superior Court Judge William T. Cremins, Jr. instructed the jurors that they would be the sole judge of the facts but that they must accept the law as he gives it to them at the end of the case. The jurors were given notebooks to take notes. In the gallery were First Selectwoman Cheryl Morris, Second Selectman Richard Sullivan, Peg Hall, the town’s waste manager, and David Doyle, who initially represented the town in this case. He sat in the spectator section next to Mrs. Morris and did not participate in the trial.

Overnight the courtroom on the third floor of the Waterbury courthouse had undergone
an expensive electronic makeover. Computer monitors to display the latest in video transmitted evidence, courtesy of NEE, were set up for the judge, for witnesses, for the attorneys and for the jury whose computer-magnified photos were viewed on a screen in the well of the courtroom. Only the public was left out.

It had taken five days to select the six-member panel. The third and final alternate juror was selected in the morning. The jury officially took their seats at 2 p.m. August 14. They settled in as Bergenn, electronic wand in hand, pointed to the map of Tabor he had ordered placed on the screen.

“You see the residences on the right side, residences on the left side, and the landfill is near the bottom. There is a Church and a parking lot. You see it is all residential,” he noted. He told them later that from 1986 to the present there have been state reports on the landfill and it has been in environmental compliance.

As he told the Representative Town Meeting last March when he and Doyle put forth a settlement proposal, he expected the town’s own engineers, Fuss & O’Neill, to be his best witnesses. Bergenn told the jury that the town’s decision to take the land came over a seven week period beginning in May, 2003. He says the town’s top officials knew from Fuss & O’Neill that there were “no environmental problems” with the land.

He says the reason the town seized the land was to stop an affordable housing project that NEE had recently submitted. The town’s Planning & Zoning Commission had earlier denied NEE a permit to build market value housing.

The law, he said, “does not allow the town to take private property just because you want to. It must be done for public use,” and the only public use the town mentioned was ball fields.

The deep concern for the RTM, the Board of Selectmen and the Board of Finance, all of whom unanimously approved the taking of the land, was the potential for future liability from potential residents stemming from the still open town dump. The Board of Finance approved obtaining the land on June 30, 2003, and the RTM followed on July 9, 2003. The RTM did hear discussion of possible contaminants stemming from the activity of the nearby landfill, but the RTM was also told that current conditions were not known because the land was privately owned and the owner had restricted access.

There had been serious environmental issues in the past. In 1991, the Connecticut DEP
ordered the town to connect homes located near the landfill to the water system and the town spent millions to do so. Unk Da Ros, then the First Selectman, was concerned that the developers were not taking the environmental hazards seriously after environmental studies found that a plume of leachate was migrating from the landfill to the Tabor parcel and that some contamination had occurred. DaRos was concerned, he said back then, that other towns “faced millions of dollars in damages when they approved housing projects in contaminated areas.”

Bergenn is suing for lost damages and profits, and in interviewing potential jurors, he made it clear he was looking for high lost damages, presumably in the millions of dollars, as he has said before. The judge has already valued the land at $4.6 million, presumably believing the site is uncontaminated.

At the time New England Estates wanted to build on the land it was zoned industrial, though NEE argues that an earlier zoning rule was in effect that would have permitted residential housing. When NEE took an option to buy the land, it did so without having any town permits to build. It assumed it would get them though it might take time.

Kerry Callahan is representing the town. In his opening statement, he told the jury that in 1980, a decade before the owners, Thomas Santa Barbara, Jr. and Frank Perrotti, Jr. purchased the land for $2.1 million at a bankruptcy auction, the land had been owned by Dan Cosgrove.

Cosgrove was the Boss of Branford and a well-known land owner and developer. He was also a key zoning official. Cosgrove used the land for excavating, removing all the top soil and other materials. “It was stripped to the bed rock.” Callahan said and it needed remediation. “It was a 77-acre hole.” Actually Cosgrove told the Eagle in a recent interview that while he did in fact strip the land, he described it as flat, so flat you could land a plane on it. (He also offered to sell it to the town back then but the town didn’t like his price.)

What appeared to be the major concern of DaRos, Callahan said, were health issues that could be laid at the town’s doorstep. DaRos will testify at the trial about his concerns and responsibilities to protect the town and its residents. He told the Eagle recently that if he had to make the decision all over again, he would do the same thing. “There had been huge exposure in the past,” Callahan said referring to other towns facing similar situations.

Callahan told the jury that Penny Bellamy, then town counsel for First Selectman DaRos, became concerned about putting residences near the town dump. The town believed there was concern that the parcel is contaminated with volatile organic compounds and faces the migration of a “leachate plume” and methane gas from the town landfill. Bergenn maintained to the jury that the State’s Department of Environmental Protection (DEP) had taken readings at the dump site for years and reported no violations of state regulations.

Earlier Callahan named the witnesses he will call and they are some of the same town officials who testified at a hearing before Judge Anthony DeMayo in the fall of 2003, after the town decided to take the land and NEE sued to stop it. Judge DeMayo, sitting in New Haven, found that the developers had “no evidence” to support their theory that town officials led by ringleader DaRos had conspired to take the property in order to avoid affordable housing.

Contamination concerns, DeMayo found “came from all sources, all strongly indicating that this was not as trivial an issue” as the developers said it was. The judge agreed with the town that that there was the potential for litigation if purchasers of homes became victims of pollution. But he also said that NEE had the right to recover damages if the eminent domain “taking” turned out to be illegal.

Bergenn has sought to keep Judge DeMayo’s ruling from the jury. He says the judge permitted the town to take title based on information presented by town officials about potential contamination. But subsequent tests show there is no contamination on the site, he said.

After the openings were over, Bergenn launched an all out attack on Callahan’s opening statement, asserting he had no right to raise the word contamination—“that’s like calling someone a molester. It is derogatory.” He said Callahan should also not be able raise the land liability issue faced by other Connecticut municipalities. The heart of the town’s case, he said, “completely undercuts our case,” he declared.

Well, of course, that is what trials are all about. Bergenn asked the judge to admonish the jury that Callahan was not supposed to raise contamination or environmental issues—-why we are still not sure. Callahan seemed surprised at that and the judge seemed reluctant to do so. The environmental concerns lie at the heart of the town’s case and go to the reasons why officials decided to take the property in the first place. It was not at all clear how the judge could preclude the town from showing through witnesses what information town officials learned that led them to draw the conclusion they needed to seize the land.

Testimony began when Bergenn called his first witness, Jeffrey Gordon, the president of Codespoti & Associates, P.C., the land development firm that first drew up the plans for the site in 1986 when a prior developer did have permission to put up 298 condos and a 9-hole golf course. But the developer went bankrupt. Codespoti wasn’t paid all it was due. The town permits expired. The land was rezoned industrial.

Then one day 15 years later, in 2001, Don Stanziale, a principal in NEE, came knocking on Gordon’s door. Gordon had not forgotten Tabor. He went and dug up the old plans, he testified. And that is how the next chapter in the Tabor saga began.

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