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.