Valley Hous. LP v. City of Derby

• Decision Date: 29 July 2011
• Docket Number: No. 06–cv–1319 (TLM).,06–cv–1319 (TLM).
• Citation: 802 F.Supp.2d 359
• Parties: VALLEY HOUSING LP et al., Plaintiffs, v. CITY OF DERBY et al., Defendants.
• Court: U.S. District Court — District of Connecticut

802 F.Supp.2d 359

VALLEY HOUSING LP et al., Plaintiffs,

v.CITY OF DERBY et al., Defendants.

No. 06–cv–1319 (TLM).

United States District Court, D. Connecticut.

July 29, 2011.

Amy Eppler–Epstein, James Bhandary–Alexander, Shelley A. White, New Haven Legal Assistance Assoc. Inc., David N. Rosen, David N. Rosen & Associates, P.C., New Haven, CT, for Plaintiffs.

Bethany Bircher Karas, John A. Blazi, Law Offices of John A. Blazi, Waterbury, CT, Richard J. Buturla, Berchem, Moses & Devlin, P.C., Milford, CT, for Defendants.

RULING

TUCKER L. MELANÇON, District Judge.I. History of the Proceeding from the date trial commenced on July 26, 2010

This matter was tried to the Court on July 26–29, August 10–12, September 23, 2010 and April 12–15, 18–21, 25–28, May 2, 3, and 5, with testimony concluding on May 6, 2011. At the close of trial, the Court advised the attorneys for the parties that it would issue either an oral or written ruling as soon as practicably possible after receipt of the attorneys' post-trial filings that they had previously been ordered to file by the Court. The parties originally estimated the case would take no more than 5 days to try. ( Rec. Doc. 152 ).

Upon defendants filing a motion to recuse the undersigned on October 19, 2010 ( Rec. Doc. 212 ), before ruling on the motion, the Court chose to review the transcripts of the trial to the time of the filing of defendants' motion and continued the trial without date. The proceeding was recorded by an ECRO system and the final transcript of the initial portion of the trial was transcribed and filed via ECF on December 14, 2010 ( Rec. Doc. 221 ). The Court issued its oral reasons denying the motion on January 7, 2011 ( Rec. Docs. 223 and 224 ). Defendants' motion ( Rec. Doc. 212 ), plaintiffs' opposition ( Rec. Doc. 213 ) and the Court's ruling speak for themselves.

Trial resumed on April 12, 2011. After inquiry, the Court was informed by Chief District Judge Alvin W. Thompson that it was not an unusual practice in the District, to avoid the delay occasioned in a lengthy trial and to have the transcripts of a proceeding available to the Court and to the attorneys, for the Court to order the parties to obtain the ECRO transcripts as the trial progressed, sharing the costs. The cost of the transcripts are then taxed as costs of the proceeding and the non-prevailing party ultimately cast with the costs of the proceeding. On April 12, 2011, the Court entered such an order verbally ( Trial Tr., 12–14, April 12, 2011, Rec. Doc. 251 ) and on May 6, 2011 the Court set a posttrial briefing schedule ( Rec. Doc. 253 ).

II. Duty of the trial Judge in a proceeding tried to the Court

In any bench trial, the trial judge, as the finder of fact, has to evaluate the credibility of the witnesses that testify, based on the witnesses' demeanor, any previous inconsistent statements made by a witness prior to and during the witness's trial testimony, the witness's explanation for any such inconsistent statements as well as the documentary evidence in the record. The United States Supreme Court has stated that “[t]rial judges have the unique opportunity to consider the evidence in the living courtroom context, while appellate judges see only the cold paper record.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 438, 116 S.Ct. 2211, 2225, 135 L.Ed.2d 659 (1996) (citations omitted). The United States Court of Appeals for the Second Circuit has observed that “the full flavor of a hearing cannot be sensed from the sterile sheets of a transcript.” ABC, Inc. v. Stewart, 360 F.3d 90, 100 (2d Cir.2004) (quoting Soc'y of Prof'l Journalists v. U.S. Sec'y of Labor, 616 F.Supp. 569, 578 (D.Utah 1985)). That is certainly the trial judge's view of the testimony given and the documents on which much of that testimony was based in this case. The record will reflect that the Court questioned each witness that testified extensively, and that all witnesses, with the exception of the parties or party representatives, were sequestered during the course of trial. The Court's findings of fact that follow are in no small part based on the trial judge's view of the credibility of the witnesses that testified, based on their trial testimony, as well as the documentary evidence and the explanation of, or reconciliation of, any previous inconsistent statements, written or oral, made by a witness.

Due to the size of the courtroom in which the trial was conducted, the trial judge was seated between three and four feet from each witness that testified as the witness testified.

