[T]he potential for
serious contamination involves the health of
residents in the area.
There is the
potential for litigation if purchasers of
homes become victims of pollution.
In summary, this
project has the potential to cause serious
physical and financial distress to the
present and future residents and taxpayers
of the Town of Branford.
Superior Court Judge Anthony
V. DeMayo, December 15, 2003
This
part of the Town of Branford’s website
provides access to all of the briefs in the
current appeals, as well as additional
documents that are referred to in the briefs
or are otherwise helpful to understanding
the underlying issues and events.
The narrative is
drawn from various Town documents and
briefs.
The Tabor Parcel and the Present Litigation
Narrative of Events That Led to the Present
Litigation and Appeals
The New England Estates Application for
Multifamily Residential Development of the
Process Leading to the Town’s Acquisition of
the Tabor Parcel
Planning & Zoning and the Court - Two
Concurrent Processes
An “Affordable Housing” Application Before
Planning & Zoning
The DeMayo
Decision
Status In
Early 2004
A Change in
Attorneys
The Compensation Appeals and
Unconstitutional Taking Case Are Tried
Appealing
the Verdicts
Chronology
The Tabor Parcel and the Present Litigation
The
Tabor parcel is 77 acres in size and has a
street address of 48-86 Tabor Drive.
The parcel is
bounded on the south by the Town’s former
and present landfills and on the north by
the Amtrak railroad tracks.
The common
boundary between the landfills and the Tabor
parcel is over 1000 feet long. Map
available here.
The
neighboring landfill is a low level
Superfund site regulated by the EPA.
In 1976, a CT
Dept. of Environmental Protection inspection
of the landfill, following receipt of a
complaint that 100 drums of industrial waste
per month were disposed of at the landfill,
noted the presence of two drums that
contained
elevated concentrations
of acetone, vinyl acetate,
unidentified
acrylic, toluene, tetrachloroethylene, and
chlorobenzene.
An
environmental study of the landfill
conducted in 1986 revealed that “methane
gas, leachate and groundwater from the
active and inactive landfill” might impact
the Tabor parcel.
A 1995 study
found debris, waste material and 55-gallon
drums on the parcel and concluded that
contaminated liquid (leachate) was migrating
from the landfill onto the Tabor parcel and
that some environmental contamination might
be present.
In 1991, the
Town spent millions of dollars complying
with an order issued by the Connecticut
Department of Environmental Protection
requiring the Town to connect residents near
the landfill to the municipal water system
because of concerns that pollution from the
landfill was contaminating well water in the
area.
The Town became the owner
of the Tabor parcel on January 5, 2004
through the exercise of its power of eminent
domain.
The
former owners of the Tabor parcel, Thomas
Santa Barbara, Jr. and Frank Perrotti, Jr.,
brought an appeal in July 2004, claiming
that the amount paid by the Town in the
eminent domain proceeding, $1,167,800, was
inadequate to fully compensate them for the
value of the parcel.
New England
Estates, LLC, who held an option on the
Tabor parcel at the time of the taking,
filed its own appeal of the amount of
compensation paid by the Town.
Those appeals
were eventually consolidated for trial.
Earlier, in July
2003, New England Estates, the option
holder, had filed suit claiming that the
taking was unconstitutional, a conspiracy by
Town officials to avoid the construction of
affordable housing on the site.
New England
Estates sought a temporary injunction to
prevent the Town from acquiring the property
by eminent domain.
Superior Court
Anthony DeMayo denied the injunction on
December 15, 2003, thus allowing the Town to
complete the taking of the parcel.
The
unconstitutional taking lawsuit continued,
however.
In
the summer of 2007, after a change in
attorneys handling the cases, both the
compensation appeals and the constitutional
suit went to trial and were decided against
the Town.
On August 3,
2007, Superior Court Judge William Cremins
determined that the fair market value of the
parcel on the date of the taking, January 5,
2004, was $4.6 million.
On September 12,
2007, a jury found against the Town on the
constitutional claim, and awarded New
England Estates $12.8 million.
