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The Suits Are New, The Cast Familiar

by marcia chambers | Nov 20, 2012 7:56 am

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Marcia Chambers Photo An ongoing feud in Branford, which has consumed public debate and election campaigns, has entered the courts.

The feud, between property owner Wayne Cooke and First Selectman Anthony “Unk” DaRos, has sparked two new lawsuits, one in state Superior Court in New Haven and the other in U.S. District Court in New Haven.  Cooke is suing DaRos and his tax assessor, Barbara Neal in federal court on civil rights issues in connection with his property, once known as Hilltop Orchards.

Representing Cooke is the Marcus Law Firm, another player in the ongoing feud. The town sued Marcus four years ago for malpractice. Now the firm and its litigator, David Doyle have turned around and filed the two suits against the town officials on Cooke’s behalf.  Doyle, also sued for malpractice, is Cooke’s lead attorney. 

The Marcus Law Firm also represented Cooke in a criminal case a year ago when Cooke was arrested in connection with smearing bird gel on “DaRos Dishonest” signs he had purchased and erected in the days before the Nov. 8, 2011 first selectman election, which DaRos won. (Click here to read about the bird gel case.) Cooke has been engaged in a longstanding feud with DaRos over the tax status of his farm.

Cooke’s and Doyle’s state case, filed last Thursday, centers on an accusation that DaRos slandered Cooke in 2006 and then went public with his accusation in July 2010.

Branford’s town counsel, William H. Clendenen, Jr.,  took note of the fact that Cooke’s lawyers were the defendants in the town’s malpractice lawsuit. Click here to read a story about that lawsuit, which centered around the so-called “Tabor” case.

“The town finds it very disturbing that the attorneys for the town of Branford and First Selectman DaRos in the Tabor litigation who were responsible for the multi-million judgment against the town, which was then reversed on appeal, are now suing the same clients in this current litigation,” Clendenen said in an interview.  “I refuse to speculate as to the motivation that would cause attorneys, members of the Connecticut bar, to engage in such questionable behavior.” He did not elaborate.

He did add, however, that it was his view that the two Cooke lawsuits “are without any merit. The town will defend its officials in this matter vigorously.”

The trail to the two new suits begins with the Tabor case and a jury verdict in 2007. 

The Malpractice Case

The law firm of Ed Marcus, former chair of the Democratic State Committee and at 85 still active in the Connecticut political world, represented the town from 2005 to 2007 when Cheryl Morris served as first selectwoman. 

The town’s malpractice case stems from that period. It is still pending in New Haven Superior Court and is expected to go to trial in June 2013.  The case has moved slowly through the courts. In an interview we asked DaRos if after four years he had been deposed. He said he had not.

The malpractice case centers on the alleged failure of Doyle and the Marcus Law Firm to prepare for, keep track of, take testimony and deliver expert witnesses on time to Updike, Kelly & Spellacy, P.C., a major Connecticut law firm. Updike, Kelly agreed to try the town’s Tabor case in 2007.   

George D. Royster,  a senior partner at Halloran & Sage, who will be the town’s expert witness at the malpractice trial, wrote in his report to DaRos in October 2010 that “the lack of a complete file transfer [from Marcus to Updike], plus the file disorganization upon transfer to Updike, plus Doyle’s failure to file a legal motion to dismiss, plus Doyle’s failure to disclose the expert cutoff date, were proximate causes and substantial factors in preventing Updike from discovering the expert cutoff date until it was too late.”

He went on to say that “exclusion of the town’s experts was a serious and obvious blow to the Town’s Tabor case and was a substantial factor in causing the verdicts that were rendered against the town on Sept. 12, 2007.”  The verdict included a $12.4 million damage award against the town, plus other expenses.  The Supreme Court reversed the verdict but also said the town took the land under false pretexts.  Click here to read that story.


Cooke Loses Major Farm Status Case

Doyle filed Cooke’s lawsuits last week, roughly one month after Cooke lost a major farm status case in New Haven’s Superior Court. This Cooke lawsuit stemmed from a dispute over taxes levied on one of his properties.

The judge, Brian T. Fischer, who is the administrative judge for the Superior Court in New Haven, filed a 19-page written decision on Oct. 11. In it he denied Cooke’s arguments that the town acted illegally in declassifying Cooke’s Red Hill Road property as farm land. The property, about 10 acres, is a forest located across the road from St. Therese’s Church in Stony Creek.

The judge held that Neal, the town’s longtime tax assessor, acted properly when she removed the farm tax. From 1955 to Oct 1, 2008, the town classified and taxed the property as farm land, the judge said. 

Both the town and Cooke’s tax attorney, Fasano, Ippolito & Lee, the law firm he usually uses in his tax cases, stipulated to the facts of the case before a trial was held.

The changes made by the assessor quintupled Cooke’s taxes on the property.

Cooke’s major argument was that the Red Hill property’s farm status should be restored because it is part of a farm unit that Cooke’s family farmed in one capacity or another since 1800. It was separated from Cooke’s main farm area and home on East Main Street only when I-95 was constructed in 1955.

The judge was unconvinced by the argument that the land would still be farm land had I-95 not been constructed. This was an irrelevant argument, he said. He added that the property is no longer contiguous to the East Main Street Cooke property and is no longer under the same ownership.  “It is completely wooded and detached from 573 East Main St., by at least 1.5 miles, is nonproductive and the plaintiffs derived no income from farm operations on the property,” he stated.  “The woodlands are not within the farm and are not in any way related to the farming on 573 East Main St.”

