Judge and Plaintiffs' Attorney Challenge Each Other at End of Fairfield Metro Center Hearing

Testimony in a case involving the Fairfield Metro Center ended Tuesday afternoon with the judge and plaintiffs' attorney challenging each other over whether harm would result if the judge's July 6 order were not enforced immediately.

George Bisacca, the attorney for plaintiffs who want Gary Weddle immediately removed as the town's wetlands compliance officer on the Metro Center, argued that Fairfield residents were harmed by town officials ignoring the Town Charter, which was enacted by residents in a vote.

The Town Charter, according to Bridgeport Superior Court Judge Richard Arnold's July 6 ruling, says Weddle and consultants retained by the Inland Wetlands Commission have to be under the general supervision of Town Conservation Director Thomas Steinke. Arnold's order on July 6 was that Weddle be removed as wetlands compliance officer.

Weddle has appealed Arnold's ruling, and Tuesday's court hearing was on Bisacca's motion to terminate the "automatic stay of execution" that came with Weddle's appeal.

"You can't ask me to sit and review my own ruling," Arnold said to Bisacca. "I don't have that authority."

Bisacca replied, "The will of the people is being subverted. That is a real harm to the people of the town."

Arnold said the town's Board of Selectmen and Inland Wetlands Commission were representatives of the people and that residents had recourse at the ballot box and in court if they felt their will was being subverted.

"What's going on at the site? What's likely to go on at the site? That's all I'm considering. I'm not at all considering whether the will of the people has been frustrated," Arnold said of the specific question under review Tuesday.

Bisacca then said Weddle and consultants hired by the Inland Wetlands Commission to oversee remediation of contaminated soil on the 35.5-acre Metro Center property were independent contractors and not employees of the town.

"If they make mistakes, the Conservation Department is not allowed to find, the people of Fairfield may suffer for generations to come," Bisacca said to Arnold. "By the time these appeals are finished, the job will be finished."

But Arnold said Bisacca was asking him to "make a leap that everyone there is in the tank and have no consideration for their professional responsibilities, that their level of expertise is less than that of Steinke's."

Charles W. Fleischmann, Weddle's attorney, said there was "not a shred of evidence" that harm would result from having Weddle remain as the Metro Center's wetlands compliance officer while the case between Bisacca's clients and Weddle was under appeal.

"The burden is on the plaintiffs," said David Slossberg, an attorney for the Inland Wetlands Commission. "There's not one scintilla of evidence that any harm would occur" if the automatic stay remained in place.

First Selectman Ken Flatto went so far as to testify that any consultant hired by the Inland Wetlands Commission could be considered Conservation Department staff. "Conservation Department staff is anyone the commission employs," he said, adding that Weddle and Redniss & Mead, a site monitor on the project, "are part of our Conservation Department because they were hired by the [Inland Wetlands Commission.]"

Flatto had removed Steinke and his staff from their oversight role on the Fairfield Metro Center in December 2007 after Blackrock Realty, LLC, a private developer on the site, complained that Steinke and his staff were holding up the project and threatened to sue the town.

Flatto later said the Board of Selectmen voted to strip Steinke of town-provided legal coverage if he got involved with the Metro Center and was sued by Blackrock Realty.

The Inland Wetlands Commission, whose members are appointed by Flatto, voted July 15 to give Steinke general supervision over Weddle - but in an additional job that Weddle has yet to accept.

Bisacca, who represents seven residents known as "Concerned Citizens," prevailed July 6 in litigation to remove Weddle from his position as wetlands compliance officer because Weddle wasn't under Steinke's supervision.

But Weddle appealed Arnold's July 6 ruling, and an automatic stay of execution on Arnold's ruling came with that appeal.

Arnold said Tuesday that his order, "in the boundaries of this action," does not reinstate Steinke to his position on the Metro Center; it only removes Weddle. While Arnold's ruling says the wetlands compliance officer and consultants hired by the Inland Wetlands Commission have to be under the Conservation Director's general supervision, his specific order is only that Weddle, who isn't under Steinke's supervision, be removed.

During Tuesday's testimony, Bisacca questioned whether conditions of the Inland Wetlands Commission's permit on the Metro Center had been violated because Steinke wasn't notified of a pre-construction meeting in July, which the permit required. Weddle previously testified that he didn't attend that meeting because no one asked him to.

"Do you believe you had the authority to act as the Conservation Department staff at the pre-construction meeting?" Bisacca asked Craig Flaherty of Redniss & Mead.

Flaherty responded that he believed he had the authority to act on behalf of the Inland Wetlands Commission.

Bisacca asked if Flaherty believes the commission had the authority to allow him to act as Conservation Department staff.

"I don't know," Flaherty replied.

"Is there anything in the permit that says Conservation Department staff doesn't have to be involved, that a site monitor can take their place?"

"Not that I know of," Flaherty said.

Bisacca then said failure to comply with conditions of the permit was sufficient cause to invalidate the permit, but Flaherty said, "As far as I'm concerned, the fact that we're acting on behalf of the [Inland Wetlands Commission] is sufficient."

Arnold indicated that Bisacca's questioning was off-track. "I've been waiting to hear what problems on the site would cause me to terminate the stay...Focus, focus, focus...," he said.

"I'm interested in what's going on at the site, not interpreting the power structure of how it stands today. The public interest is what I'm concerned with, and public interest, in my book, is, 'Is there harm to the environment going on because Mr. Steinke is not there?" Arnold said, adding that terminating a stay in a civil action was very unusual. "I want to know what problems are occurring and likely to occur with Mr. Weddle not being under the supervision of Mr. Steinke - not 'may occur...' You can't imply great harm. You've got to give me evidence of harm."

Arnold added that whether the town was in compliance with the Inland Wetlands Commission's permit wasn't the subject of Tuesday's hearing.

Arnold said he would accept supplemental memorandums of law over the next week.

The Fairfield Metro Center, a partnership among the town, state Department of Transportation and Blackrock Realty, would include the town's third train station, from 1,300 to 1,500 parking spaces for rail commuters and nearly 1 million square feet of commercial development on 35.5 acres at 21 Black Rock Turnpike.