The Town has
appealed both judgments
legal
briefs are available here. The appeals were argued before
the Connecticut Supreme Court on May 26,
2009.
Return to beginning of document
Narrative of Events That Led to the Present
Litigation and Appeals
The New England Estates application for
multifamily residential development of the
Tabor parcel
In
2002, New England Estates applied for
permits to construct 268 condominium units
and a golf course on the Tabor parcel, which
they had an option to purchase from owners
Perrotti and Santa Barbara. The potential
environmental impact of the landfill on the
proposed development was not discussed
during the public hearings. The Planning &
Zoning Commission denied the requested
permits, citing traffic and density.
New England
Estates appealed the denial.
In
early 2003, the Planning & Zoning Commission
and New England Estates discussed settling
the appeal.
New England
Estates offered a smaller project with units
restricted to 55-and-older residents as a
possible settlement.
While assisting
the Commission in its consideration of this
proposal, Town Attorney Penny Bellamy
consulted Fuss & O’Neill, the Town’s
engineers for the landfill.
Fuss & O’Neill
had been unaware of the proposal to put a
dense residential development next door to
the landfill and, when asked, raised a
number of concerns. Letter
from Fuss & O'Neill available here.
The
Town shared Fuss & O’Neill’s concerns with
New England Estates, and tried to engage New
England Estates in discussions about more
fully exploring the site and addressing the
conditions identified by Fuss & O’Neill.
The developer
was uninterested in the concerns identified
by Fuss & O’Neill.
New England
Estates began to suggest that it might
propose an “affordable housing” project for
the site.
The
Town continued to try to focus New England
Estates on the environmental problems at the
site.
At the Town’s
request and expense, Fuss & O’Neill compiled
a list of relevant reports and filings
concerning the landfill to assist the
developer’s consultants in getting familiar
with the environmental issues affecting the
parcel.
The developer’s
consultants had not reviewed these reports,
though all were publicly available at the
offices of the Connecticut Department of
Environmental Protection.
Also at the
Town’s request, Fuss & O’Neill reviewed the
developer’s environmental reports and
attended a meeting with the environmental
consultants for the developer.
New England
Estates did not provide its consultant with
sufficient resources to respond usefully to
the issues raised by Fuss & O’Neill.
The actions of
New England Estates made it clear that only
the Town could be counted upon to protect
the health and safety of its residents over
the long term.
Return
to beginning of document
Process Leading to the Town’s Acquisition of
the Tabor Parcel
Mr.
DaRos went to the Board of Selectmen and
proposed that the Town acquire the Tabor
property, by eminent domain if necessary, in
order to give the Town control of the site.
He believed that
the site should be restricted to
non-residential use for the foreseeable
future; that the Town should take
responsibility for thoroughly investigating
the site, for remediating it, if necessary,
and for monitoring it for as long as
necessary to secure the health and safety of
the residents in that area.
He believed that
the Town should avoid putting residents in
the way of possible harmful effects from the
landfill, and should avoid the possibility
of lawsuits over real or imagined health
conditions.
The Selectmen agreed with
him, believing that control of the site was
fiscally and ethically responsible over the
long run.
The
unanimous vote by the Board of Selectmen in
May 2003 was ratified by a unanimous vote by
the Representative Town Meeting and by
unanimous votes by the Board of Finance and
the Representative Town Meeting to
appropriate the necessary funds.
In all, seven
public hearings on the matter were held over
four months, including a hearing before the
Administrative Services Committee on July 2,
2003 at which committee members questioned
representatives of Fuss & O’Neill.
During the months-long period of
consideration by the appropriate Town
bodies, the local papers were full of
articles based on interviews with the
attorney for New England Estates and the
owners of the property.
They argued that
the contamination concerns were overblown
and that the Town should not take the
property.
The unanimous
votes are evidence of the unanimity of
opinion in town at the time - that the
Town’s acquisition of the property was the
proper and responsible course of action.
