NORWALK, Conn. – The words spoken by one attorney to another Thursday in Norwalk could not be stronger.
“It’s really shocking to me that you spent a year negotiating and you never talked to your clients,” former Corporation Counsel Peter Nolin said to the attorneys hired under former Mayor Richard Moccia to fight the lawsuit filed by the Al Madany Islamic Center. “You guys were hired by us – by us – and you’ve kept the one party that was key out of the negotiation – intentionally,” he said, referring to the neighbors of the proposed center. “You’ve known about these plans for months. You’re telling us now that it’s going to be jammed through on a vote tonight. Shame on all of you that go along with that, go home. … This has all been cooked. Shame, shame, shame on the lawyers for doing it.”
Comments by lawyers were naturally a part of the Zoning Commission’s public hearing, as three were on stage. But Nolin and Victor Cavallo threw a number of punches from Concert Hall’s floor. In contrast, Galen Wells urged the commission to take their legal team’s advice.
Nolin’s Linked In page says he practices business, real estate, commercial, insurance and environmental litigation. Cavallo says he is experienced in divorce and family law litigation. Wells’ Linked In page says she is the owner of Law Office of Galen W. Wells and a law practice consultant.
All were commenting on the actions of Corporation Counsel Mario Coppola, Marci Hamilton – a nationally recognized expert on the Religious Land Use and Institutionalized Persons Act – and Joseph Williams of Shipman and Goodwin. Williams is a member of the Real Estate, Environmental and Land Use Practice Group, according to the firm’s website, who practices in the areas of environmental and land use permitting and litigation.
“You are lucky to get a compromise out of RLUIPA,” Hamilton said. “The religious group has special privileges to do what no other builder can do,” she said.
Nolin said there was no federal law that said the Zoning Commission needed to vote on the matter Thursday.
“If the lawyers are saying that they are lying to you. That is not the law. If they promised the court that they were going to vote tonight then again, shame on them. They don’t have the right to do that,” Nolin said.
Williams had said the negotiation had taken a long time and that the case was on a tight timeline. The judge was moving ahead if there was no settlement, he said prior to the hearing, as reported here on Nancy On Norwalk.
The latest court document on file regarding deadlines is:
Order on Motion for Extension of Time
Document: 228
ORDER. Because the parties report that they are making substantial progress towards a final settlement of this matter, and have provided a firm and, as the Court understands it, realistic deadline for finalizing the settlement, the Joint Motion for Extension of Discovery Deadlines 227 is GRANTED. The Court notes, however, that it is has extended the deadlines in this two-year-old case several times in the last eight months to permit the parties to make and finalize their efforts to settle. While the Court understands that this particular settlement is complicated and requires multiple approvals, the Court also has an obligation to ensure that cases are adjudicated promptly, and the period of inactivity in this case has been unusually long at this point. Accordingly, absent an extraordinary showing, the Court will not extend the deadlines further. Fact discovery shall be completed by October 21, 2014; expert discovery shall be completed by January 6, 2015; dispositive motions shall be filed by January 27, 2015; and the Joint Trial Memorandum shall be due within 45 days of the Court’s ruling on any dispositive motions. Signed by Judge Michael P. Shea on 8/11/14. (Khan, J)
While Hamilton said, in announcing the settlement agreement, that Norwalk had attained a benchmark for other cities to emulate in attaining a “remarkable” settlement, Nolin said Hamilton had originally said Norwalk had a winnable case.
“I am shocked to hear a lawyer saying that (Al Madany) gets special privileges. She may … she knows the first amendment to the U.S. Constitution says you cannot give special benefit to a religious organization,” Nolin said.
Hamilton shook her head but said nothing.
Cavallo insisted on a point of order before the public was allowed to speak.
According to Duhaime.org, a point of order is “A term of parliamentary law and procedure which refers to an interjection during a meeting by a member, who does not have the floor, to call the attention of the chair to an alleged violation or breach of the assembly’s or meeting’s rules of order.”
Williams said, “It’s not a public hearing where there would be a point of order,” but Zoning Commission Chairman Joe Santo allowed Cavallo, a planning commissioner, to speak.
Cavallo said the Zoning Commission had no right to be voting on the settlement because it had no special permit application before it. It had no jurisdiction, he said. “It has been previously denied. The code only authorizes this commission to act on an application that is pending,” he said.
Any decision could be challenged by the neighbors of the property, he said.
“I am asking Corporation Counsel to give me an opinion with respect to this commission’s authority in any way, matter or form on this new plan without a new special permit application,” Cavallo said. “It has already been recognized that this commission has no right to act to on the premises. I want to know what authority does this commission have to act on the new plan.”
Williams answered that one. “The commission is a defendant in litigation and has every right and all jurisdiction it needs to act to approve a settlement agreement and that is what it is considering this evening,” Williams said.
“I think what we need to realistically understand is the federal statute that Marci Hamilton talked about,” Wells said. “There is a very, very heavy burden on the city. If city doesn’t win in this litigation we will end up with a larger mosque, less parking, etc. We could also end up with significant liability.”
Wells pointed out that the town of Greenburgh recently lost a RLUIPA case to the tune of a $6.5 million payout.
“Anybody who has ever been involved in litigation knows you listen to the advice of your counsel,” Wells said. “Your counsel involved in this case understand the law, they understand the facts, they are very close to it. They’re advising a settlement. They’re negotiating a settlement. It’s a very foolish, foolish client that does not take the advice of their counsel. It’s very easy for a lawyer who is not involved in the case, has never been involved in a RLUIPA case, to sit by and say, ‘Oh we could win this.’ He has no idea whether or not we could win this.”
Plus, she said, “It’s going to take a certain amount of political courage for people to do the right thing here and to approve the settlement. If the settlement is not approved by either the Zoning Commission or the Council, I want the people who objected to it to own it, to own what the consequences are.”
Williams had said similar things in introducing the settlement.
“The city, I want to tell you, has defended this lawsuit vigorously from the beginning. It did so for about a year and a half. It denies that there is any are violations by the city or by the Zoning Commission of the religious land use statute or of the complainant’s rights,” he said. “… But in the life of every lawsuit where there is risk to both sides there are junctures where the parties can hit the pause button.”
The matter should be decided by the community and not a judge in Hartford, he said.
“The Zoning Commission was adamant from the very beginning of the discussions and throughout them that it was not going to approve a plan that it finds unacceptable solely for the sake of settling the lawsuit, it would rather go to trial,” Williams said.
Settling was done with the “understanding that if it were to go forward, not settle with the case, not only would that be a very expensive proposition,” Williams said. “Al Madany would not be prevented from filing a new application something similar to what’s being proposed in the settlement. If it were to lose the case then … it could easily be $10 million to $15 million.”
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