FOI Complaint Lodged in Pond View Fight

Pond View LLC's plans to build a shopping center at 127 Main Street sparked environmental concerns from neighbors of the former tract of farmland 12 years ago. Planning & Zoning Commission decisions have since been challenged by both sides at different times and a legal battle continues to rage on.

The Connecticut Supreme Court had ruled in favor of a zone change for Pond View and neighbors won a challenge to overturn a P&Z approval of the special permit application that followed. The developer is currently appealing that decision.

As the case winds through the court system, two residents are questioning the conduct of former Town Attorney Fred Martin and his successor John Fracassini. Joseph Sullivan and Steve Ballok are accusing the attorneys of backing Pond View LLC without direction from their client: The Planning & Zoning Commission.

"They certainly seem to be highly favoring the developer," said Sullivan, a former P&Z Commission alternate who is assisting the neighbors. "These folks are doing actions far above and beyond favoring what the developer wants done."

Martin strongly denied Sullivan's accusation and pointed out that he had represented the town in defending a Planning & Zoning Commission denial of Pond View's zone change application early on — siding with the neighbors.

"The only thing I find comical is the innuendo that somehow the town is in the back pocket of the developer, when the town defended the neighbors all the way up to the Supreme Court until it was unsuccessful," Martin said.

Fracassini declined to comment on Sullivan's charges of bias and shared Martin's position on their defending the Planning & Zoning Commission's 4-1 decision in favor of a special exception permit for Pond View LLC, which is currently being contested in court.

Fracassini and Martin have both said they defended the Planning & Zoning Commission's position in every case as they are required to by Town Charter. Sullivan and Ballok contend the attorneys are hiding behind the charter, claiming they had failed to consult with the P&Z Commission before taking actions in court.

In this case, the developer is Jay Keillor of Pond View LLC and the neighbors are Jeffrey and Hannah Zimnoch, Elizabeth Murphy and Sally Lundy.

Sullivan maintains that the town attorneys have been paid "tens of thousands of dollars" in legal fees to handle the Pond View case and expressed his belief that taxpayers should know the exact amount.

In a March 16 letter responding to Sullivan's request, First Selectman Steve Vavrek agreed to turn over Fracassini's billing records, but added, "I don't believe that we can comply with your request as stated since Attorney Martin would not have had any further involvement after November, 2009." Fracassini was appointed town attorney on Dec. 8,2009.

Sullivan responded by filing a Freedom of Information Act request for Fred Martin's billing records for Pond View from 2004 to Dec. 8,2009. He served it by hand during Monday night's Town Council meeting. (A pdf file is attached)

"If the town found out how much has been paid, people would be upset," Sullivan said.

'Slow Walking' Information

The Planning & Zoning Commission recently requested court transcripts for Pond View and Chairman Richard Zini said the matter will be handled in an executive session.

Ballok said it took Fracassini longer than necessary to get the court documents to the commission and accused the town of "slow walking" information to buy the developer time to win his appeal.

Of Fracassini's actions on the litigation, Sullivan said, "If the Planning & Zoning Commission says, 'Keep doing what you're doing,' I'll be fine with that. I would have no problem."

On Monday night, Fracassini declined further comment on the case.

The Zone Change

In 2004, the P&Z Commission had voted in favor of Pond View's application for a zone change by a 3-2 vote, but because the neighbors had obtained intervenor status, a super majority was required and the zone change was denied.

The developer appealed the decision and then-Town Attorney Fred Martin sided with the neighbors, defending the commission's decision all the way to the Connecticut Supreme Court.

The court ruled in the developer's favor and Martin asked the P&Z if it wanted him to appeal. Sullivan recalled the discussion.

"I said, 'If you do that, what are the chances of the developer overturning the decision?' He said we would most probably lose," Sullivan said of Martin. "I said, 'So you're saying it's a waste of money to continue.' I made a motion that he stop his legal action and support the original decision. I regret my motion now."

Martin criticized Sullivan for violating state law by "divulging his recollection of the contents of an executive session."

"Mr. Sullivan occasionally tells the truth, but it's a long time since that's ever happened," Martin said. "When the developer successfully overturned that decision, in consultation with the Planning & Zoning Commission, I was instructed not to participate in the appeal except to the extent of writing a brief on behalf of the neighbors, which I did."

The Special Permit

After the court overturned the P&Z denial of the zone change, Pond View LLC went forward with its special exception permit application and the commission approved it 4-1.

Both Sullivan and Ballok criticized Martin's signing the developer's petition to appeal, saying he had failed to consult with the P&Z Commission first.

Martin says there is a difference between joining a petition to appeal and joining an actual appeal. Before an appeal can be heard, a petition must be certified by the court and there is a time limit for one to be filed, according to Martin.

"We have to either oppose a petition for certification or sign onto it," he said. "The developer filed it. The town signed onto it."

If he did not sign the petition, Martin said the town would be in opposition of its own Planning & Zoning Commission. "The town attorney has to defend the actions of the Planning & Zoning Commission," he said.

Sullivan said, "He can go before Planning & Zoning and say, 'Do you want me to do this or not?' instead of signing documents and moving forward with the defense. He's only obligated if the P&Z gives him direction."

Martin said he consulted with the commission throughout the entire process, but to come before the commission everytime there was a petition for an appeal would be "absurd." Once the court approved the petition, Martin said the town did not join the developer on the appeal.