Information available to
Town officials and residents included:
-the landfill is a
low-priority Superfund site;
-the landfill contains
industrial waste, household hazardous
substances (paint, paint cans, fuels), and
sludges;
-contaminated soil is used
as daily cover at the landfill ;
-water
leaching from the landfill (leachate)
contains volatile organic compounds;
volatile organic compounds can be
carcinogenic and have been identified as
asthma triggers, particularly for children;
testimony of ESDHD Director Jim Monopoli;
-volatile organic compounds can migrate from
leachate in the groundwater to surrounding
soil and then migrate through the soil and
become trapped in basements and other
surface structures.
The potential
for volatile organic compounds to migrate to
the surface at the Tabor Drive site is
heightened because of the shallow water
table on the site.
-the standards by which
the constituents of leachate are measured
change over time, and tend to become more
stringent as knowledge grows and the methods
of measuring become more precise;
-the landfill is not
closed; the landfill is still accepting
bulky waste and the 30-year post-closure
monitoring period on the landfill has not
even begun; with the recognition that
landfill leachate persists for many years,
the regulatory community is considering
extending the required monitoring period
beyond 30 years;
-residential development
is a greater concern than industrial
development because residential use, with
continuous occupation every day and around
the clock, necessarily heightens human
exposure to potential contamination;
-methane, an explosive gas, is a component
of the decomposition gas that is a
by-product of the bacterial processes that
take place in a landfill.
Methane is
explosive in concentrations above five
percent.
The landfill is
generating methane.
Levels in the
landfill have been as high as 69 percent.
Up to 60%
methane was detected in a monitoring well in
the vicinity of the landfill garage in July
2003.
Testing at the
property line between the landfill and the
Tabor parcel detected methane at levels
between four and five percent, within DEP
requirements.
At this time,
the methane can easily vent to the
atmosphere.
When the
landfill is closed, less of the methane can
escape in this way, and more of the methane
is likely to be forced through pathways in
the soil.
Methane can
migrate at low concentrations but, if
trapped, the concentration can rise to
explosive levels.
(These points
are detailed, with references to the record,
in the Planning and Zoning Commission’s
January 8, 2004
Memorandum of Decision on the
Application of New England Estates, LLC.)
The
Connecticut Department of Environmental
Protection recommended that the Town
establish an appropriate buffer zone around
the landfill in order to mitigate the
impacts of the landfill.
Letter
from DEP available here.
First Selectman DaRos met
with the owners of the Tabor parcel, but was
not able to reach an agreement on a price
for the parcel.
Return
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Planning & Zoning and the Court - Two
Concurrent Processes
In
the summer of 2003 (while the Town bodies
were voting to acquire the parcel), New
England Estates took two actions aimed at
building a multifamily residential
development.
In June, it
applied to the Planning & Zoning Commission
to change the zoning on the Tabor parcel
from Industrial to Residential and for site
plan approval for 354 residential units and
a nine-hole golf course. In July 2003, it
sued for a temporary injunction to stop the
Town from taking the property.
Return
to beginning of document
An “Affordable Housing” Application Before
Planning & Zoning
New
England Estates claimed that its application
for 354 residential units and a nine-hole
golf course qualified as an “affordable
housing development” under Connecticut
General Statutes Section 8-30g.
With the filing
of the request for an injunction the
following month, the question of whether the
Town would eventually be able to acquire the
property became tied up in court, and the
Planning and Zoning Commission scheduled
public hearings on the application, even
though it was anticipated that the Town
would eventually own the property.
Many
witnesses for the developer testified in the
Planning and Zoning hearings, including
environmental experts.
Residents and
others testified against permitting
residential development on the Tabor parcel,
including Fuss & O’Neill engineer David
Hurley.
Kurt
Schwanfelder, a member of the Representative
Town Meeting and a trained mechanic,
testified regarding the Town’s installation
of public water in the area in 1991 and his
observations of dumping at the Tabor site.
Peg Hall, the
Town’s solid waste manager, testified about
materials in the landfill and concerns about
methane once the landfill was closed and
capped.
