New Haven Independent

James Bergenn, NEE’s lead attorney, had certainly mentioned the $20 million figure back in March when he went before the RTM to try to convince the town to settle the case. But as it turns out, Kappel’s original number, as of the date the town took the 77-acre parcel on Jan. 5, 2004, was $6.5 million. The $20.1 million figure only came to the attention of Kerry Callahan, the town’s new trial attorney, when he received a fax at his office on July 30th, a week before this trial began.

Judge Cremins demanded to know why Kappel’s numbers had changed from January 2004 to July, 2007. As he sat in the witness box Kappel told the judge that he changed them after meeting with Don Stanziale, an NEE partner who sits next to Bergenn at the plaintiff’s table. Somehow Kappel had based the earlier figure on another NEE project, not Tabor, which was five times larger.

There are three parties in this case. The owners of the land, Thomas Santa Barbara, Jr. and Frank Perrotti, Jr., NEE, which had an option to buy the land and the town. This trial centers on NEE’s lost profits, start-up costs and other fees.

The Town of Branford took the land because of concerns that a toxic leachate plume along with impacted groundwater and decomposition gases from the adjacent landfill could affect the Tabor parcel, especially if a large development were built.

At the time the town took the land, NEE had no approvals to build. The town’s Planning & Zoning Commission had rejected two separate condominium plans. From the town’s point of view, it owes NEE nothing because the developer’s option to purchase the land, then zoned industrial, vanished when the land was taken. Moreover, the town says the Tabor site has been used as a dumping ground for solid waste, creating other environmental issues.

That’s not how Bergenn sees it. “We are suing on the fact that we were going to do what we were doing until they took the land,” he said. “We are entitled to be where we would be if they didn’t take it.”

Callahan told the judge that even though he got such late word regarding this new financial analysis, he managed to depose Kappel. He was not arguing to reject the $20.1 million because he had so little time as the judge first thought.

Instead he focused on the date. And Callahan is very much aware of dates. He reminded the judge, as he has several times in the past, that the town has been barred from using ANY environmental expert at this trial because they were not disclosed to the plaintiffs by the date Cremins set: May 30th. Callahan then applied the same standard to expert Kappel’s extremely tardy revelations.

And why wasn’t Callahan aware of the May 30th date? In recent court papers Callahan says he was “never advised or had knowledge of the deadline to disclose expert witnesses prior to May 30, 2007 and did not represent the Town when that order was entered.”

David Doyle, of the Marcus Law Firm, represented the town in the Tabor case on Feb 9, 2007 when he, the plaintiff’s lawyers, the owner’s lawyers and Judge Cremins agreed in a telephone conversation that May 30 was the date by which the parties had to disclose trial experts. Moreover, Doyle confirmed in a June, 2007 affidavit that he told NEE attorney Tim Hollister in Oct, 2006 that he would not assert as a defense in the eminent domain case that the 77 acres was contaminated as of the taking date. This constitutes a judicial admission, which Bergenn wrote in court papers on July 24 is “binding and precludes defense testimony about the environmental condition of the property.”

Not knowing the date, the town’s environmental attorney, David Monz, informed the court of the town’s two new environmental experts on July 19. Later Callahan asked the judge for a little give on the May 30th deadline, especially since the firm had not known the date and was so new to the case. Bergenn protested vehemently. The judge agreed and as a result, in a case that turns on expert environmental witnesses, the town will have none. ( The RTM rejected a settlement in April believing there would be experts at trial.)

Now it was Bergenn’s turn to ask Callahan for a little give. He tried. Callahan would not budge. “We cannot use any experts in this case because we didn’t disclose them by May 30th. This disclosure by Mr. Bergenn’s expert comes too late. He should not be allowed to do this,” he told the judge. .

Judge Cremins agreed with Callahan. “I am not going to allow the July 30, 2007 adjustment”—meaning the $20.1 million figure. All the lawyers for developer and the owners looked stunned.

As he often does on the few occasions when the judge has ruled against him, Bergenn set out to lessen the judge’s ruling. No is never no. “This is not the truth. I have to present something that is not the truth,” he declared. Then, putting his hand on Stanizale’s shoulder, he said with feeling of the developer’s lost opportunity claim: “The law has to make him whole.”

