New Haven Independent

The purpose: mediation. The judge: Superior Court Judge Jonathan Silbert, who had a go-round on Tabor almost a year ago and lost. He knows the case and he knows all the players: the lawyers for the town, the developer and the former owners of the 77-acre tract.

Much has happened since Silbert last looked at Tabor, which shares a boundary with the town dump. There was a trial. There was a verdict. There was an election in Branford. The town’s new First Selectman Unk DaRos brought in a new town attorney, William H. Clendenden, Jr., whose firm replaced the Marcus Law Firm. Marcus wanted settlement and residential development.

The purpose of the mediation is to avoid an appeal, typically a costly and lengthy process. The town has filed notice it will appeal, and will do so directly to the Connecticut Supreme Court. Clendenen said the state’s highest court was the appropriate venue because the constitutional issues raised in the Tabor case were significant and far-reaching.

Then there is the land itself. While the town has owned it since January 2004, only now is a first selectman acting like the town owns it.(The land was formally taken in January, 2004 when John Opie was first selectman, but appeals began and he was essentially barred from taking action through most of his two-year term). Within weeks of taking office, DaRos announced his plans to move the public works building from its location next to the town’s main fire house on North Main Street to the Tabor site so that the Fire Department could expand.

Since then a new master plan was released. The Board of Finance and the RTM were brought into the loop. DaRos plans a visit to Tabor’s neighbors shortly. And three days before their date in court with Judge Silbert, DaRos invited Fire Chief John Ahern, the RTM and other town department heads to take an early morning walk on the Tabor with him and Clendenen. The sounds from a brush cutter could be heard as loggers began to clear 10 acres of 12 foot high brush.

In court, Silbert, who sits in New Haven, met in chambers with each set of lawyers. He invited DaRos to join Clendenen, and two other outside town attorneys, David Reif and Kerry Callahan, in the discussions. He listened to Tim Hollister, who represents New England Estates and to Steven Humphrey and Brian Smith who represent the former land owners, Thomas Santa Barbara, Jr. and Frank Perrotti, Jr. Jim Bergenn, the developer’s chief trial attorney, was not in court.

After three hours, Silbert brought all sides together. Clendenen said later there was a general agreement that there were “substantial legal issues in the case.”

That in itself is significant, since NEE’s attorneys have not conceded any current substantial legal issues. Clendenen would not elaborate, but said both sides had agreed to give the judge additional briefs on certain topics when the mediation session resumes March 6. Hollister was the first to leave the courtroom. He looked grim.

DaRos seemed more upbeat. “The judge was looking at this with an open mind, a fresh mind,” DaRos told the Eagle afterward. “It’s my impression that he wants to do what’s right.”

The lawyers were mum about Judge Silbert’s concerns. Each side had submitted mediation statements. We asked Clendenen for copies. He said he believed the town’s papers should be made public. He asked Judge Silbert if he could release them. The plaintiff’s attorneys argued against release (perhaps they are more comfortable in their own medium.) Judge Silbert decided the mediation was confidential and denied Clendenden’s request.

But post-trial legal reaction has surfaced elsewhere. In court papers, the town earlier argued that since the developer did not own the land, having only had an option to build, the developer had no standing to sue for a wrongful taking under the U.S. Constitution.

Bergenn had argued that but for the town’s taking of the land from the owners, the developers would have developed — even though the developers had no town planning and zoning permit permitting them to develop. Not to worry, the trial judge, William T. Cremins, Jr. told the jury. He instructed the panel that the developers would eventually prevail in court and would win all the approvals they needed to develop the land.

From DaRos’s point of view only the land’s former owners have legitimate legal claims. As for NEE, he told the RTM a few weeks back: “I expect and want their case thrown out. They never had any business there in the first place.”

DaRos said in 2003 and says now that he is deeply concerned about the liability the town could face if housing were built next to a potentially toxic town dump. He cited the experience of other towns and the endless prospect of liability, information that Judge Cremins kept from the jury. DaRos says Tabor is zoned for industrial use.

He made the same point at the RTM a week earlier. “The whole issue is control of the property. We can’t control what happens if we don’t own it and control it.”

The Silbert settlement proposal in March, 2007 was largely the work of Bergenn and The Marcus Law firm. It centered on returning the land the town now owns to NEE and building 275 condos on 45 acres of the site. Under this proposal, the developer would give the town 30 acres for new ball fields. But the Representative Town Meeting, the town’s legislative body, unanimously rejected the proposed agreement. And the deadline the Marcus Law Firm presented for other approvals from town commissions was not only unrealistic, but likely against their own statutes.

Over the last several weeks, DaRos has made it clear that giving the land back to the developers as part of any scheme toward settlement is not in the cards because the town intends to use the property.

Standing at the town’s landfill, which overlooks the vast Tabor property, Clendenen raised the issue of pretext. The word pretext came up a lot at the Waterbury trial as Hollister argued that because the town wanted to avoid an affordable housing development on the site it invented a “pretext” to seize the land. The pretext was contamination.

Clendenden pondered “pretext.”

“I just looked at the run-off of the contaminant from the town landfill onto the Tabor property. I listened as town engineer Janice Plaziak said the run-off then goes into a stream that stretches across the property.” He said the landfill “drains into this ecosystem, into the wetlands.”

And then there were the “piles” that Plaziak pointed to on the Tabor property map. “There are significant piles in the Tabor area,” Plaziak told Clendenen.

“Is this material brought into the site or is this native material in these piles?” he asked. She said there was evidence of concrete slabs, construction debris, brick and soil. DaRos said the place “is so thick no body has gotten in to check it out.”

The town wants to know what lies beneath. Unk said he suspected oil drums. But it could be more. “We want to know what we are up against.”

Clendenen said he wanted to see the property for himself so he could describe it in court. He said he has asked for a new trial, where he expects experts will be able to testify. At the last trial, David Doyle of the Marcus Law Firm forgot to inform the town’s new trial lawyers of the date by which the names of experts had to be disclosed. The date had been decided by conference call. As a result, the town could call no expert environmental or financial experts to testify. (The RTM relied on Doyle’s promise of expert testimony when it voted to go to trial.)

The one thing DaRos and Clendenen do not want on the site is housing. But both approved the idea of moving the town’s public works building to the Tabor site, saying the building would be directed away from the run-off and protected by a buffer. As for the building, if necessary it will be lined at its base to prevent seepage.

This is the same land whose highest and best use, according to Judge Cremins, is housing. To that end the judge set the price of the land at $4.6 million. Reminded that the judge walked the property, Clendenen said “Well I guess he didn’t see what I just saw,” he said of the run-off. “Then again, I am just a lawyer, not a judge.”

DaRos and Plaziak voiced concern about abandoned equipment, and other debris on the Tabor site, including asbestos. They will know more once testing is complete. Looming from the brush one could see an abandoned yellow payloader.

“For years this was an equipment graveyard,” Frank Twohill, the Republican RTM minority leader, said at the site. “And it’s all still there.”

The Waterbury jury found the town had wrongfully taken the Tabor tract. But Clendenen said the town had every right to take the tract for ball fields or park use.

“Every town on the shoreline is being pushed harder and harder because there is a lack of playing fields. It is actually a real issue, here,” Clendenen said. “These kids are in organized sports as opposed to playing by themselves. Each town has a deficit in terms of playing fields. Citizens are asking for them,” he added.

Then there is public safety. The town’s decision to move the public works facility to Tabor to give the Fire Department the space it needs to expand is a clear public safety issue, Clendenen observed whenever he could. He presumably repeated his position to Judge Silbert. This public need, he said, “trumps everything else.”

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