The judge agreed that Neal was correct in denying the farm classification: “When the owner of land applies for classification as farm land, the assessor’s task is to determine whether that land IS farm land.”

Judge Fischer also rejected Cooke’s claim that the town violated the precepts of Public Act 490, a law adopted by the General Assembly in 1963 to “to help preserve an agricultural, forest, and natural resource land base in Connecticut. ” He also said that the law required that “new forms be submitted when new ownership of the parcel by another family member” occurs. No forms were submitted.  The judge found that Cooke had not met his burden of establishing that he had been over assessed or that assessor acted illegally. He then dismissed the case.

The Red Hill Road property has been the subject of numerous Board of Selectmen meetings. When John Opie served as the Republican third selectman in 2011, he took on the Red Hill argument at many meetings. He maintained it was part of a “farm unit,” an assertion Judge Fischer has now rejected.


Cooke’s New Federal Suit

In Cooke’s new 10-page federal complaint, Doyle does not mention Judge Fischer’s 15-page ruling issued last month or make any note of other tax cases Cooke has filed in state court.  Cooke’s attorney at Fasano, Ippilito and Lee filed a motion to re-argue the state case, but Judge Fischer turned him down on Nov. 15.

The new federal case centers on Cooke’s loss of farm status on his properties and his belief that DaRos steered Costco away from a parcel of his land at 573 East Main St. and to another nearby landowner owned by “a political supporter and friend of DaRos,” he said.  Cooke said a representative from Costco seemed interested in buying his property.

The lawsuit says Costco commissioned a preliminary plan for development on the Cooke parcel.  In fact, Costco did not take the next steps to go before Inland Wetlands or the Planning & Zoning Commissions, the first requirements in the permitting process. The Costco official with whom Cooke spoke is not identified in the complaint.

Cooke’s federal lawsuit asserts violations of the First and Fourteenth Amendments, which in part bar state and local governments from depriving persons of life, liberty, or property.  He seeks a jury trial as well as damages, including punitive damages and costs and attorneys fees.

Doyle portrays Cooke’s effort to attract development at his property as beginning in 2009.

“In 2009, Wayne Cooke had begun formulating plans to present to the Planning and Zoning Commission so that a large scale retail project would be permitted on the Hilltop Orchards properties and hired various professionals to assist with plans for this project,” the complaint says. 

In fact Cooke’s major effort to develop his land began in 2006 and 2007 during the time the Marcus Law Firm represented the town.

Doyle does not discuss the effort of Churchill & Banks, the Rhode Island developer, to build a mall on the Cooke property. Efforts at getting an overlay zone on his property, which is zoned industrial, failed.  Planning and Zoning and Inland Wetlands rejected the developer’s plans.

In May 2007 Shelley Marcus, a partner in the firm and Ed Marcus’s daughter, supported Churchill & Bank’s efforts to build the mall. She said before an Inland Wetlands Commission meeting that she agreed with the idea of creating a Planned Development District as proposed by the developer’s attorney.

But the commission’s chair cautioned the developer that too many wetlands were in danger of being destroyed by their plan.  In addition there were well documented soil issues on the Cooke land, the developers were told. 

Cooke pressed for the mall’s development at many public meetings. In the end, Churchill & Banks withdrew its application and left town. 

DaRos argued in an interview with the Eagle that Cooke’s land, at 573 East Main St., is encumbered. The Stop & Shop store, he said, has options on the land in order to prevent a potential competitor, including a Costco, from opening a store.

“The record shows he signed the options away on those properties.  Retail cannot be set up on those properties,” DaRos said.

Doyle addressed that argument in the complaint. He stated that DaRos’s comments that any attempt by any developer to develop Hilltop Orchards would fail because of alleged restrictions on Cooke’s right to sell the land, are untrue. The restrictions “did not and do not exist,” Doyle wrote.  DaRos argues otherwise.
 
As for Cooke’s main competitor for the Costco store, he turns out to be Al Secondino, who runs a general contracting company in Branford and with Michael Belfonti, a Hamden developer, is a co-owner of the former Bittersweet Farm located a half-mile from Cooke’s property.  The developers wanted to put up a 135-acre complex featuring a medical center, offices, single-family homes, apartments, small retail shops, and a Costco, a wholesale retail club.

The two businessmen brought their proposal for the Bittersweet Master Plan Development to the Inland Wetlands Commission in February 2011 for an informal presentation to gain input from the commissioners. After a revised master plan was presented,  it was clear Inland Wetlands was unlikely to budge.  Click here to read the story.

If Secondino had DaRos’s blessings, as Cooke claims in his complaint, the blessings sure didn’t help.


Cooke’s & Branford’s Previous Settlement

At the time Cooke filed his last two lawsuits last week, town attorneys said he had failed to comply with his 2010 settlement which would have restored his farm status.

When Neal revoked his farm designation, Cooke’s annual taxes increased from $17,000 a year to $85,000. The assessor said she removed his farm status because Cooke was not farming as his family had done in the past.

Second Selectman Andy Campbell, who is also an attorney said at a September, 2012 Board of Selectman meeting that Cooke had either submitted the wrong forms or failed to supply other forms. Until the tax assessor gets the correct forms, he said, Cooke’s farm status will not be restored.

“The town has acted in good faith,” Clendenen said at the same meeting. He said the town is ready to reinstate the farm status, but that Cooke has not completed the paperwork that all farmers are required to submit. Cooke says he has completed the paperwork.

“He’s not above the law and he should do what he agreed to,” Clendenen said at the meeting. 

Instead Cooke went back to court.

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