Case 3:12-cv-01617-JBA Document 2

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

_____________________________X

WAYNE COOKE CIVIL ACTION NUMBER: 3:12-cv-1617

v.
ANTHONY DA ROS, FIRST SELECTMAN, BARBARA NEAL, TAX ASSESSOR

_____________________________x

NOVEMBER 13, 2012

The Parties

I. At all times pertinent hereto, Wayne Cooke, was a partner in entities that owned property in Branford, CT (hereinafter referred to as Hilltop Orchards), and a resident of Branford, Connecticut. 2. At all times pertinent hereto, the defendant Anthony Da Ros was Branford's First Selectman; he is sued in his official capacity. 3. At all times pertinent hereto, the defendant, Barbara Neal functioned as

Branford's tax assessor and is being sued in her official capacity.

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Jurisdiction 4. This action alleges violations of the First and Fourteenth Amendment to

the United States Constitution, and violations of 42 U.S.C. 1983. 5. Jurisdiction lies with this court pursuant to 28 U.S.C. 1343. Facts 6. In and after January, 2008, Cooke attended and participated in the Town

of Branford's Planning and Zoning Commission's hearings for the Comprehensive Town Plan of Conservation and Development in order to safeguard the family's interests and provide for the future development of Hilltop Orchards. 7. In January, 2008, Hilltop Orchards was located in an area of the Town of

Branford off of exit 56 offl-95 that was zoned for industrial (102) use and, as such, certain potential uses of the property, including large scale retail development, were prohibited. 8. Cooke sought to convince members of the Branford Planning & Zoning

Commission, who were responsible for drafting and enacting the Comprehensive Town Plan of Conservation and Development, that retail development in the area of town near Exit 56 would be a benefit to the Town.

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9.

In 2008, Cooke was unable to persuade the Branford Planning & Zoning

Commission to alter its Plan of Conservation and Development so that large scale retail development at Exit 56 would be encouraged. I 0. During the course of such dealings with Branford town officials in 2008,

Cooke became convinced that the town plan process was being subverted and manipulated by First Selectman Anthony Da Ros to prohibit development at Exit 56. II. During this time, Da Ros expressed his belief that if a zoning change was

made such that the industrial zone designation was replaced with a different designation, that that would open the door for affordable housing developers to seek to build affordable housing projects in that area. 12. In public comments, Da Ros, when referring to affordable housing

developers, described such developers as "parasitic." 13. At that time, Cooke began to equate the way in which he believed the

town planning process was being subverted in part out of a desire to block affordable housing projects at Exit 56, with earlier actions taken by Anthony Da Ros as First Selectman of the Town of Branford to thwart an affordable housing development on property located on Tabor Drive in Branford, Connecticut. 14. In 2003, owners and potential developers of an affordable housing

development on Tabor Drive had sued the town for a bad faith abuse of the eminent domain process in state court litigation known as New England Estates v. Town of Branford.
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15.

In his public comments and communications to Branford Town officials,

Cooke began to make explicit comparisons between the way in which the Da Ros administration had dealt with Tabor Drive, and the way Da Ros was treating the question of whether to allow changes in the zoning classifications for land near Exit 56. 16. Specifically, Cooke began to compare actions that the jury in the case

involving Tabor Drive had found to be an abuse of power and that the Connecticut Supreme Court called "dishonest" to behavior by Da Ros in dealing with the zoning issues surrounding Exit 56 and Hilltop Orchards, which behavior Cooke began to describe publicly as dishonest and an abuse of power. 17. In direct response to Cooke exercising his constitutionally-protected first

amendment right to criticize local government officials, generally, and to criticize Anthony Da Ros, specifically, Da Ros and Barbara Neal embarked upon a series of retaliatory acts to punish Wayne Cooke. Revoking Tax status of Hilltop Orchards 18. Beginning on or about January 29, 2009 and continuing through this day,

the Town of Branford through its tax assessor, defendant Barbara Neal, revoked Hilltop Orchard's designation on the tax rolls as a farm, as that designation is defined in Conn. General Statute 12-1 07b, at seq. 19. With no notice or warning, that action caused the annual taxes on the

Cooke parcels to increase from $17,000.00 to $85,000.00 per year, and forced Cooke and

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the other owners of the property to engage in extensive and expensive litigation that continues to this day. 20. In February 2009, Cooke filed four appeals from Neal's action to the

Town of Branford's assessment appeals board, since four separate real estate parcels had been taxed as part of one farm unit. 21. On February 25, 2009, letters were sent to the Cookes by the Board of

Assessment Appeals notifying them that formal appeals would not be heard for two parcels, 573 East Main Street and 616 East Main Street, because those parcels carried valuations in excess of $500,000.00. 22. On March 12, 2009, Cooke's attorney presented the appeals for the two

smaller parcels, Red Hill Road (East Main Street) and Leetes Island Road (Thimble Islands Road). 23. The Board of Assessment Appeals unanimously determined that the

smaller parcels, which individually were not farmed, were to retain their status because the smaller parcels were part of the larger whole, and the larger whole qualified for farm
tax status.

