Tabor: ​“It’s Over”

A $3.48 million settlement designed to end the Tabor land case before it gets to the door of the U.S. Supreme Court took a double step forward last night as the Representative Town Meeting (RTM) and the Board of Selectmen voted unanimously in separate rooms in the same building to end nearly eight years of litigation. Roughly $933,000 of the total goes to end the case; the rest is for already incurred Tabor expenses.

The decision to end the litigation rather than risk further legal consequences to the town if the U.S. Supreme Court decided to take the case, an unlikely scenario to begin with but always possible, came with bipartisan support of both the RTM and selectmen.

The Board of Finance approved the settlement late last month. Town Counsel William H. Clendenen Jr. and Finance Director Jim Finch outlined a series of scenarios. Click here to read about them.

Although the RTM and the Board of Selectmen have changed over the years, they have acted unanimously regarding the seizure by eminent domain of the 77 acres of Tabor Drive property. What they haven’t wanted is to put residential housing on the land. 

“When we took Tabor we eliminated a risk forever,” First Selectman Unk DaRos said of his decision in 2003 to seize the land . ​“That’s the idea that people have lost in this whole thing.” The risk, he said, came from the adjacent contaminated land fill. ​“This could have been a potential problem for our residents. Now the town of Branford has control over this land.”
 
The Tabor case began in 2003 when the town moved to take by eminent domain 77 acres of open space because of its proximity to the town’s contaminated town dump. New England Estates, (NEE) a developer hoping to build condos there, sued the town. It won a $12.4 million judgment at the trial level. The Connecticut Supreme Court then unanimously overturned that judgment in what was a major victory for the town. Now NEE wanted the U.S. Supreme Court to restore the judgment. 

In the past, DaRos has said he would fight the case all the way to the U.S. Supreme Court. But Finch had concerns and discussed with DaRos the potential financial risks. Then they both met with Clendenen.

DaRos signed the settlement papers on behalf of the town today, exactly a week before NEE was to submit its petition to the U.S. Supreme Court. Overall, it will take another two weeks before the final settlement is completed. 

DaRos said afterwards, ​“It’s over. At this point, I believe even if we went to the U.S. Supreme Court it would cost us more in legal fees than what this settlement would be. This was a business decision that was done by the RTM, by the Board of Finance and now by the Board of Selectmen,” he told the Eagle.

New England Estates, which had only an unrecorded option and no approvals to build on the site, won its $12. 4 million jury judgment in 2007 at the end of a trial that was skewed in favor of the developer. 

The town went to trial after former First Selectman Cheryl Morris sought to settle with the developer in a deal that would have permitted hundreds of condos to be built on the site. The RTM rejected the deal, having been told expert testimony would be presented at trial to explain its reasoning in seizing the land. It wasn’t. The trial judgment was reversed unanimously by the Connecticut Supreme Court because NEE only had an option to build. It did not own the land.
 
At the RTM meeting Sandra Reiners, the chair of the Ways and Means Committee, said her committee met a week ago and voted unanimously to approve the bond resolution. ​“We have been engaged in discussion, litigation, a defense of our position for many years now. This is an effort to resolve the issue. It is a tolerable cost. And it is necessary to move on.”

Her sentiments were echoed by others.

Frank Twohill, the Republican minority leader, said he supports the settlement. ​“Unfortunately there is a threat that this case would be brought to the U.S. Supreme Court,” said Twohill, an attorney. ​“This ought to finally put the matter to bed.”

Anthony Giardiello, the Democratic majority leader, said: ​“I am supporting it. It gives us some finality and certainty.”

Richard Greenalch, Jr. an attorney, said that if the case was accepted by the U.S. Supreme Court, ​“our costs would be far greater and our liability would be much greater.” Greenalch, a Republican member of the RTM, said that when it is all over, there should be an exploration of why and how Tabor happened so that the town learns from it. The Tabor case has spanned four administrations. 

The owners of the 77 acres, Thomas Santa Barbara, Jr. and Frank Perrotti, Jr., who once ran the town landfill, have received the $4.6 million Waterbury Superior Court Judge William T. Cremins, Jr awarded them when the town formally seized the land by eminent domain in 2004. 

NEE was the moving party in seeking to get its case before the U.S. Supreme Court. The owners are not involved in the Supreme Court case.

Yet it is one of the chief attorneys for the owners, Steven R .Humphrey, a partner at Robinson & Cole, who is the key negotiator between Clendenen and Tim Hollister of Shipman & Goodwin, who represents NEE. This is an unusual situation, and RTM member Paul Muniz sought to better understand it at the ways and means committee discussion a week ago.

“I believe the settlement is with owners. What is the relationship between the owners and the NEE? He asked. ​“How do we know NEE won’t go to the U.S. Supreme Court? “

Clendenen first explained that NEE had an option relationship with the owners of the land, that NEE did not own the land. He said he had a relationship with Humphrey.

“I refuse, and maybe I am thick, to negotiate with NEE. I do not believe they are entitled to it,” he said,” Clendenen told the committee a week ago. 
 
Clendenen said how the funds are divided is up to the two law firms, the owners and the principals of NEE. 

There are two other ways the town could recover funds. One is via a lawsuit it filed against its insurer and the other is via a lawsuit it filed against David Doyle and the Marcus Law Firm.

Clendenen told the committee that the insurance case will be heard in court next year and while one could never predict, he said: ​“I am hoping to get $5 or 6 million or more out of the insurance company. ​“They might even have to pay legal fees”. 

The Marcus Law Firm, which has been sued for malpractice in connection with the case, has a $3 million policy, he said. The firm denies culpability. 

Republican Rep. Peter Black, an attorney, said he was in favor ​“of putting this to bed.” He also asked if he might meet with Clendenen to review the insurance case and Clendenen readily agreed. Before the RTM meeting, Twohill and Black met with Clendenen at his New Haven office. Giardiello joined them. The town’s lawsuits against its insurer and its former town counsel were filed two years ago. 

Finch and Clendenen made presentations before the Board of Finance, which was key and the RTM committee last week. Finch told the ways and means committee that the settlement costs an additional $933,000. He said the town was in a very good position financially. ​“We can borrow money. We are well- positioned. With this settlement we can move on, ​“he said, referring to other potential projects the town wants to undertake. 

Neither Finch nor Clendenen spoke at either of the meetings last night. The boards were ready to end this long, legal saga and each moved quickly. 
 
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