The Villages, LLC v. Enfield Planning and Zoning saga continued last week with Judge Trial Referee Richard Rittenband denying the PZC’s motion for reconsideration and sustaining Villages’ objection.

To provide context to the proceedings, you will find copies of the documents submitted to the Superior Court.

Motion_to_Reargue

Objection to Motion To Reargue

Order: Motion to Reargue Denied

Order: Objection to Motion to Reargue Sustained

This is yet another slap-down to the PZC by Judge Rittenband, who last month decided that Commissioner Lori Spazzarini Longhi wrongly participated in Villages, LLC’s application and so-tained the proceedings by her participation that Villages was denied a fair hearing.

If the Motion to Reargue is any indication of the grounds upon which Town Attorney Kevin Dineen hopes to appeal, he would do best not to waste his time. A quick read through the motion shows that it is almost entirely directed at issues of fact not issues of law. As mentioned in a prior commentary on this topic– findings of fact are set in stone by the factfinder (either a jury or a judge). The general purpose of a motion for reconsideration is to draw the judge’s attention to a point of law that he may have misinterpreted, not to invite him to revise his fact-finding, unless there are clear factual mistakes or inconsistencies.

In particular, Section 3 of the motion is nothing more than a baldfaced plea to set aside the finding that Commissioner Longhi engaged in ex parte communications and substitute her testimony to the contrary to the Court’s finding of fact. The same is true with Section 1– The commission asks the judge to re-decide whether the second bias incident detailed by former PZC Chair DiPace was communicated to the applicants either prior to or following the application. Again, it calls for a finding of fact. Factual issues generally can only be revisted upon the discovery of new evidence of material significance– and cannot be considered at the appellate level.

Defendant’s assertion that the plaintiff’s claim of bias precludes further claims of bias– is a novel issue of law– but one that has no substantiation in common law.

Although this latest skirmish raises some curious legal issues– there are far more significant policy issues at stake in this case. Often attorneys for a public agency will encourage it to exhaust ever avenue of appeal possible, irregardless of the cost. The Planning and Zoning Commissioners should be wary of such advice. The Town does not have a bottomless treasury– there are undoutedly more meaningful uses for public funds.

Additionally, the Commissioners need to consider whether it’s appropriate to use public funds to defend the private reputation of a Planning and Zoning Commissioner, particularly such injuries to her reputation are the result of her own malfeasance, misconduct, and blatant disregard for impartiality. The residents of Enfield work hard for their money and don’t need their tax dollars being spent on Quixotic judicial appeals. The Commissioners would do well to steer clear of attempts to enlist the public treasury in such a mission.

Rivalries, vendettas, and treachery over the quest for land, money, and power are not new to North Central Connecticut. In fact, they have a long history, as illustrated in the novel Parrish, by Mildred Savage, which was later turned into a movie starring Troy Donahue.  In Parrish, small tobacco farmer Sala Post competes with the high and mighty Judd Raike for control of the tobacco fields of North Central Connecticut. The novel is rife with back-handed dealing, driven by the greed, jealousy, and the desire for land. Fifty years after Parrish debuted on the silver screen, the same sentiments that motivated its characters– greed, jealousy, hatred and malice– are alive and well today. If there’s one lessson to take away from this dispute, it is this: Although our society has changed much since the days of Parrish– human nature has not changed at all. Mankind is still the fallen species it has been since the beginning of time. Justice demands that we exercise special caution to ensure that public offices do not fall into the hands of those who are unable to resist such temptations.

Last week, I posted documents relating to the Villages, LLC v. Enfield Planning and Zoning Commission case.

The judge’s finding in this case has become a lightning rod for discussion and has provoked a firestorm of lobbying. As Enfield’s leaders consider whether to spend our hard-earned tax dollars on an appeal, they would be well advised to consider the following points.

