New Haven Independent

The second trial began roughly a week after Superior Court Judge William T. Cremins, Jr. ruled that the town owed the prior owners Thomas Santa Barbara,Jr. and Frank Perrotti,Jr. $4.6 million and not the $1.167 the town had set aside. The town seized the parcel because it abuts a toxic town landfill and it feared contamination. Both sides have twenty days to appeal.

Kerry R. Callahan, the chief of the litigation department of Updike, Kelly and Spellacy, Branford’s outside attorney on this phase of the case, told Judge Cremins that there “is a clear indication there will be an appeal” and he asked to delay the second trial. If not, “we will be trying this twice,” he said. He also explained that his firm had only recently been asked to represent the town. But Judge Cremins, who will preside over the second trial as well, turned him down.

More than two dozen witnesses are expected to testify, beginning Tuesday. The trial is expected to last into the first week of September, possibly longer. According to the witness list, former Democratic First Selectmen Unk DaRos and Republican John Opie and the current First Selectwoman Cheryl Morris are all expected to testify. All are now in a three-way election race for the town’s top post.

A panel of 25 prospective jurors, many wearing tee shirts and jeans, walked into the courtroom shortly before 11 a.m., looking a bit bewildered. Each side’s attorneys read their list of potential witnesses to determine if any potential juror knew anyone on the list. Some names, like DaRos and Penny Bellamy, who served as DaRos’s town attorney during his six years in office, were on both lists. Town employees and outside engineering groups were also mentioned as were Representative Town Meeting members Kurt Schwanfelder and Dennis Flanagan. None of the jurors, who mainly reside in the area around Waterbury, knew anyone.

The judge explained to the panel that this was a case in which New England Estates had an option to purchase the land and wanted to develop it for residential use, but the town seized the property. Judge Cremins went on to say that NEE believes this was “an intentionally wrongful and discriminatory” act and that the company is owed lost profits as well as the money it spent in start-up engineering and other costs.

He told the panel they must come to a verdict on the preponderance of the evidence, a lesser legal standard than in a criminal case where the standard is beyond a reasonable doubt. He told them they alone would determine the credibility of witnesses, and that they must apply the law as he gives it to them. They would also determine the damages, if any.

He noted that “without citizens participating our system would fall apart,” and then he asked if anyone had a problem serving and virtually all the hands went up. As it turned out 20 of the 25 told the judge during individual questioning that they needed to be excused, mostly because of pre-scheduled vacations.

The questions posed to each of the remaining five prospective jurors indicated the difficulties each side thought it might have in presenting its case. James Bergenn, of Shipman & Goodwin, who represents NEE, asked each juror if they could understand if someone worked “without pay” at a project “in the hope he would make a profit.”

Bergenn stressed that the biggest issue for NEE “is lost profits,” not just what his clients spent to get the development plans underway. He also wanted to know if philosophically a juror would feel badly about taking large amounts of money from a town. “If that’s what proven, that’s what they should get,” said the first prospect, who was eventually accepted on the jury.

When it was his turn, Callahan asked the same juror if he would need evidence to show that the taking of the land was “discriminatory,” referring to the judge’s word. The juror said yes. He also asked if the jurors could see a difference between acting intentionally as opposed to making a mistake or being careless. The juror could.

The judge gave each side 5 peremptory challenges, meaning the lawyers could dismiss a prospect without saying why. Two prospective jurors were dismissed. One, a landscape artist, who prefers preservation to development, was dismissed by lawyers for Santa Barbara and Perrotti. Their history would show they initially wanted to put a dump on the property. Another prospect seemed too independent in his views of the law, saying at one point “there is the spirit of the law and the letter of the law,” an observation that did not go unnoticed by the half dozen attorneys in the room.

The jurors were asked about eminent domain and most knew or heard of the term from the 2005 “Kelo vs. the City of New London” case in which the taking of private homes for private redevelopment designed to further economic growth was upheld by the United States Supreme Court in a 5-4 decision.

On the legal side, the judge dealt with a series of issues. He wanted to know, for example, why attorneys for Santa Barbara and Perrotti were still in court when he had ruled for them last week. Their lawyer said he was seeking attorneys fees, plus interest. The judge asked them to brief the law on this topic and to respond to similar issues posed by Callahan in a motion for summary judgment delivered yesterday.

However, the judge turned down a similar summary judgment motion Callahan filed against New England Estates. A summary judgment is typically a request made by the defendant, in this case, the town, and asserts that the plaintiff has raised no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Typically these motions are made before trial. Judge Cremins said in open court that the motion came “too late in the process.”

Whatever alliance existed between the former owners and the NEE developers now seemed to have waned.

“This is now a battle between NEE and the town,” Bergenn said in open court, clearly drawing the line.
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