Town, Defendants File Motion To Dismiss Federal Lawsuit

By John Voket

A legal team representing the town and nine officials who are named as defendants in a federal lawsuit filed a motion to dismiss the suit late Wednesday. Copies of a brief and motion supporting it were reviewed by The Newtown Bee early Thursday morning.

The original civil action filed by local business owner Matthew DeAngelis calls for “injunctive and other relief for Defendant’s violation of Plaintiff’s right to due process under the Fourteenth Amendment to the United States Constitution...”

The suit, filed November 20, also seeks a restraining order preventing any further spending on development or environmental remediation at Fairfield Hills, a public vote endorsing a master plan for the town-owned campus, a full accounting of all public spending on the project to date, and attorney’s fees.

In a previous report, Craig T. Dickinson, an attorney for the plaintiff, further explained the original action, which involves Mr DeAngelis’s contention his constitutionally guaranteed right to due process was violated because a master plan for the development at Fairfield Hills was not endorsed by local taxpayers.

“The crux of the issue for [Mr DeAngelis] — the way it appears right now is [the town] got a decision from the voters...,” Mr Dickinson said. “The municipal taxpayers have a right to bring a suit for injunctive relief...where the court either makes someone do something or stop doing something.”

After the town planned to purchase the campus, voters rejected a master plan in a nonbinding referendum. The proposed master plan encompassed future revamping and use for the 180-plus acres, open space, and buildings now standing vacant.

The Fairfield Hills Authority, which was subsequently created by legislative action and is governed by local ordinance, is currently operating by a master plan established in 2003 and endorsed by the Planning & Zoning Commission.

First Selectman Herbert Rosenthal, who is among the defendants, had only a brief comment on the latest filing.

“It’s in the hands of the court now,” Mr Rosenthal said. “Beyond that I have no further comment.”

Mr Rosenthal and fellow selectmen William Brimmer, Jr, and Joseph Bojnowski, who are also names as defendants, issued a rebuttal to the original action in December, however. In that statement, the selectmen contend every dollar of tax money spent for Fairfield Hills was duly approved by Newtown taxpayers on multiple occasions.

“Beginning with a town meeting held on June 6, 2001, attended by approximately 900 people, the appropriation of $21,850,000 and bonding resolution that contained the purposes for which funds may be spent were passed by a large majority. The town meeting vote followed previous unanimous approvals by the Selectmen and Legislative Council,” the statement said.

The selectmen’s statement pointed out that, in light of the present litigation, there is nothing in Newtown’s Charter that requires a master plan of development to be approved by the voters at either a town meeting or a referendum.

“More importantly, the charter does not provide a means for holding either a binding town meeting or a binding referendum to adopt a Master Plan of Development,” the statement continues. “Without a means for a binding vote, the Selectmen opted for the nonbinding, advisory referendum held on August 12, 2003 in the hope of obtaining a consensus of public opinion for the then proposed plan.”

Justification For

Dismissal

The motion to dismiss the action filed this week claims the federal court “lacks subject matter jurisdiction over a challenge to the master plan of development for the Fairfield Hills property.” The motion further states that “Mr DeAngelis has failed to state a claim upon which relief may be granted; and even if Plaintiff states a claim upon which relief can be granted, there is no genuine issue as to any material fact and Defendants are entitled to judgment as a matter of law.”

The motion goes on to say, “in a nutshell, [Mr DeAngelis], a resident of the Town of Newtown, is unhappy with the development plans for a certain Town-owned property known as Fairfield Hills, and is improperly seeking to have this Court review the Town’s development plan and expenditures in connection with the Fairfield Hills property under the guise of (42 US Code Title 1983.) In the first instance, this Court lacks subject matter jurisdiction to hear Plaintiff’s gripes with the master plan of development. However, even if it did, the claims made do not constitute a violation of Title 1983, and, therefore, the Complaint fails to state a claim upon which relief may be granted.”

First Selectman’s

Affidavit

Finally, based on the separate affidavit of First Selectman Herbert Rosenthal, defendants are entitled to summary judgment because the town diligently followed the procedures required by the town charter, and applicable regulations, ordinances, and statutes. Besides the selectmen, Fairfield Hills Authority members Amy Dent, Robert Geckle, John Reed, Moira Rodgers, Donald Studley, and Walter Motyka are named as defendants.

Authority member Michael Holmes was appointed to the panel after the suit was filed. Andrew Willie was not named because, according to Mr DeAngelis, he failed to note that Mr Willie’s name was included on the subsequent page of a local directory the plaintiff was using to reference the defendants as he composed the suit.

In Mr Rosenthal’s affidavit, he notes that on August 12, 2003, “a non-binding advisory machine vote was held to provide guidance” on the Board of Selectmen’s preliminary plan for reuse of the campus. The affidavit points out that “Mr DeAngelis did not take part in this vote. Nor did he speak out in objection to any of the actions of the Board of Selectmen, Legislative Council, or Planning & Zoning Commission…”

The document further states that no objection to the subsequent drafting of the Fairfield Hills master plan by the Planning & Zoning Commission “was ever brought by Mr DeAngelis or anyone else,” and that “the Town Charter does not require or authorize a master plan of development to be approved by the voters at either a Town Meeting or referendum.”

It continues: “The Town Charter does not provide a means for holding either a binding town meeting or binding referendum to adopt a master plan of development.”

While it is not mentioned in the affidavit, Mr DeAngelis also told The Bee last October that he was “in the very preliminary stages” of considering a possible political run for a selectman’s seat in 2007. Mr DeAngelis responded to a request for comment with a lengthy email which said, in part:

“I intend to help the taxpayers fix the problem this November, when all of the members of those three bodies are up for reelection.”

Mr DeAngelis referred to the motion to dismiss, saying: “This is the same bleating that we’ve been hearing in statements given to the press against the advice of counsel. It’s full of half-truths and misrepresentations.”

He also referred The Bee to Mr Dickinson for “legal comments on the motion and our response.” Prior to press time, there was no answer to two calls made to the attorney at the number provided in Mr DeAngelis’s email.

Sources close to the case have said once the motion to dismiss was filed, it could take weeks or months for the court to reach a final decision on the matter.