The are many cautionary lessons to be learned from the instant case. They include the following:

  • In the words of House MD, “”Everybody lies“. One truth that young attorneys quickly learn is that, “The clients lie.” In this case, Commissioner Lori Spazzarini Longhi claimed that she bore no animus to former Mayor Tallarita. Yet it was well-known within the community that this was far from true— indeed, it was a matter of public record that Commissioner Longhi engineered Tallarita’s removal from the Enfield Democrat Committee.
  • Likewise, Commissioner Longhi testified that she never visited Bryon Meade of the Hazardville Water Company regarding Villages’ application, claiming instead that she had visited about a different development. Yet the public record shows that the last land use application made by Commissioner Longhi and affiliated businesses was made in 2007, two years before Villages’ application was rejected. Simply put, there is no way that Mr. Meade could have confused the two incidents– particularly given his recollection on her inquiries on the topic of fire flows, a topic which figured greatly in the public hearing.
  • Early on in litigation, one of an attorney’s key responsibilities is to evaluate a case. By evaluating a case, an attorney explores the contours of its fact pattern and the relative strength and weakness of the legal doctrines he plans to assert.
  • One of the key tactical errors made by the Town Attorney was his under-evaluation of the case. One of the realities of municipal land-use regulation is that cases like Villages are a dime a dozen. The vast majority of them are meritless and lose at trial. Of course the danger here is complacency—to become so used to trying meritless land use cases that you are unprepared for the meritorious case.
  • It is clear from the trial transcript that the Town Attorney was unprepared for some of the evidence offered at trial—as you will see from the transcript, during the trial he attempted to call in the Town Manager to rebut testimony
    from the former Mayor.
  • Although the Town Attorney made some mistakes in trying to case, they are understandable. The vast majority of land use officials are regular, honest, hard-working citizens. Unfortunately, Enfield politics— especially on the Democratic side of the aisle—is a bloody and dirty business not suited for the faint of heart. Kevin Dineen is not an Enfield native; as such he would have no knowledge of the hidden web of relationships that undergird Enfield politics. Certainly, he would have no reason to believe that Commissioner Longhi was playing him. Indeed, Kevin Dineen’s chief mistake was that he took Commissioner Longhi at her word when she claimed she had no bias against Tallarita and never visited Bryon Meade.
  • Now that the judge’s ruling has been handed down— Commissioner Longhi is trying to make Dineen the scapegoat for the Town’s judicial loss. Sources have confirmed that Longhi has been contacting councilmen, lobbying their support for an appeal and the firing of Kevin Dineen.
  • Appellate litigation is an expensive and uncertain proposition. Only findings of law can be reviewed and reversed on appeal. Findings of fact cannot be reversed on appeal. There is good reason for this—the judge and/or jury who render judgment in a case are far-better positioned to weight the credibility of witnesses and testimony and determine which witnesses, testimony, and evidence are most credible. Incidentally, this is why judicial rulings will often reverse and remand to a lower court—because trial courts have exclusive authority to engage in fact finding.
  • What does this mean in the instant case? What it means is that the judge’s findings that Commissioner Longhi was biased, Commissioner Longhi engaged in improper ex parte communications, and and that Commissioner Longhi’s testimony was not credible are all set in stone. None of them can be reversed on appeal.
  • The only thing an appeal could change is the judge’s remedy—that the case be remanded to Planning and Zoning for further deliberations and that Commissioner Longhi be excluded from such deliberations. Responsible officials need to consider whether this is worth fighting over, particularly given the expiration of the waiting period following the rejection of Villages’ application.
  • One of the temptations that face public agencies in cases such as the instant case, is to spare no expense in pursuing an appeal; to pursue an appeal like Captain Ahab chasing the whale or Don Quixote charging at windmills. Our public officials need to keep in mind that the Town of Enfield is not IBM or GE. We don’t have hundreds of lawyers on staff and infinite resources to invest in litigation. Money spent on appellate litigation is money not spent on public services. Litigation is best settled quickly—not left to linger—let alone go to trial.
  • It appears that the Town would reap no significant benefit or advantage by prevailing on appeal. Our leaders must ask themselves— Is it really an appropriate use of taxpayer funds to spend $50,000-$100,000 fighting to preserve Commissioner Lori Spazzarini Longhi’s right to deliberate on Villages’ application, when she really had no business hearing it in the first place? Our hard earned tax dollars should be used to provide quality public services—not to defend the private reputation of a Planning and Zoning Commissioner.

