Enough already, a judge told a property development company that has filed multiple rounds of litigation to block potential competitors from building apartments at the downtown edge of Wooster Square.
In a memorandum issued last week, Superior Court Judge Thomas Corradino told PMC Property Group, the Philadelphia-based firm that owns the renovated Strouse-Adler building at 78 Olive St., to stop using the courts to keep other upscale housing out of Wooster Square, including one of two planned apartment complexes across Chapel Street.
PMC has claimed that it was suing based on environmental concerns. In his ruling, Judge Corradino credited the serious research that had gone into PMC’s claims that its potential competitor’s new drainage system might pollute the Long Island Sound. But he advised the company to quit playing “private attorney general,” as its lawyers called themselves at a November hearing. Corradino recommended PMC leave the enforcement of environmental laws to the actual authorities, who don’t have a financial stake in the outcomes.
His ruling, issued on Jan. 16, dismissed PMC’s latest case against the city and a rival developer, Spinnaker Residential, LLC, which plans to convert the former Comcast service center, at 630 Chapel St., into 200 luxury apartments and ground-floor storefronts.
PMC, through an affiliated company, can still appeal the decision. But, in a footnote to his 18-page decision, Corradino urged any higher court judge to expedite the hearing, writing that a speedy resolution to three years of legal wrangling would be a “great service” to the city.
Reminder Of Trials Past
Judge Corradino’s no stranger to protracted disputes over economic development and land use, including a well-known eminent domain case that took years to resolve.
In 2000, in Kelo v. New London, Corradino heard seven days of testimony about that city’s plans to clear 15 residences for Pfizer to build a major research facility. Corradino limited the city to taking only four, where the offices would go, allowing Susette Kelo to keep her little pink house by the waterfront.
Corradino, however, didn’t get the last say. His initial ruling travelled all the way to the U.S. Supreme Court, where in 2005, five of the more liberal justices said the city could grab all the land it needed.
In 2009, after all the homes had been bulldozed, Pfizer backed out. The development that was “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city,” according to the Connecticut Supreme Court, is today just an empty field, awaiting more promises.
Corradino brought that Kelo case up at hearings on the New Haven PMC case. While it’s not mentioned anywhere in his latest memorandum, It lingers between the lines. The judge was clearly reluctant to hold up another property owner with years of litigation that could scuttle the whole development.
3 Years, & Counting
PMC, Corradino pointed out, had already been trying to stop activity across Chapel Street for more than three years — as he knew from dismissing at least five separate lawsuits PMC filed to stop other development in New Haven.
In its first lawsuit, filed with Judge Corradino in Dec. 2014, PMC argued that the City Plan Commission approval of Spinnaker’s site plan violated the city’s own zoning. In May 2016, the judge disagreed, except for one technicality. The new drainage system resulted in increased stormwater runoff, which isn’t allowed by the city’s rules. Since it was such a minor detail in the larger plan, Corradino told Spinnaker to fix just that one aspect and get it approved.
PMC misunderstood the process, and its lawyers waited to contest the revisions at the next City Plan Commission meeting on Aug. 24, 2016. But planners had already approved the tweaks a week prior, as the zoning ordinance allows staff to sign off for “minor changes.”
That led to a second lawsuit, which a judge dismissed in March 2017 for lacking jurisdiction.
PMC went back and appealed the first lawsuit to a higher court. That appeal was dismissed in April 2017 for being filed too late. Even though Connecticut is one of the few states that allow late filings “for good cause,” PMC’s attorneys didn’t try to win an extension.
Finally, in July 2017, the third PMC lawsuit landed before Corradino. In its complaint, using the Connecticut Environmental Protection Act’s framework, PMC argued that the stormwater runoff from Spinnaker’s development could pollute the Long Island Sound.
City lawyers said the action was “nothing more than a transparent challenge” to the planning staff’s decision, which the courts had already tossed out twice.
How To Win By “Losing”
Judge Corradino wrote that the extensive history hinted at an ulterior motive: “the plaintiff’s interest in delaying or ending this development plan.”
“Plaintiff is in a win-win situation, where if it loses on this motion and its case is dismissed, it can appeal to the Appellate Court, and if it loses there, try to take the case to the Supreme Court, resulting in a situation where final resolution of the matter could take many more months.”
That’s just the beginning, the judge added. If any of those higher courts sided with PMC, the case would be sent back to him to be heard on the merits. Any adverse rulings could be appealed again, back up the chain.
“The net result of all this is that even if the plaintiff were to eventually lose on the merits, after all court remedies were pursued, it could ultimately prevail because the developer would be forced to back out of the project,” Corradino wrote.
Still, Corradino hesitated over PMC’s environmental claims. If the project would result in “unreasonable pollution,” as alleged, the court had a responsibility to stop it, right? “Does all of this mean, in the final analysis, that our environment cannot be protected?” he asked.
Corradino, however, questioned whether PMC is the right plaintiff to keep the state’s waterways clean, even if the concerns it brought up were legitimate. On one hand, the company might be the only party with the resources and knowledge of the statutes. But on the other, the company has a financial interest in keeping out the competition.
Because of that conflict of interest, environmental enforcement could be better “accommodated by means of other approaches than continuing this too lengthy litigation,” Corradino said. Leave it to government officials, he wrote. If an agency wants to initiate an action, PMC could hand them the 22-page study it had already commissioned, Corradino wrote, in one final barb.
“Committed As Ever”
Spinnaker said it was “pleased” with the ruling, and still plans to go ahead with construction at 630 Chapel St. “We believe that the decision is very thoughtful, and makes clear that Judge Corradino understands the underlying dynamics of this case,” the company said in a statement. “We remain committed as ever to seeing our proposed mixed-use community come to fruition for the good of the neighborhood, the city and its residents.”
PMC’s executives and their lawyers did not respond to requests for comment.
City officials, too, applauded the decision. Wooster Square Alder Aaron Greenberg said he was “thrilled” that the lawsuit had been dismissed. “The mix of housing and street level retail will activate the area and help bridge the gap between downtown and Wooster Square,” he wrote in an email.
Matthew Nemerson, the city’s economic development administrator, said he has “no doubt that we’re going to keep winning the lawsuits,” but he’s trying to head off any more.
“Developers are supposed to work with each other to create the larger economy that they can all profit from, not blow up each other’s projects,” he explained. “All this does is play into the hands of White Plains and Yonkers and other cities attracting young people out of New York. It doesn’t help us or them in the long run.”
Nemerson entreated PMC to sit down with city officials.
“We want them to talk about their issues as developers. If they’re not happy here, we’d like to find other developers who could buy their parcels. If they have specific issues about the city, let’s work with them,” he said. “Every time we win in one of these suits, we want to move forward with them as part of the New Haven community.”