Community Corner

Metro Center Plaintiffs Argue No Harm if Stay on Judge's Order is Terminated

But Defense Says Plaintiffs Failed to Show Harm Would Result from Leaving Stay in Place

The plaintiffs and defense in the Fairfield Metro Center litigation agree in final documents filed in Bridgeport Superior Court that harm has to be shown to terminate an "automatic stay of execution" on Bridgeport Superior Court Judge Richard Arnold's July 6 ruling.

They just disagree over who has to show it.

George R. Bisacca, the plaintiff's attorney, argued in a post-hearing memorandum that the defense needed to show harm would result if Arnold's July 6 order removing Gary Weddle as the Metro Center's wetlands compliance officer took effect immediately.

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But Russell A. Green, an attorney for the defense, said in a phone interview Wednesday night that Bisacca needed to show harm if Arnold's order did not immediately take effect and that Bisacca didn't meet that burden in three court hearings, the last of which ended last week.

The court hearings centered on Bisacca's motion to terminate an "automatic stay" on Arnold's July 6 ruling, which came with Weddle's appeal of the ruling. Bisacca wanted the stay terminated so Weddle would be immediately removed.

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Bisacca, in his 20-page post-hearing memorandum, said Griffin Hospital v. Commission on Hospitals and Health Care was "the landmark case" for determining if a stay should be terminated while an appeal is pending. He wrote that the state Supreme Court "gave no indication that the party opposing the stay need show that it would suffer irreparable harm if the stay remained in place."

"If the plaintiffs have obtained a judgment in the case and there would be no irreparable harm to the defendant by the immediate implementation of that judgment, the plaintiffs should not be forced to wait for the disposition of the defendant's appeal when the delay caused thereby could nullify the effect of that judgment," Bisacca wrote. "The facts in this case amply demonstrate that there would be no irreparable harm to Weddle if this stay is terminated and he is immediately removed as Wetlands Compliance Officer on the train station project."

Weddle was hired by the town's Inland Wetlands Commission to be the Metro Center's wetlands compliance officer in March 2008 after First Selectman Ken Flatto removed the town's Conservation Department from its oversight role on the project in December 2007. Flatto removed the department after Blackrock Realty, LLC, the private developer on the Metro Center project, complained that Town Conservation Director Thomas Steinke and his staff were holding up the project and threatened to sue the town if they weren't removed.

The Metro Center, a massive development that is the result of a tri-party agreement 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, if fully built out, on 35.5 acres at 21 Black Rock Turnpike. The property includes from 60,000 to 100,000 cubic yards of contaminated soil that would be pushed around and then covered with a tarp, clean soil and asphalt, but soil containing PCBs was to be removed.

After a roughly two-year hiatus, work on public parts of the project resumed July 23, and Weddle testified in court on Aug. 11 that he had yet to visit the site. He also testified that he didn't attend a pre-construction meeting because no one asked him to. Bisacca contends in the memorandum that the Inland Wetlands Commission's permit required the wetlands compliance officer to attend that meeting.

Attorneys for the defendants, who include Weddle and the Inland Wetlands Commission as an intervening party, argued in court hearings that Redniss & Mead, a consultant hired by the commission, attended the pre-construction meeting and environmental consultants monitored the property in Weddle's absence. But Bisacca's memorandum said Steinke testified that it was "of the utmost importance for a Wetlands Compliance Officer to be in attendance at the preconstruction meeting because it was necessary for him to determine if the contractor's work plans were in compliance with the conditions of the permit, and for him to visit the site to check on ground conditions before any disturbance took place."

Bisacca's memorandum states that Weddle, a full-time professor at Fairfield University and former chairman of the Inland Wetlands Commission, hadn't accepted pay as wetlands compliance officer and had no education in environmental studies or previous experience as a wetlands compliance officer.

"Based on all of his own testimony, it is clear that Weddle does not take his responsibilities as Wetlands Compliance Officer on the Project as seriously as would a qualified, paid Wetlands Compliance Officer on the same Project," Bisacca wrote. "In short, the defendant has offered no evidence whatsoever that he would suffer irreparable harm if the court's order were immediately implemented."

But Green, an attorney for the Inland Wetlands Commission, said Wednesday night that it was up to Bisacca to show there would be harm, or the likelihood of harm, if Weddle remained as wetlands compliance officer and that Bisacca hadn't done that.

"It's our position that they didn't show that. They put on six witnesses, none of whom testified there was imminent harm. They had the burden of proof to show there was an imminent harm," Green said.

Green disputed Bisacca's belief that the defense had to show irreparable harm if the stay were terminated. He said Appellate Court rules allow an automatic stay of execution on a trial court judge's ruling. "If you're going to depart from that, you have to have a good reason to do so. Otherwise, you could thwart the Appellate review," Green said. "It's really going to undermine your appellate rights."

Green said Bisacca was trying to put the burden of proving harm on the defendants, which he said was not where it belonged.

Neither Bisacca nor Green wanted to speculate on what Arnold might do, but Arnold, in the last day of testimony, repeatedly asked Bisacca to demonstrate the harm, or likelihood of harm, to the environment in allowing Weddle to remain as wetlands compliance officer.

Arnold's ruling on July 6 said the Inland Wetlands Commission illegally hired Weddle as wetlands complaince officer because he wasn't under Steinke's general supervision. The Town Charter, Arnold's ruling says, requires the wetlands complaince officer and consultants hired by the commission to be under the town Conservation Director's general supervision. The commission's hiring of Weddle in March 2008 followed Flatto's hiring of him two months earlier in essentially the same role, though Weddle wasn't called a "wetlands complaince officer" at the time.

After Arnold's ruling, the commission voted to give Steinke "general supervision" over Weddle, but Saxl and Flatto said after a court hearing that the general supervision applied to an additional job that Weddle hadn't accepted.

Bisacca contends in his memorandum that the commission's hiring of Redniss & Mead was "no less illegal" than its hiring of Weddle since Redniss & Mead also isn't under Steinke's general supervision.

"To continue allowing the illegally appointed Weddle to be in a supervisory position over the illegally appointed Redniss & Mead when he has no competence to verify the reports of Redniss & Mead, can only compound the clear and present danger to the interests of the plaintiffs and the public," Bisacca wrote.

Bisacca also contends in the memorandum that town officials' violations of the Town Charter caused "real and serious harm to the public interest."


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