Since its release on June 1, Judge Trial Referee Richard Rittenband’s ruling in the Villages case has rocked the Enfield political scene. Given the chatter, myths and rumors circulating about. I figured it would be in the public interest to post source documents relevant to the case so that Enfield politicos and concerned citizens alike could make informed judgments about the case.

Below you shall find links to the trial transcript, post-trial briefs, and judgment in the Villages case.

Attached to this article are the following documents.

Trial Transcript

Plaintiff’s Post-Trial Brief

Defendant’s Post-Trial Brief

Plaintiff’s Post-Trial Reply Brief

Defendant’s Post-Trial Reply Brief

Decision of Judge Trial Referee Richard Rittenband

The emperor has no clothes.
–Hans Christian Andersen

In the past week, Connecticut newspapers have published two stories about the governor’s liquor reform bill that are worthy of comment.

The first of these involves Edith Prague, a State Senator from Norwich who departed Planet Earth many years ago. Senator Prague is incensed that the governor’s liquor reform bill includes a provision expanding sales of beer in convenience stores. According to Prague’s testimony and a Hartford Courant article on the issue, Prague believes that the expansion of convenience store beer sales will make people more likely to drink and drive– that we will see additional instances in which people stop into a convnience store for a single and utilize Connecticut’s permissive open container laws to drink and drive. Of course, Prague fails to forget that those who wish to engage in such behavior can just as easily buy singles at a package store.

Earth to Edith– your coming liquor apocalypse had come and gone in Massachusetts without inflicting serious harm on the general population! Take a look at these photos of the many cases and coolers of beer available for sale at the Pride gas station located on Wilbraham Road in Springfield, near the campus of Western New England University.

I frequent this Pride station out of convenience. In all the years I’ve been filling-up my car I’ve never seen a clerk sell to a minor or a person who was visible intoxicated.

Prague’s reaction to the extension of convenience store beer sales highlights the extent to which most legislators are unaware of liquor market conditions in other states, as compared to Connecticut. If Prague were to visit a state like Missouri and see the structure of the liquor markets, she would have a heart attack. In Missouri, consumers can buy beer, wine and spirits in a grocery store 24/7. There still were many package stores- but they specialized in offering a variety of products, rather than offering deep discounts on the most profitable products. The current liquor regulatory schema is antiquated and unnecessary. We need to end the price-fixing and rent seeking behaviors that have made our liquor laws such a mess. No other product enjoys the kind of price-based regulatory protection afforded to liquor retailers and wholesalers. The public accrues no benefit from the state-sponsorerd price-fixing– just the retailers and wholesalers. It is unfair to the consumers to expect us to subsidize the businesses of wholesalers and package store owners. The time has come for the restoration of consumer choice and competitive pricing in the liquor market. The time is long overdue for Connecticut to end its “nanny state” approach to regulating the sale of beer, wine, and spirits.

———————————————————————————————————

And a fact check:

In a recent article, “Trouble on A Sea of Suds“, The CT Post’s Ken Dixon repeats Caroll Hughes frequent claim that his organization, the Connecticut Package Stores Association represents about 900 stores. (more…)

There are three kinds of lies: lies, damned lies, and statistics.
–Benjamin Disraeli

This afternoon, The Hartford Courant published an article by reporter William Weir about a CDC study that concluded eliminating Sunday liquor sales bans results in additional traffic fatalaties and deaths and recommended not eliminating Sunday alcohol sales bans.