Health Director
Jim Monopoli testified about cancer-causing
volatile organic compounds.
Testimony of ESDHD Director Jim Monopoli;
The Commission
received a letter from First Selectman
DaRos, who asked the Commission to deny the
application, and explained the Town’s effort
to acquire the property.
The Planning and
Zoning Commission denied the application on
January 8, 2004.
Memorandum
of Decision
Return
to beginning of document
The DeMayo
Decision
In
its July 2003 request for a temporary
injunction to stop the Town from taking the
property, New England Estates claimed that
the taking was an unconstitutional
conspiracy to stop affordable housing by the
Town and its selectmen, Mr. DaRos, Mr. Walsh
and Mr. Denhardt, and Town Clerk Georgette
Laske.
The Town,
represented by Town Attorney Penny Bellamy
and other lawyers from Wiggin and Dana,
denied any improper motives.
At a hearing,
Town witnesses testified regarding their
concerns about long-term health effects on
residents.
After five days
of testimony from 16 witnesses, Judge
Anthony DeMayo rejected the developer’s
claims.
He denied the
temporary injunction sought by New England
Estates and refused to stop the Town from
taking the property by eminent domain.
Decision of Judge DeMayo available here.
Judge
DeMayo’s decision states:
“The plaintiff
opened its presentation with the stated
purpose of showing that a conspiracy was
formulated by the individual defendants with
Mr. DaRos as the ringleader.
As the
defendants and other witnesses testified, it
became obvious to the court that the
plaintiff had no evidence to support its
theory.
The court has
searched the transcripts and can find no
evidence of “bad faith” on the part of any
of the defendants.”
“The allegations
against Mr. DaRos are serious and all
inclusive, yet the evidence offered to
support them in the injunction hearing was
non-existent.
While reasonable
minds may differ as to how, when and why
certain decisions were made by Mr. DaRos,
the court finds nothing to support the
allegations that even assuming actions taken
were improper, he acted “intentionally,
knowingly, recklessly, wantonly, callously
or maliciously” at any time.
In fact, the
court was impressed by Mr. DaRos’ handling
of this matter and demeanor on the stand.
He appears to
have had genuine concerns about
Branford’s interests and still displayed a
desire to be fair to the property owners and
the plaintiff.”
The judge
concludes that the Town’s concerns about
contamination “came from all sources, all
strongly indicating that this was not as
trivial an issue as the [developers] urge[d]
the court to believe. . . . [T]he potential
for serious contamination involves the
health of residents in the area.
There is the
potential for litigation if purchasers of
homes become victims of pollution.
In summary, this
project has the potential to cause serious
physical and financial distress to the
present and future residents and taxpayers
of the Town of Branford.”
Decision of Judge DeMayo available here.
Judge
DeMayo released his decision on December 15,
2003, shortly after the election of John
Opie as First Selectman in November 2003.
(Mr. DaRos had
not been a candidate for re-election.)
It fell to First
Selectman Opie to complete the taking of the
property.
On January 5,
2004, the Town deposited $1,167,800 with the
court and title to 48-86 Tabor Drive passed
to the Town.
Return
to beginning of document
Status In
Early 2004
The
status of the Tabor property and the related
litigation at the end of the DaRos term and
the beginning of the Opie term was as
follows:
The Town now
owned the property.
The Town had a
decision from a Superior Court judge stating
that there was “no evidence” of any kind of
bad faith on the part of Town officials, and
that the residential project proposed by New
England Estates “had the potential to cause
serious physical and financial distress to
the present and future residents and
taxpayers of the Town of Branford.”
However, New
England Estates’ suit claiming that the
taking was unconstitutional was still alive.
Judge DeMayo’s
decision had only resolved the question of
whether a temporary injunction preventing
the Town from taking the property would be
issued.
Even though it
had lost its bid for a temporary injunction,
New England Estates could have sought a
mandatory injunction.
But it did not.
New England
Estates did not appeal the denial of its
affordable housing application.
