THE ISSUE -The Tabor Drive property

WHERE UNK STANDS:

FREQUENTLY ASKED QUESTIONS

Was the property tested for contamination?
The Fuss & O'Neill environmental engineers had been monitoring the landfill since 1985. Their results showed that contamination from the landfill was moving with the groundwater onto the property. But even if testing results had shown low levels of contamination, those results would not have addressed the real concern which was about what contamination might get to the property in ten, twenty or fifty years. There is no way to predict that. It wasn't accurately known what been dumped in the landfill over the 26 years of its operation. (Private waste haulers had operated the site under contract with the Town for most of that time.) Nobody can predict what chemicals might be generated inside a landfill from reactions in the waste. Because of the unpredictability of landfill contamination, the Department of Environmental Protection requires landfills to be monitored for at least twenty to forty years after the landfill is closed. It was also known that disturbance of the site during construction could change the movement of contamination in unpredictable ways.

Unk and other Branford officials were also aware that other towns, including Southington, CT, were threatened with staggering costs for cleaning up contamination from their town landfills. Southington's Town Manager testified before the US Congress. in 1997 that his town was being presented with clean-up schemes for amounts ranging from $35 million to $95 million.

Given our growing awareness that chemicals in the environment impact health in ways that only become apparent over time, and that justice is often sought through litigation, Unk believed that the Town had the moral and financial responsibility for any health and safety problems that arose in the future.

Was the RTM fully informed in 2003?
The RTM was not deceived; far from it. Most RTM members attended the committee meetings where the proposed acquisition and the reasons for doing it were presented. The RTM heard directly from Fuss & O'Neill and RTM committee members had an opportunity to ask every question they wished. Fuss & O'Neill expressed real concerns about the prospect of residential development on the Tabor parcel, and never expressed the opinion that the parcel was "clean" to anyone.

The RTM heard not only that the landfill was still open, still accepting waste, still generating contaminants including volatile organic compounds and compounds known to be asthma triggers and carcinogens, but also that the landfill would likely continue to generate these contaminants for more than 30 years after it is finally closed. The RTM heard Fuss & O'Neill's concerns about methane, which is explosive. They also heard about other towns that had been sued years after granting permits for housing next door to their landfills.

The state Department of Environmental Protection (DEP) also recommended after the votes by the RTM that the Town acquire the Tabor property in order to maintain it as a buffer to the landfill.

ALL THE FACTS

The Tabor Drive property is an old 77-acre gravel pit that lies between the south end of Tabor Drive and Pine Orchard Road just south of the Amtrak line. The Town has owned the parcel since it took the property by eminent domain January 2004. The Town's still-open landfill lies immediately south of the western half of the property and shares a 900 -foot-long common border.

Thomas Santa Barbara and Frank Perrotti, the property's former owners, purchased the parcel in 1991, and applied to DEP to use it as another landfill, but the application was denied. In 2002, when the property was still owned by Santa Barbara and Perrotti, New England Estates, LLC, would-be developers of the property, applied to the Planning & Zoning Commission (P&ZC) to build 268 condominiums on the parcel. The P&ZC denied New England Estates' application, and New England Estates appealed.

New England Estates and Town staff, acting on behalf of the P&ZC, discussed how the denied application might be modified to address the Commission's objections. As those discussions progressed, First Selectman Unk DaRos became concerned that locating a large residential development on a parcel immediately adjacent to the landfill created health and safety risks for the future residents and financial risk for the Town. Unk knew from conversations with the Town Manager of Southington that Southington and other towns had faced millions of dollars of lawsuits arising from decisions to allow housing near their landfills. The specific concerns about the Tabor parcel included methane migration across the property line and a contaminated plume of groundwater containing volatile organic compounds from the landfill, as outlined in communications from Fuss & O'Neill, the engineering firm that was monitoring the landfill. In addition, the Town needed land for recreational fields, a new public works facility and future cemetery space.

Based on these needs and concerns, the Board of Selectmen (Unk DaRos, Fran Walsh and Bob Denhardt), the Board of Finance and the RTM all voted unanimously to acquire the property, by eminent domain if necessary. The Town then negotiated with the owners to purchase the property but was unable to reach an agreement regarding the fair market value of the land.

