Town Officials Taking Metro Center Mess Out of Public Eye

Town officials plan to take discussions about the Fairfield Metro Center behind closed doors.

One of 58 questions on the Metro Center posed to First Selectman Michael Tetreau by members of the town's Board of Finance and Representative Town Meeting was:

"Please include a legal opinion from the Town Attorney on the soil issue to be discussed in a BOF (Board of Finance) Private Executive Session."

Tetreau's reply, e-mailed to town officials Friday, was: "I believe this would be discussed in Private Executive session."

The biggest driver of an estimated $2.4 million to $6.4 million deficit on the Metro Center is excess contaminated soil on the site. Tetreau has said the cost to cart all of that soil off-site could total $2 million ($0 was budgeted) and additional projected costs in the deficit include:

* Groundwater treatment - an extra $1.9 million (only $100,000 was budgeted);

* Disposal of PCBs - an extra $600,000 (only $400,000 was budgeted);

* Clean fill - an extra $500,000 (only $100,000 was budgeted);

* Stabilization of soil - $500,000 ($0 was budgeted);

* Earth excavation - an extra $500,000 (only $700,000 was budgeted.)

The state Freedom of Information Act allows town boards to meet behind closed doors for:

"B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled;"

The only publicly-known pending litigation on the Metro Center right now is a lawsuit filed by Concerned Citizens against Gary Weddle, the Metro Center's wetlands compliance officer, that argues Weddle shouldn't be on the job because he isn't under Town Conservation Director Thomas Steinke's general supervision.

Weddle is not a member of the Board of FInance and is not a member of a town board or commission, though he was formerly chairman of the town's Inland Wetlands Commission.

But the state FOI Act defines a pending claim, among other things, as a "written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted."

When former First Selectman Ken Flatto removed Town Conservation Director Thomas Steinke and Steinke's staff from environmental oversight of the Metro Center in December 2007, town officials justified closed-door sessions by saying Blackrock Realty had threatened to sue the town in writing, claiming Steinke was holding up the project. Blackrock never filed a lawsuit.

But the definition of pending litigation is even looser than a written notice in the FOI Act.

One of the FOI Act's three definitions for pending litigation is:

"(T)he agency's consideration of action to enforce or implement legal relief or a legal right."

Several town officials have said the secrecy surrounding the April 2010 agreement on the Metro Center may have harmed the town in that people with knowledge of contracts could have improved the agreement before Flatto signed it or at least limited or made known the exposure to taxpayers.

The April 2010 agreement made the town liable for cost overruns on the Metro Center (an attorney believes Blackrock Realty, LLC may also be liable for cost overruns) and all but eliminated $6 million of revenue that was to come to the town from parking fees at the upcoming train station.

Tetreau, in another answer e-mailed Friday to town officials, indicated an analysis of the April 2010 agreement was never done by the town before former Flatto signed it.

"I believe Mr. Flatto answered this in his comments before the Board of Finance," Tetreau's e-mailed reply says. "I believe he said no separate financial analysis was done by the Town."

Tetreau referred town officials to minutes of the Board of Finance's June 29 meeting, which Tetreau quoted as:

"Mr. Flatto stated that the State required that an analysis be done and Mr. Flatto stated that he checked the analysis himself with Town Attorney Saxl. Mr. Flatto also reported that the State told him not to discuss the details with anyone including the CFO (Chief Fiscal Officer.) Mr. Flatto stated that the State requested that the First Selectman and the Town Attorney be the only Town employees to see and know the details of the revised contract. Mr. Flatto also stated that Town Attorney Saxl advised him that attorney/client privilege covered the State’s request."

The April 2010 agreement became necessary when Blackrock Realty ran into financial problems and was being foreclosed on by its lender, TD Bank, N.A. The state kicked in $19.4 million of new money to get the project started again in April 2010, and Blackrock Realty put in $5.2 million ($843,564 of which was in a performance bond held by the town's Conservation Commission.)

In other Metro Center news:

* Another question posed to Tetreau asked what would happen if town bodies refused to approve more money for the Metro Center, which Tetreau stated June 27 was running a projected $2.4 million to $6.4 million deficit.

"If there is no additional funding provided, it is projected now that work on the project would stop in late August or early September," Tetreau said in an e-mailed reply to town officials. "We would then be subject to the termination clauses in several contracts."

In a related question, Tetreau answered, "Not completing the project would incur significant costs to the town. We are reviewing the contract termination clauses now."

The April 2010 agreement signed by Flatto and the state Department of Transportation - and approved only by Flatto and Selectman Sherri Steeneck - says, under the heading "THE MUNICIPALITY SHALL:"

"(15) Reimburse the State for all State-Town Project related expenditures incurred in the event the Municipality cancels the State-Town Project without 'good cause.' However, the Municipality may request cancellation of the State-Town Project, and if determined by the State to be justifiable and with 'good cause', State participation will be provided up to the percentage of acceptable work completed to the approved date of cancellation, subject to Article (23) of this Agreement. A shift in municipal priorities, or insufficient municipal funding, is considered to be within the control of the Municipality and will not be considered as 'good cause.' "

* Town officials have learned of another escrow account that has funds from Blackrock Realty, LLC. Tetreau said he learned of the additional escrow account on Friday.

Quoting a message from Town Fiscal Officer Paul Hiller, Tetreau's e-mailed reply says:

"You should be aware that the Town of Fairfield has held since March 2008 funds which satisfy a Stewardship Easement on the land owned by Black Rock Realty. As I understand this matter, these funds were required by the Conservation Commission as part of the approval process and are to be held in perpetuity by the Town as part of the Long Term Conservation Area Management Plan.

The funds are currently on deposit at Peoples United Bank in a Municipal Money Market Account, held in the name of the Town of Fairfield, which has a balance as of June 30, 2011 of $45,717.64."

* The separate agreement by which Flatto essentially gave up $6 million in reimbursement to the town was not approved by anyone.

That April 2010 agreement allows the state to take principal payments on its $19.4 million bonded contribution out of parking permit revenue at the upcoming train station. Before, the state was only allowed to take operating and maintenance expenses out of parking permit revenue and the town was then to be reimbursed $300,000 a year for 20 years, until its original $6 million investment in the project was fully paid off.

The Fairfield Metro Center is a joint project by the DOT, town and Blackrock Realty, LLC that includes construction of the town's third train station, about 1,400 parking spaces for rail commuters and 930,000 square feet of commercial development, mostly office buildings and a hotel, on 35.5 acres at 21 Black Rock Turnpike (across from the movie theaters.)

The projected $2.4 million to $6.4 million deficit is on the construction of public portions of the project. Blackrock Realty has to finance the commercial development.