It withdrew its
pending appeal of an Inland Wetlands
Commission decision, withdrew four appeals
of various Planning and Zoning Commission
actions, withdrew a Freedom of Information
complaint, and withdrew its appeal of the
denial of its 2002 zoning application.
Later in 2004 the former
owners of the Tabor parcel and New England
Estates filed compensation appeals, claiming
that the property was worth millions more
than the $1,167,800 that the Town had
deposited with the court at the time of the
taking.
The
Tabor litigation was now on two separate,
parallel tracks.
These were:
(1) the
compensation appeals, one appeal by the
former owners and one appeal by New England
Estates.
These appeals
contested the amount that the Town had
deposited to acquire title, and claimed that
the land had been worth millions more on the
date of the taking; and
(2) the
unconstitutional taking case.
In this case,
New England Estates was pursuing only money
damages, and dropped any claim for the
return of the land.
Early
in 2005, the former owners offered to settle
their compensation appeal for $3.9 million.
The Town did not
accept the offer and David Reif of McCarter
& English, LLP continued preparing the
compensation cases for trial.
The compensation
cases were scheduled to be tried in February
2006.
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to beginning of document
A Change in
Attorneys
Cheryl Morris was elected First Selectman on
November 8, 2005.
As soon as she
was sworn in, she convened a special meeting
of the Board of Selectmen in order to
appoint Edward Marcus of The Marcus Law Firm
as Town Attorney.
One of the new
Town Attorney’s first actions was to take
over the compensation appeals and
unconstitutional taking case from the law
firms that had been handling them.
The
new Town Attorney put off the trial of the
compensation case, scheduled for February
2006.
In early 2007,
the Morris administration, with The Marcus
Law Firm as Town Attorney, proposed a
settlement of the unconstitutional taking
case.
The settlement
called for the Town to convey 48-86 Tabor
Drive to New England Estates for the
development of 275 residential condominiums.
The
Representative Town Meeting rejected the
proposed settlement, after a public hearing
and assurances from The Marcus Law Firm that
the Town would hire the very best experts
and mount a vigorous defense.
In May, less
than two months before the first trial was
to begin, the Town hired David Reif of
McCarter & English, LLP to argue the
compensation cases and the firm of Updike,
Kelly & Spellacy to argue the
unconstitutional taking case.
Return to
beginning of document
The Compensation Appeals and
Unconstitutional Taking Case Are Tried
The
compensation cases went to trial in late
June 2007.
Superior Court
Judge Cremins refused to permit the Town’s
proposed expert on the environmental
condition of the property to testify because
the Town had missed the deadline for
providing the names of expert witnesses.
Judge Cremins determined that the highest
and best use of the property was for
residential development and that the fair
market value of the parcel on the date of
taking was $4,600,000.
The
unconstitutional taking trial, also presided
over by Judge Cremins, began in August.
Judge Cremins ruled that Town witnesses
could not mention that the 77 acres was
contaminated, nor could Town witnesses
mention that Judge DeMayo had already
considered the question of whether the Town
had done anything improper in deciding to
take the land.
The Town’s
expert witnesses were not allowed to
testify, again as a sanction for late
disclosure of their intention to testify.
The jury found
against the Town and awarded $12.8 million,
mostly for “lost profit” damages, to New
England Estates.
Return
to beginning of document
Appealing
the Verdicts
The
Town has now appealed both judgments, and
the appeals were argued before the
Connecticut Supreme Court on May 26, 2009. Legal
briefs are available here.
It is not known
when the Court will render a decision.
Return
to beginning of document
Chronology
1976
- Following a complaint that 100 drums of
industrial waste per month were disposed of
at the landfill, a CT Dept. of Environmental
Protection inspection noted the presence of
two drums that contained
elevated concentrations of acetone, vinyl
acetate,
unidentified acrylic, toluene,
tetrachloroethylene, and chlorobenzene.
1986
- US Environmental Protection Agency
designates the landfill as a low priority
Superfund site.
Environmental
study reveals that “methane gas, leachate
and groundwater from the active and inactive
landfill” may impact the Tabor parcel.