New England Estates went to court, seeking an injunction to stop the Town from exercising its power of eminent domain, claiming that First Selectman DaRos acted "intentionally, knowingly, recklessly, wantonly, callously or maliciously" with other Town officials to get approval of a bad faith decision to condemn the property and that they would suffer damages that included their estimates of lost profits. Superior Court Judge Anthony DeMayo heard New England Estates' evidence over five days of hearings in 2003. On December 15, 2003, just after John Opie took office, the Judge rejected the request, stating that the project had "the potential to cause serious physical and financial distress to the present and future residents and taxpayers of Branford", that he "was impressed by Mr. DaRos handling of this matter" and his "genuine concerns about Branford's interests", and that the developer "had no evidence to support its theory". The developer brought emergency appeals of Judge DeMayo's ruling but the Connecticut Appellate Court and the Connecticut Supreme Court declined to hear their appeals.

Also in 2003, after the Board of Selectmen had voted to acquire the property, but prior to the approval by the RTM, New England Estates filed another application to develop the 77-acre Tabor property. This proposal was for 354 condominium units, including 106 units claimed to be "affordable." During the P&ZC's consideration of this second proposal, a) a detailed analysis by Fuss & O'Neill of the potential for future contamination of the site, b) communications with DEP, c) testimony from the Director of the East Shore Health District, and d) inconsistencies between the environmental claims of the developers' experts and the results of more than fifteen years of monitoring strengthened the belief that chemicals leaching from the landfill could present a very real health risk to future residents if the property were developed as proposed. The P&ZC denied New England Estates' application in early 2004.

When the Appellate and Supreme Courts declined to hear New England Estates' appeals of Judge DeMayo's decision, First Selectman John Opie went forward with acquiring the Tabor property by eminent domain. The Town deposited $1.1 million with the court, based on the estimate of the fair market value of the parcel provided by an expert appraiser. Santa Barbara and Perrotti appealed that value. First Selectman Opie hired David Reif, an experienced trial attorney, to defend the Town's valuation of the Tabor property, but retained the attorneys who had defended the Town against the claim that the exercise of eminent domain was done in bad faith and already knew the facts of the case. The valuation case was scheduled for trial in February 2006, and the bad faith case was scheduled for trial in February 2007.

Immediately upon being sworn into office in November 2005, First Selectman Cheryl Morris ordered the attorneys working on the Tabor cases to turn their files over to the Marcus Law Firm, which she had appointed Town Attorney.

During the next fifteen months, the Marcus Law Firm negotiated with the attorneys for New England Estates. On February 7, 2007, the Marcus Law Firm presented a proposed settlement to the Board of Selectmen (Cheryl Morris, Dick Sullivan and John Opie). The Selectmen approved the settlement and then sent the proposal to the RTM, which also had to approve it. The settlement, had it been accepted by the Town, would have required the Town to convey most of the Tabor parcel to New England Estates and to have the Town's Inland Wetlands Commission and the P&ZC approve a 275-unit condominium complex on the site. On April 11, 2007, the RTM voted unanimously to reject the proposed settlement and to reaffirm its prior decision to acquire the property by eminent domain.

After the RTM rejected the proposed settlement, First Selectman Morris announced that she was retaining additional attorneys to bolster the representation being provided to the Town by the Marcus Law Firm in the two Tabor cases. In early May, she rehired David Reif to assist in the defense of the valuation appeal and engaged the law firm of Updike, Kelly & Spellacy to lead the defense against the charge of wrongful taking. The trail to determine the value of the property was scheduled to begin the first week in July. The trial of the wrongful taking claim was scheduled to begin August 8.

The valuation trial concluded in the first week if July and three weeks later, Judge William Cremins issued a decision which stated that the best use of the property was residential and that the value of the property at the time the Town took it was $4.6 million (instead of the $1.1 million value shown by the appraisal obtained by the Town). He then denied a request to postpone the second trial until after appeals of the valuation decision were resolved.

When the trial for the wrongful taking claim opened, Judge Cremins ruled that the Town's lawyers had not identified its expert witnesses in time. The Marcus Law Firm knew of the deadline, set during a telephone conference among the judge and the attorneys when only the Marcus Law Firm was working on the case, but did not tell the other lawyers who were defending the case. The Town's experts were therefore excluded, which meant that the Town's lawyers had to try the case without any expert testimony on environmental contamination or lost profit damages. As the trial continued, Judge Cremins repeatedly made rulings that assisted New England Estates, and prevented the Town's witnesses from testifying fully about their reasons for voting to acquire the Tabor parcel. As a consequence of the exclusion of the Town's evidence, the jury awarded damages of $12.8 million.

The valuation has been appealed and a notice of appeal of the jury verdict has been filed.