Town Wins Tabor Bond Ruling

by Marcia Chambers | May 21, 2009 11:28 AM | | Comments (10)

A Superior Court judge has given the town of Branford a minor victory in the long- running Tabor eminent domain land case.

The decision came last month when Judge William T. Cremins, Jr., who presided over the Tabor trials in 2007, turned down a motion to require the town to post a $20 million bond to guarantee the town would pay damages and costs in the case.

The bond request came from the owners, Thomas Santa Barbara, Jr. and Frank Perrotti, Jr., and New England Estates, (NEE) the would-be developer who have been battling the town over the 77 acres of land known as the “Tabor site” since 2002. NEE wanted to put housing on the land and at least four plans were put forth. The town, concerned about the proximity of the town dump to the Tabor land and fearing future contamination in the future, seized the property by eminent domain instead. Santa Barbara and Perrotti, who once ran the town dump, and NEE, challenged the town’s reasons for taking the land at two trials before Judge Cremins. They maintained the town wanted to stop affordable house, one of the proposals, at the site.

In the end, a jury found the town had wrongly seized the land and ordered the town to pay a judgment of $12.4 million to cover NEE’s lost profits. Earlier Cremins ruled the town had to pay the owners $4.6 million because he held the best use of the land was development, a conclusion the town also challenges.

Add $340,000 in damages for the owners, $1.488 million in legal fees for NEE attorneys, $275,979 for the owner’s attorneys. and $1.344 million in interest accruing at 10 percent since 1977 — and the town faces $20 million in damages.

To secure that $20 million, NEE and the owners jointly asked the Connecticut Supreme Court to require the town to post a $20 million surety bond.

But whether the $20 million will be a reality depends upon the outcome of an appeal of the case now before the Connecticut Supreme Court. Oral arguments are scheduled before the Supreme Court this coming Tuesday.

NEE attorney Tim Hollister and Linda Morkan, who represents the owners, sought the surety bond because they claimed the town has taken no action to set aside these funds in the budget should they be affirmed on appeal. The attorneys asserted in a joint brief that the payment “should not be subject to the municipality’s unpredictable political process.”

Cremins turned them down. The judge chided Hollister of Shipman & Goodwin and Morkan of Robinson & Cole on their legal research. He suggested that next time they take a closer look at the statutes and the Connecticut Practice Book.

“The court finds that there is no statutory or practice book rule that authorizes the trial court to require the posting of a bond upon termination of stay to recover a judgment,” he wrote.

Although Hollister and Morkan filed their briefs with the Connecticut Supreme Court, the evidence was gathered in a half-day hearing before Judge Cremins in Superior Court in Waterbury.

Under questioning by town attorney William H. Clendenen, Jr., Jim Finch, the town’s finance director, told the court the town would be able to pay the judgment if the cases were not reversed.

At public meetings, Finch has said that if necessary the town would authorize and seek bonds to finance a judgment. In court he said the town had received a stellar triple A bond rating and that it has a strong fund balance.

Wesley Horton, one of the state’s leading constitutional attorneys, wrote the brief for the town. He told the court there was no basis in law for the motion. He said the owners and NEE “do not claim that the town is in dire straits. Rather they complain that the Town has not budgeted for the judgment and that the process for doing so is ‘complex and time consuming.’ The Appellees’ impatience, however, does not amount to irreparable harm.”

Most important, Horton wrote, “the town is likely to succeed on appeal and the significant costs of the bond almost certainly are not recoverable and will have been for naught.”

Horton noted that an “unexercised bare option to purchase land,” the legal status of NEE at the time of the taking, “is not a property right. This issue pertains only to NEE but over 97 percent of the jury verdict was in favor of only NEE.”

The town has asked the court to reverse the judgment and send the case back to the Superior Court where judgment should either be entered for the town or a new trial ordered.
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Comments

Posted by: Pat Santoro | May 21, 2009 6:34 PM

Marcia,
This is a point of law, not a win. I thought all parties involved were instructed not to talk about the case even though there is no gag order.
Millions of dollars were paid by the town to try and defend this case. If we win this appeal doesn't mean the judgment will be overturned, it means we, the taxpayer will pay for a new trial.
Let's print the truth, shall we, it would be so refreshing !!!! Another decade of "Unk", isn't that special.

Posted by: Mosh Gai | May 22, 2009 2:00 PM

Dear Pat Santoro,

Your comment demonstrates that you have a fundamental misunderstanding. You state that town's victory in court is not a "win", it is just a "point of law". Aren't all court matters a point of law? And if it is such a straight forward issue of a "point of law", why did the plaintiff appeal to the court for a rulling?