1991 - In order to comply
with a Connecticut DEP order, Branford
spends millions of dollars to connect homes
located near the landfill to the public
water supply.
Sept.
and Oct. 1995 - Phase I and II environmental
studies find debris, waste material and
55-gallon drums on the parcel.
The studies
conclude that leachate is migrating from the
landfill onto the Tabor parcel and that some
contamination may be present.
May
1, 2001 - New England Estates signs an
option agreement to purchase the parcel.
New England
Estates begins making payments to the
owners.
June
15, 2001 - New England Estates receives
Phase I environmental study of the parcel
from IES (its environmental consultants).
IES concludes
that some contamination has occurred and
recommends testing.
No testing is
done.
June-Dec. 2002 - New England Estates applies
to the PZC for a permit to build 268 units
and a golf course on the parcel.
During related
hearings, New England Estates presents
evidence concerning the impact of the
proposed development on schools, taxes and
traffic but fails to mention the
environmental studies.
The PZC denies
the application.
New England
Estates appeals to the Superior Court.
Jan.-March 2003 - The Town and New England
Estates engage in negotiations to settle the
zoning appeal.
New England
Estates proposes to restrict its project to
persons aged 55 or older.
March 2003 - Town Attorney
Penny Bellamy contacts the Town’s landfill
engineers, Fuss & O’Neill, and learns of
risks related to the parcel’s development.
Town Attorney Penny Bellamy conveys the
engineers’ concerns to New England Estates’
counsel.
Stanziale and Pizzolorusso (two principals
of New England Estates) meet with DaRos.
DaRos expresses
concerns about potential lawsuits by people
claiming that illnesses have resulted from
either actual or perceived exposure to
hazardous substances.
DaRos suggests
that New England Estates conduct a Phase II
study and that the parties’ engineers
discuss the feasibility of developing the
Parcel.
Mr. DaRos directs Fuss &
O’Neill to provide New England Estates’
engineers with a list of relevant reports
and studies concerning the landfill.
April
16, 17, 2003 - Fuss & O’Neill outlines their
concerns in a letter to Town Planner Shirley
Rasmussen.
Branford serves
a copy on New England Estates.
April 23, 2003 - The
environmental consultant to New England
Estates, IES, produces a Phase II study that
fails to address the primary concerns
regarding leachate and methane migration
raised by Fuss & O’Neill.
May 15, 2003 - Fuss &
O’Neill meet with IES regarding Fuss &
O’Neill’s concerns about development of the
parcel.
May 21, 2003 - Based on
concerns about the environmental condition
of the parcel, the Board of Selectmen vote
to acquire the property.
June-July, 2003 - After two public hearings,
the RTM’s Administrative Services Committee
recommends to the full RTM that it approve
acquisition of the parcel and the RTM, on
July 9, votes unanimously for the
resolution.
On June 30, 2003
the Board of Finance appropriates $2.5
million for costs related to the acquisition
of the parcel.
June 27, 2003 - New
England Estates files an application with
the Planning and Zoning Commission for an
affordable housing development of 354
residential units on the Tabor parcel.
July 18, 2003 - New
England Estates sues the Town and its
officials, claiming that the taking is
unconstitutional and seeking an injunction
to stop the Town from taking the Tabor
property.
August 13, 2003 - The RTM approves the
appropriation and bonding of $2.5 million
for the acquisition of the Tabor Drive
parcel.
The vote is
unanimous.
Sept. 4, Oct. 2, Nov. 6,
2003 - The Planning and Zoning Commission
holds hearings on New England Estate’s
affordable housing application.
Nov. 20, Dec. 4, 2003 -
The Planning and Zoning Commission discusses
New England Estates’ application.
December 15, 2003 - Judge
DeMayo issues his decision on the injunction
request of New England Estates.
January 6, 2004 - The Town
completes its taking of the parcel, and
becomes the legal owner.
January 8, 2004 - The
Planning and Zoning Commission votes to deny
New England Estates’ affordable housing
application.
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