In an apparent attempt to wrest the title of “Laziest Courant Journalist” from desk-jockey Rick Green, Weir’s initial article did little more than summarize and republish the conclusions of the 2010 CDC study. The article failed to analyze the methodology employed by the CDC and included no critical comments from proponent and opponents of Sunday sales, a sad reflection of the deterioration of Courant journalism.

Subsequent versions of the story were later updated to include comments from opponents / proponents of Sunday sales and alternative studies– no doubt following complaints about the one-sided nature of the story.

I have to say that I find it rather strange that The Hartford Courant finds this 2010 CDC study to be suddenly newsworthy. Inside sources have informed me that there is more to this story than meets the eye– that Weir, who is The Courant’s health reporter, got played by CPSA Executive Director Carroll Hughes. Specifically, these sources inform me that Hughes passed the study off to Weir as ‘trustworthy government statistics’, about which Weir proceeded to write a one-sided uncritical piece, not realizing the extent to which he was stepping in the cow-poke.

There are numerous problems with the CDC study, ranging from its methodology to its conclusions. It makes no sense to apply it to the issue at hand in Connecticut– the legalization of off-premise Sunday liquor sales.

A close examination of the CDC study shows that CDC researchers conflated statistics for off-premise sales and on-premise sales. Why is this such a big deal? Because we all know that on-premise sales at bars, taverns, and restaurants are far more likely to result in increased traffic accidents and fatalaties.

An additional problem with the CDC study is that of the many prior studies examined by the CDC, only two charted traffic accidents and fatalaties following the repeal of off-premise Sunday liquor sales in a U.S. state. Both studied traffic statistics following the legalization of off-premise Sunday sales in New Mexico. The problem with this is that for a variety of reasons, New Mexico is a statistical outlier. The legalization of Sunday sales in New Mexico coincided with an increase in the state speed limit. Thus, it is difficult to determine the extent to which the increase in the speed limit caused accidents. What we do know is that in the time-period examined by the studies, the number of alcohol-related fatal crashes increased 3% while the number of non-alcohol related fatal crashes increased 12%.

Also it is worth noting that the lions share of the surveys examined by the CDC involved the elimination of Sunday / Saturday sales bans in foreign countries– including Australia, Scotland, Norway, and Sweden. Trying to compare Connecticut to New Mexico, let alone a bunch of foreign countries is not an apples-to-apples comparison. With all due respect to the folks in New Mexico, we all know that there exist a very different set of social attitudes and mores towards drinking in that state. I’m fairly certain that its drunk driving laws are not nearly as restrictive and punitive as Connecticut’s. Truly it is a stretch to impute that legalizing Sunday sales in Connecticut will increase traffic incidents here, just because it did in New Mexico.

The bottom line here is that if you want to assert that legalizing Sunday liquor sales in Connecticut will result in increased traffic accidents and fatalities, you need to draw a comparison to other similarly situated states, such as Massachusetts, Rhode Island, and Deleware. Nowhere in that study does it illustrate a correlation between increased sales and rising social ills in similar states. I would be interested in seeing such data.

Last, if you buy into the reasoning of the CDC researchers, you have to ask the question, “Why stop at Sunday?” If closing package stores will reduce alcohol-related traffic accidents and fatalaties, why not close package stores on Friday and Saturday? I think the answer is quite simple: that decisions to purchase and consume liquor are best entrusted to responsible adults, not determined by an antiquated regulatory scheme.

Over at the Wilton Patch, reporter Cathryn J. Prince interviews UConn economist Fred Carstesen about Sunday Liquor Sales. Carstesen tells Prince, “Show me a good study with comprehensive data that analyzes cross border purchases, revenue gain… otherwise I’m reluctant to go with Sunday sales.”