Every success in court is a victory.

You also have a fundamental misunderstanding of Branford Politics.

What Branford needs now more than ever is a leader with integrity. The Republican under the leadership of Opie dragged this town in 2007 through the mud and into the gutters with their jib-jab ads on UTube. The personal attacks on Unk were below the level of integrity deserved by the citizens of this town. Unk did not join the fray and kept his integrity and the integrity of this town. We most certainly need Unk to continue.

One of the most important issues that Unk is working on (among many others) is a victory in the Tabor case (and I am even willing to pay my share for this victory). The judge's ruling in this case was unjust, most likely unlawful, and it was delivered due to bad legal service this town received from the office of attorney Marcus who mishandled the case.

Thus Spake Moshe Gai

Posted by: Pat Santoro | May 23, 2009 8:32 AM

Mr Gai,
You are forgetting we have a jury system which can make their decisions based on opinion. This lawsuit began under the previous DaRos administration, John Opie and Cheryl Morris are not named as a defendants in this case.I do know the politics in Branford, they are dirty and skewed in favor of the politicians, not the taxpayer.Now, I understand we are going to build a public works center and ball fields on the Tabor property which was too contaminated for NEE Estates but not too contaminated for sports teams. A deal has been struck somewhere.

Posted by: JohnH | May 23, 2009 9:31 PM

Gentlemen,
Judge Cremins is the same judge who the Independent previously railed against for his decisions. Now, when he makes a decision against what was a shot in the dark attempt in the first place by NEE,he is championed. As high end an Attorney as Wesley Horton has proved to be, Attorney Hollister is similarly regarded. Everyone should be well aware that a trip to court can be like a trip to Foxwoods. Everyone expects to win, but they usually lose something.

Posted by: MARY | May 24, 2009 12:35 PM

Re NEE Estates - it seems to me that there is a big difference between allowing people to live on contaminated land 24/7 (drinking, cooking with and bathing in water drawn from it) and having sports teams spend an hour or so on it at a time - as long as they are bringing their own water.

Posted by: Pat Santoro | May 25, 2009 10:23 AM

First question, is the Tabor property really contaminated or potentially contaminated? Let me sight an example of sports field contamination, The Meadowlands, Giant Stadium, in NJ. That land is deemed contaminated and there is a high incidence of cancer afflicting the ball players who have played on this field. It was not a matter of bringing your own drinking water, it was physical contact with the field itself and it's surroundings.

Posted by: susan barnes | May 25, 2009 1:51 PM

Mary, the town TOOK 77 acres of private property. Check with the DEP & the EPA. Tune in BCTV and listen to Ms. Plaziak at the BOF last week while discussing the relocation of Public Works on the property. Testing showed "NO CONTAMINATION". Did the town test prior to seizing 77 acres of private property? THEN decide if it was necessary to take 77 acres of PRIVATE property - at an insulting price considering it had sold twice for twice as much as was given to the OWNERS. AND MARY! Your statement regarding cooking, bathing and drinking: were they planning to dig wells down there!?!

Posted by: JohnH | May 25, 2009 3:57 PM

Mary wrote-"Re NEE Estates - it seems to me that there is a big difference between allowing people to live on contaminated land 24/7 (drinking, cooking with and bathing in water drawn from it) and having sports teams spend an hour or so on it at a time - as long as they are bringing their own water."

My understanding is that Tabor has NEVER been proven to be contaminated. The Town has had ample opportunity to test it and has never opted to do so.
Now Unk is willing to let the Atlantic Wire property be used for housing as he did the MIF site. Both sites HAVE been proven to be contaminated. I have always thought the problem was not contamination but affordable housing.

Posted by: susan barnes | May 25, 2009 11:22 PM

Dear John: Please be sure to watch the special BOF meeting held last week. The town engineer states there is NO CONTAMINATON. Yes, I, too have wondered about the very different approach to MIF and Atlantic Wire. T'would be laughable if it all were not so serious and did not have such far reaching ramifications. And John, it is not just affordable housing, it has been "PARASITIC AFFORDABLE HOUSING", has it not?

Posted by: branford_taxpayer | May 26, 2009 11:49 AM

If any are interested, this website while it is part of Branford Government, provides many links to the environmental aspects of this case including links to the environmental report by Fuss and O'Neill who work on landfill projects all over New England. It is a long read but you might find it interesting.
http://branfordconservation.org/current.html#tabor

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