Court Says DOT Officials Took Low Road
Judge blasts state, awards quarry owner $23 million
By THOMAS B. SCHEFFEY
A Danbury judge has rocked the state Department of Transportation, ordering it to pay nearly $23 million, plus interest, to a stone quarry owner in the Fairfield County town of Brookfield.
The DOT wanted the land so it could build a bypass for traffic-clogged Route 7, and paid $4.1 million when it took the 108 acres in a 2004 condemnation proceeding. But after years of litigation, Superior Court Judge Barbara J. Sheedy ruled last week that the state’s payment was far below the property’s value and she added $19 million to the award.
In doing so, Sheedy blasted both the competence and ethics of state officials.
The DOT, Sheedy wrote, “conducted itself throughout as unprofessional, lacking in diligence, and less than scrupulous.” She cited a pattern of behavior that “disserved not only this plaintiff but which continues to disserve the residents of this state.”
A Department of Transportation spokesman said the agency is considering its appeal options. Assistant Attorney Generals Carol Young and Alan Ponanski represented DOT. Farmington trial lawyer R. Bartley Halloran and Fairfield solo Jay Skelton represented the quarry’s owner.
“The AG’s office people were very straightforward and did an excellent job. I don’t feel the same way about the DOT,” Halloran said. “Just as a prosecutor’s job is not just to convict people, DOT’s job is not simply to get the land at the cheapest possible cost for the state. I think they have an obligation to be fair, and I think they failed miserably in this case.”
Equally angry is quarry owner Robert Parker, president and CEO of Rock Acquisition LP. Last week, he told The News-Times of Danbury that the judge’s decision vindicated his decision to fight for what he felt was a fair price for the land.
“This process started in 1996,” said Parker, an Orange resident, “and it’s been 13 years, and during that period of time there is absolutely no question to the Brookfield quarry and its investors that the state was trying to steal our property for $4.1 million.”
'Really Messed Up’
Parker thought he had made a wise purchase in 1988, when he bought the only active quarry in booming Fairfield County. The crushed stone aggregate it produced is the major component in concrete.
But as early as 1996, Parker was trying to persuade the DOT not to take his property for the bypass. He said he was told the plan was “set” and could not be changed. This, wrote Judge Sheedy, was a misrepresentation. In 2000, the DOT acknowledged that it had not taken the preliminary step of obtaining the most basic environmental approvals required for federal funding.
In August 2000, DOT official Richard Martinez “acknowledged that the state had `really messed up,’” Sheedy wrote. At that point, officials told Parker the condemnation would proceed in 2001. But the real steps to acquire the property didn’t move forward until 2003, and the $4.1 million payment wasn’t made until the next year.
Halloran said the payment size was only one of his client’s complaints. The quarry also lost out on potentially lucrative, long-term construction project contracts because it had the “cloud of condemnation” hanging over it for so long, the attorney said.
“The delay between first notice of the taking and the actual taking was clearly unreasonable,” Judge Sheedy wrote in her decision.
When Parker filed suit against the state over the condemnation payment, he said there were more than 15 million tons of valuable stone still to be extracted from the quarry. The state wanted to compensate him only for the crushed stone that was already on the ground.
“When Parker first contacted me, after his first lawyer retired two years ago, the thing that surprised me most was that the [compensation] number at DOT kept going down,” said Halloran. “As I read the appraisal reports, I couldn’t understand what their justification was.”
Over a lengthy trial, four land valuation experts defended appraisals that ranged from less than $1 million to $70 million. In the end, the judge found only one of them credible.
Zero Weight
The DOT relied on Hartford appraiser Dean Amadon and New Jersey appraiser Kenneth Jones.
The judge wrote that Amadon “lacked any semblance of credibility or expertise [,] often contradicted himself, and his opinions were unreliable.” He lacked the experience to value a quarry, Sheedy concluded, and gave zero weight to his testimony.
Jones, of New Jersey, also fared badly. He was not a college graduate or a mineral specialist, the judge noted. And while Jones claimed to be a member of the American Society of Appraisers’ mines and quarries subsection, the judge said he was not even listed as a general member of the group for the years in question
Jones was highly critical of the quarry’s estimate that 600,000 tons of stone could be extracted and sold annually, but did not have any comparable statistics from other Connecticut quarries on which to base his opinion.
Jones also criticized the valuation methodology used by one of Parker’s experts. But it was later revealed under questioning that he had used the same methodology when hired by the seller of a Bernardsville, N.J., quarry. While he valued the New Jersey quarry at $47 million, he put the worth of the Brookfield quarry at $2.3 million.
In her decision, Judge Sheedy indicated her displeasure with Jones’ inconsistencies: “Eventually,” she wrote, “the music stops and the dance must end.”
Parker’s lawyers called Hartford’s Edward Heberger and Denver-based mineral appraisal expert Trevor Ellis.
Ellis was trained in Australia, earned a degree in mineral economics from the Colorado School of Mines and wrote the ethics code of the American Institute of Minerals Appraisers. He is also a past president of the institute. He valued the Brookfield quarry at $45 million and assigned another $25 million to its value as a site for dumping fill through the year 2032.
Despite Ellis’s qualifications, the judge also gave little weight to his testimony. Her decision quoted from a presentation Ellis made in Denver, when he told colleagues that “minerals appraisers who provide high value estimates generally get the most work.” The judge called such statements, “not merely unprincipled but reckless.”
As for Heberger, he estimated the income the quarry site would produce. He put the numbers at $22.9 million for the stone and about $6.2 million for a fill operation.
The judge found him the most experienced appraiser of the group. Neither his integrity nor his credentials were impugned, she wrote. “He was comfortable, conversational, gracious, and believable,” Sheedy wrote.
Smoking Gun
Two days into the trial, the judge ruled that the quarry owner’s team could receive 10 boxes of DOT documents that had been the subject of a discovery battle. Among the new papers, according to attorneys, was an internal memo that showed the DOT fully expected the property to be valued at $25 million. One memo showed a 17-acre portion of the quarry valued at about $18 million.
“We thought, ‘How could 17 acres be worth $18 million, and the whole property’s 108 acres be worth $4 million?’” said Skelton, the co-counsel for the quarry’s owner. “It was the same exact land. It made no sense to us.”
It made no sense to Judge Sheedy either. She decided to go with appraiser Heberger’s $22.9 million figure for potential quarry profits. She declined to recognize the $6.1 million value he placed on the site’s future use as a fill site, deeming that too speculative.
Additionally, the judge ordered the state to pay 10 percent annual interest on the unpaid portion of the award. With interest included, Parker, the quarry owner, estimated the total payout at about $32 million.
Attorney Halloran said he’s worried that the Brookfield quarry owner might not be the only person harmed by state DOT tactics. He said he found at least one other case with a similar scenario.
“The state has to take a hard look at the way they’re doing this,” he said. “Thank God we had a judge who had the courage to see what they were doing is wrong, and to say so.” •
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