New Haven Independent

In July, Superior Court Judge William T. Cremins, Jr., who decided the value of the land at an earlier bench trial ordered the town to pay the owners, Thomas Santa Barbara, Jr. and Frank Perrotti, Jr., $4.6 million. In addition to awarding NEE $12. 4 million in lost profits and investment costs, the jury also awarded Santa Barbara and Perrotti $340,000 for fees they
would have earned had the developer’s option to buy the land for $4.7 million taken place.

Adding it all together, along with attorney’s fees could push the number up to a whopping $19 million or more unless the verdicts are overturned on appeal.

Less than 24 hours after the verdict, Former First Selectmen Democrat Unk DaRos and Republican John Opie, who are now in a race for their old seats, took the unusual step of issuing a joint press release, reasserting their belief in their collective decision to take the land. With the election less than two months away, they explained that they took the land, located next to the town’s landfill, to protect the health and safety of future residents and to protect the town from liability. The town’s outside engineer’s had warned them of contamination emanating from the landfill. .

They blamed the current First Selectwoman for the legal disaster that ensued, saying she dismissed the attorneys who had won an important victory in the case in 2003 and put the new town attorney in charge. “That law firm,” the release says, failed to meet “filing deadlines” and that tied the hands of the recently appointed new trial attorneys who were prevented from ever calling any expert witnesses to testify at trial. Curiously, DaRos and Opie managed to place the blame without naming any names.

“Without the expert witnesses, the Town could not enter its evidence to prove that this was the right thing to do for its residents,” DaRos and Opie said. They were joined by their running mates, Fran Walsh and Kurt Schwanfelder respectively. All four came together, they said, “because the Tabor dispute is more important than the upcoming Selectman’s race.”

DaRos and Opie said the “taking of the property to protect the health and safety of future residents was the right thing to do in 2003 and is still the right thing to do in 2007.”

First Selectwoman Cheryl Morris, who is running as an independent against DaRos and Opie and who voted for the taking as an RTM member, attended the five week trial regularly. On occasion she was joined by Second Selectman Richard Sullivan. Sandra Reiners, chairwoman of the RTM Ways and Means Committee, who oversaw hearings on Tabor last Spring, spent two days in court last week as well. Morris has said the town will appeal.

On Tuesday James Bergenn, the chief trial attorney for NEE and Kerry Callahan, the town’s chief attorney delivered their summations to the jury.

“You just don’t take property—-private property,” Bergenn told the panel, especially when town officials did not state “a purpose for the property” before taking it by eminent domain. The jury apparently agreed, giving him what he asked for.

After outlining the history of the town’s actions as he saw it in his closing argument, Bergenn told the jury of three men and three women that town officials violated the U.S. Constitution when they seized the property in order to ‘investigate, remediate and possibly put ball fields on the land.’” The town acted before it tested the land.

From the outset of the trial, NEE has argued that the town’s reasons were a pretext for avoiding an affordable housing condo development. In finding for the developer, the jury had to accept the argument that the town’s decision for the taking was based either on pretext, unreasonable conduct or an abuse of power.

But Kerry Callahan, the chief litigator for Updike, Kelly & Spellacy and the town’s trial attorney, told the jury that the “town made a decision based on what they believed to be the truth.” He cautioned that the taking was not made illegally and that the bad faith standard had not been met. He said the “landfill is still alive with sewage, contaminants” and other debris. He also said the town did not oppose affordable housing.

The jury was bound by the law that Cremins delivered to them in his charge. He told the panel that there was a reasonable probability that the developer would have obtained the necessary approvals and permits for the affordable condo plan. This charge was essential to the developer’s case. What the judge meant was that eventually the developer would have prevailed in the state court system to get his approvals.

The judge had previously made the same assumption in coming to the $4.6 million figure for the value of the land. At the time the town took the property, the developer had no land permits to build. A prior market value condo plan had been rejected by the town’s Planning and Zoning Commission and the Commission later rejected the affordable housing plan.

In the valuation case the judge found that the highest and best use of the land was for housing and there was “no credible evidence” of environmental contamination. But he made those findings absent any testimony from town environmental experts who could not testify because the town’s new trial attorneys, who came into the case on May 8th, missed the deadline.The judge denied the town’ request for an extension to enable the witnesses to testify.

In the first trial, which set the value of the land, Judge Cremins said that housing was the best use of the land—he did not say what type of housing. At this trial, however, he referred to 354 condos, which is the number for the affordable housing development. The judge had not mentioned affordable housing in the first trial, but apparently concluded it was relevant in the second.

Opie followed DaRos into office in 2003. By then the Board of Selectmen, the Board of Finance and the RTM had all given unanimous approval to take the land. But the formal taking did not occur until Jan 5, 2004. The Board of Selectmen waited for Superior Court Judge Anthony DeMayo’s to issue a written decision. When DeMayo ruled, he denied NEE a temporary injunction to stop the taking. He found “no evidence” of the NEE conspiracy theory.

In their joint press release, Opie and DaRos said the town’s action “was upheld and justified by the court in 2003 when the Town was able to bring in expert witnesses to present evidence about the environmental problems” at the Tabor site. DeMayo said in his ruling that the contamination issue “was not as trivial an issue as the plaintiff urges the court to believe.”

DeMayo also agreed with the town 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 repeated over and over that the landfill met state regulatory standards for its permit and stressed that the Tabor parcel was located in a neighborhood of residences.

When Morris won the First Selectmen’s race in November 2005, she quickly appointed the Marcus Law Firm, which scooped up virtually all town cases, including Tabor. DaRos and Opie said yesterday that the “present administration dismissed the attorneys who had won for the Town ( in the DeMayo case) and put its own counsel in charge….”

Judge Cremins refused to allow the DeMayo decision before the jury. A number of Cremins’s rulings over the course of the trial kept the town from presenting its case.

Town attorneys had pressed Judge Cremins to delay the trial pending an appeal to the Appellate Court in the land valuation case. They were concerned about contested rulings from the first case being applied to this one. But Cremins refused to delay the trial, which began in early August. The RTM rejected a settlement in the Spring.

Bergenn was extraordinarily effective in getting the complicated story of New England Estates and the Town of Branford before the jury. Through most of the trial the jury stared not at the courtroom but at a screen projecting computer highlighted images of statements Bergenn wanted them to see and understand. NEE provided the electronic courtroom.

Usually he added two easels with charts propped up on them. They depicted a time-line of events. The effect was to provide a wall in front of the jurors’ vision as well as a constant reminder of the plaintiff’s case. Bergenn stood within the wall. Kerry Callahan, the town’s attorney, seated at a table across the room, often found himself unable to see the jury. Sometimes he walked over to the charts and took them down.

The charts were up again during Bergenn’s summation. He cited the developer’s financial expert Conrad Kappel. “The town doesn’t refute Kappel,” Bergenn told them. (Of course, given the missed deadline, the town wasn’t allowed to present expert witnesses. Judge Cremins also ruled the town could not offer financial experts because the town missed that deadline, too. )

Kappel had decided NEE stood to lose $20 million in future profits and said so repeatedly in his testimony, but that number was discounted to $11.2 million and also presented to the jury because future profits are discounted to today’s value and are worth less.

“The plaintiff’s experts have given you the facts. Let’s go to work,” Bergenn told the jury. Given what they had been allowed to learn over the past five weeks, they did not disappoint.

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