The only problem with this reasoning is that such a study was conducted in 2009, by the Legislature’s Program Review and Investigations Committee. It investigated the impact of Sunday sales on Massachusetts, New York, Colorado and other states. It is available for review here. The report concluded:

In Connecticut’s case, since the state is small, with cross-border alcohol availability on Sunday appearing to impact sales along the Massachusetts border, the repeal of the ban may lessen the accompanying revenue loss to the state. In fact, if all stores decide to open on Sunday, this recommendation should result in increased revenue to the state of $7.5 to $8 million in the year immediately following the lift of the ban. Given the economic conditions of the state it seems prudent for the state to allow Sunday alcohol sales and offer package stores on the borders to more effectively compete.

In light of the economic data presented in the report— that sales and tax revenues increased in New York, Massachusetts, and Colorado when Sunday sales were legalized, it seems hard to believe that they won’t increase in Connecticut.

One of the other key conclusions of the report was that per-capita spending on liquor in Massachusetts border towns was significantly lower than in towns on the New York and Rhode Island borders and towns in the interior of the state. This is based on data from Carstesen’s own State Data Center. (See Table VII-11).

This data matches what you see on the ground. If you speak with local package store owners in Enfield, they will tell you that the business changed after Massachusetts legalized Sunday sales. Consumers stopped stocking up for Sunday and instead if they needed a bottle will buy one in Massachusetts. If you don’t believe me, I challenge you to visit the package stores on the Mass border on Super Bowl Sunday and see what kind of business they get. This is revenue lost to Connecticut retailers and the State of Connecticut.

Nonetheless, Carstesen’s comments raise serious questions. Did Carstesen speak to the press without checking the facts and reading the Program Review and Investigations Report? Or is he a tool of Caroll Hughes and the Connecticut Package Stores Association?

Contact us: carpetcitychronicle@gmail.com.

Last week, Enfield teachers were notified as to whether they would be laid off or recalled. It is anticipated that 26 teachers will be laid off under the current budget. Undoubtedly, the current budget was a difficult budget, but it reflects the tough choices that families in town are making to survive.

I have hard from friends of mine who are Enfield teachers. They know full well that the only way to save jobs at this point is to offer concessions (contractual give-backs). Unfortunately, the so-called “leaders” of the Enfield Teachers’ Association win will not even allow their membership to vote on any kind of concessions. The teachers facing layoffs have been abandoned by their union, which has sold them down the river for the sake of increased pay and benefits. That the ETA would so obstinately persist in this position is offensive to basic notions of justice and common sense. Untenured and new teachers pay the same dues that all the other teachers are being deprived of for honest representation by their union.

There is one “Hail Mary Pass” left in the rules, that teachers could use to save their jobs. I have been told that in the union’s by-laws, that if 10% of their membership signs a petition, they can force their union to have the entire membership vote on concessions.

Is the union hierarchy an entity unto itself or do they represent the teachers of Enfield? Right now, they appear poised to accept scores of layoffs. Of course the teachers most hurt by this policy are the newest hires, among whom young teachers predominate. Many of them are friends and former classmates of mine. It makes me sick to my stomach to think that their union bosses could be so blinded by greed that they won’t let union members vote on a concession to save jobs. Where is the loyalty? Where is the spirit of union brotherhood?

If I were among the 80+ teachers who had their names read off at the March 23 B.O.E. meeting, I would certainly try to get my fellow colleagues to sign a petition to help save jobs. This would be good for teachers, for kids, and for the community. It would behoove the teachers and the union to see the merits of give-backs to help preserve the jobs. A step freeze, a percentage freeze and some furlough days for next year would go a long way in holding down class-sizes.. Plus, many teachers would keep their jobs. Teachers, read the by-laws in your contract to do what is good for all.

Private businesses have already implemented massive lay-offs and pay-cuts. As a concerned citizen— one whose views are shared by many— I am asking the teachers to help. Massive layoffs will help no one.

For more info on the Enfield Teachers’ Association’s refusal to offer concessions, see these earlier posts:
http://carpetcity.wordpress.com/2009/04/15/greed-sacrifice/
http://carpetcity.wordpress.com/2009/03/18/eta-concession-rejection-greed/

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