The discussion now returned to an issue raised the day before: whether lost profits and interest are measured as of the time the property was taken in January 04, or if it runs to the date of the trial, which in this case is three and one-half years later. The judge had asked the lawyers for overnight legal memoranda on which date governs.

Barbara Frederick, a partner at Updike, Kelly & Spellacy, who specializes in appellate law, represented the town on this issue. She told the judge that IF there were estimated lost future profits they would only date to the day of the taking, Jan 5, 2004. She argued that if the central issue is the date on which damages begin, then only the date of the taking is relevant, and Kappel’s testimony on everything else is not relevant. And, she added, any interest is a matter for the judge, not the jury, to decide.

The courtroom was silent. What the judge said next would determine just how far the “future profit losses” could go. Bergenn sat down, placing his hand on his face. Other lawyers stood at different spots in the courtroom, waiting expectantly.

The issue was the dates—the date of the taking vs. the date of this trial. The judge began and all of a sudden the judge wasn’t talking about dates. He was talking about expert witnesses. He had decided dates were out and experts were in. He concluded Kappel should testify. This means he is entitled to a give the jury his expert opinion. Callahan, he added, would be given “great latitude in cross-examination.”

The $20 million number was still in play. True, the judge said he would not tell the jury whether he agreed with either side’s version, but he did give the witness the right to continue.

Callahan was on his feet. “Is the point to gut yesterday’s ruling at $6.5 million and get the other number in?” he declared to the judge.

The judge replied: “I did make a ruling yesterday. I don’t want to eviscerate that ruling” said the judge, who has had a history in this case of amending his rulings. He let Kappel continue. Afterwards the NEE team huddled. They emerged looking calm.

We should note that when the jury heard the $20 million figure Friday morning. Kappel showed them his calculations and charts, all highlighted on screens for them to see easily. (The same information was transmitted to the attorneys, the judge and the witness via computer). Kappel relied on comparable sales of other condos in Branford over a similar period of time. The jurors were attentive and took notes. Kappel testified his figures were “conservative.”

How could it happen that a developer could seek $20 million when the town had denied his applications and he had no approvals? Well, Bergenn and Tim Hollister, an expert in affordable housing law, maintain that eventually, through appeals in the state court system, the developer would have prevailed. Judge Cremins assumed NEE would have received its permits when he valued the owner’s land at $4.6 million in July. He is expected to tell this jury the same thing. The judge determined there was no contamination on the Tabor parcel in the valuation case. The town could not call expert environmental witnesses in that case either.
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Earlier in the week Bergenn continued his strategy of using town witnesses to try to make his case. Dennis Flanagan, an RTM member for 21 years, and a member of the RTM Administrative Services Committee that investigated Tabor, had asked back in July 2003 whether the town had conducted any studies on the land. Flanagan told Bergenn Tuesday that the committee had received an environmental report from Fuss & O’Neill, the town’s outside engineers.

The report turned out to be a 5-page letter signed by David Hurley, an environmental professional and vice-president of the company.

Click here to read it. Under Bergenn’s questioning Hurley conceded he signed the letter after the then Town Counsel Penny Bellamy commented on his drafts.

Hurley told Bergenn that the town had done no testing on the property when it was seized, that he did not discuss the massive state reports on the landfill with the RTM, even though he knew about them ( he explained that he had not been asked) and that while the town asked his firm for a proposal to test the land, it was not done because of costs. The costs were in the $30,000 range. Nor did Hurley volunteer that he inspected the 77 acres at Santa Barbara’s request in the 1990’s. Fuss and O’Neill worked for Santa Barbara when he ran the landfill and Hurley knew him well.

When Callahan got his turn, Hurley explained that the town was told about movements of a leachate plume that were coming from the landfill and about potential methane gas in the rock system. He also said the leachate plume could vary from season to season and from year to year, explaining its unpredictability.

The RSR’s, or state regulations governing landfills, showed the landfill below the standard, a point Bergenn has stressed throughout the trial. Callahan asked Hurley: “is there any guarantee in the future that readings won’t go above the RSR’s?” “No Sir,” Hurley replied.

The Town’s case is expected to begin Tuesday.
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