III. Order of witnesses' testimony and the Court's view of witness credibility

The first witness to testify, on July 26, 2010, was Barbara Taylor, the Freedom of Information Act coordinator for the Connecticut Housing Finance Authority (CHFA). The Court found Taylor's testimony credible. The second witness to testify, on July 26, 2010, was Trudy Higgins, vice president of services for Birmingham Group Health Services. The Court found Higgins' testimony credible. The third witness to testify, on July 26, 2010, was Shella Runlett, director of housing counseling programs for plaintiff Home, Inc. The Court found Runlett's testimony credible. The fourth witness to testify, on July 26 and 27, 2010, was Dominick Thomas, plaintiff Home Inc.'s zoning attorney and member of the Board of Directors for the Birmingham Group. Thomas recognized that he “can be a very pushy person” when making his point ( Thomas, Trial Tr. vol. 2, 105, July 27, 2010, Rec. Doc. 187 ). The Court found Thomas's testimony credible. The fifth witness to testify, on July 27, 2010, was Richard Dunne, Derby's Economic Development Director from 1995 to 2004. The Court found Dunne's testimony credible. The sixth witness to testify, on July 28, 2010, was Linda Fusco, a Derby resident and member of the Board of Alderman in 2005. The Court found Fusco's testimony credible. The seventh witness to testify, on July 28, 2010, was David Dodes, a defense witness who was taken out of turn, who was employed by the City of Derby to write its zoning regulations in 2000 and was a paid consultant for the City of Derby at the April 21, 2005 Zoning Board of Appeals (ZBA) meeting. The Court found Dodes' testimony credible. The eighth witness to testify, on July 28 and 29, 2010, was Chris Peterson, director of real estate development for Home Inc. The Court found Peterson's testimony credible.

The ninth witness to testify, on July 29, August 10, 11 and 12, September 23, 2010, and April 12, 2011, was Samuel Rizzitelli, who was chairman of the Zoning Board of Appeals, Alderman for Ward 1 of the City of Derby and Chairman of the Democratic Town Committee, who is also an attorney. The Court found Rizzitelli's testimony riddled with inconsistencies, self-serving and not to be credible. The tenth witness to testify, on April 12, 13 and 14, 2011 was defendant David Kopjanski, Derby's Zoning Enforcement Official and Building Official. The Court found Kopjanski's testimony self-serving, inconsistent and not to be credible. The eleventh witness to testify, on April 14, 15, 18, 2011, was Joseph Migani, plaintiffs' architect. The Court found Migani's testimony credible. The twelfth witness to testify, on April 15, 2011, was Dr. Angelo Dirienzo, a defense witness taken out of turn, who was a member of the Zoning Board of Appeals during the period in question. The Court found Dr. Dirienzo's testimony credible. The thirteenth witness to testify, on April 19, 2011, was Richard Burtula, a defense witness taken out of turn, who was defendant Derby's corporation counsel during plaintiffs' Certificate of Zoning Compliance (CZC) application process. The Court found Burtula's testimony generally credible.

The fourteenth witness to testify, on April 20, 21, 25, 26, 27 and 28, 2011 was Brett Hill, president of plaintiff HOME Inc., who is also an attorney. The Court found Hill's testimony credible and forthright, even when it was not in plaintiffs' favor, and found that Hill had an impressive mastery of the details of the plaintiffs' operations, the CHFA application and plaintiffs' damages. The fifteenth witness to testify, on May 2, 2011 was David Manley, a member of the Derby Zoning Board of Appeals. The Court found that Manley's testimony was generally credible but that he did not have a clear recollection of the proceedings in question, six years after the fact. The sixteenth witness to testify, on May 2, 3, and 5 was Marc Garofalo, former mayor of Derby. The Court found Garofalo's testimony to be riddled with inconsistencies, self-serving and not to be credible. The seventeenth witness to testify, on May 5, 2011, was Joseph Coppola, Derby's corporation counsel at the time of trial. The Court found Coppola's testimony credible.

Chris Peterson was recalled, on May 6, 2011, for the limited purpose of testifying about the additional time he had to spend on plaintiffs' project occasioned by defendants' failure to timely provided plaintiffs with the CZCs. The Court again found Peterson's testimony credible. The eighteenth witness to testify, on May 6, 2011, was Richard Bartholomew, a member of the Zoning Board of Appeals during the period in question. The Court found Bartholomew generally credible, but that he did not have a clear recollection of the proceedings in question, six years after the fact. The nineteenth witness to testify, on May 6, 2011, was Carol Senfield, a member of the Derby Zoning Board of Appeals during the period in question. The Court found Senfield's testimony credible. Brett Hill was recalled, on May 6, 2011, for the limited purpose of testifying in response to defendants' motion to amend their complaint to add an affirmative defense, filed on May 2, 2011 ( Rec. Doc. 243 ) and granted by the Court on May 6, 2011 ( Rec. Doc. 253 ). The Court again found Hill's testimony credible.

Sherri Pflugh, a former member of Derby's Board of Aldermen, testified by deposition...