24.

After this vote, one appeals board member, aDa Ros political supporter,

sent a letter to the chairman of the Board of Assessment Appeals in which she attacked Wayne Cooke's reputation and attempted to undermine the decision made by the Board by urging the tax assessor to ignore the Board's decision and deny the Cooke tax appeals.

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25.

On April!, 2009, despite having no role whatsoever in the tax appeal

process as part of his duties and responsibilities as First Selectman,Anthony Da Ros attempted to interfere with and reverse the decision of the Board of Assessment Appeals by writing to the Board, expressing his belief that the Board had erred and urging it to reverse its decision. 26. After the Board ignored its member Judith Burke, and rejected Da Ros's

unprecedented attempt to interfere with and reverse its decision, defendant Barbara Neal continued to ignore the established farm uuit which the Town had recognized for fifty years, and pressed forward with litigation on the two larger properties. 27. In so acting, Da Ros and Neal committed the full financial resources of the

Town of Branford to appeals in which the property owners faced the prospect of either paying prohibitive legal fees or being forced to sell their property. 28. In 20 I 0, even though the Board had ruled against the tax assessor,

defendant, Barbara Neal, in March 2009 on the two smaller parcels, Neal again revoked the tax status on the same two parcels, thereby forcing the Cookes to again appeal. 29. In 20 I 0, however, a new Board of Assessment Appeals, now stacked with

appointees fully supportive ofDa Ros, heard and rejected the Cooke appeals, necessitating further litigation. 30. The Town and the owners of Hilltop Orchards farm eventually reached a

settlement on the two larger properties which agreement was reduced to writing and signed by all parties.
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31.

Since that time, in the face of Cooke's continuing public criticism of

Anthony Da Ros and other officials in the Town of Branford, the Town has violated both the spirit and the letter of the settlement agreement and continued to force Cooke and the owners of Hilltop Orchards to pay extensive legal fees to enforce the settlement agreement that had originally been coerced by the Town through economic distress. 32. In March 2011, Da Ros publicly asked Third Selectman John Opie to look

into and report back to the Board of Selectmen on the public requests by Wayne Cooke that the farm tax matters be resolved. 33. On April13, 2011, the "Opie Report" was presented to the Board of

Selectmen. The report called for the tax settlement to be honored and farm tax status to be restored to the Cooke property. Da Ros--along with then Second Selectman Francis Walsh--rejected the report's findings. Blocking Hilltop Orchard Development 34. In 2009, Wayne Cooke had begun formulating plans to present to the

Plarming and Zoning Commission so that a large scale retail project would be permitted on the Hilltop Orchards properties, and hired various professionals to assist with plans for this project. 35. Cooke approached the Commission a number of times during its revision

of Branford's zoning regulations and discussed the possibilities of a special development area, an overlay zone, or a formal zone change for this purpose.

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36.

In 2010, Wayne Cooke began to have discussions with representatives of a

large national store chain about a possible development at Hilltop Orchards. 37. A representative of the company identified the Hilltop Orchards property,

specifically the 573 East Main Street parcel, as ideal for its purposes. 38. In an early November 20 I 0 meeting with company representatives and

town officials, Anthony Da Ros expressed concerns about "traffic problems" with the Cooke property and directed company officials to a different property half a mile from the Cooke property owned by a political supporter and friend of Da Ros. On this parcel, according to Da Ros, "traffic would not be a problem". 39. Despite having no actual role in the plarming and zoning process as part of

his duties and responsibilities as First Selectman, Anthony Da Ros soon thereafter informed the president of the Stony Creek Association--a civic group representing a part of town in which Da Ros resides and that has traditionally been opposed to Exit 56 development--that, because of traffic concerns, he would only endorse the store's placement on that parcel not owned by Cooke. 40. In response to public questioning concerning his role in ensuring that

Hilltop Orchards would not be developed, Da Ros claimed publicly that he had told the company's representatives at the November meeting that the Cooke property would be "perfect" if they could access East Industrial Road for egress to their site. Da Ros claimed that he was told by company representatives at the November meeting, that such egress could not be obtained.
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41.

In fact, such a statement by the company representative regarding the

inability to achieve access was never made; the company commissioned and provided to Wayne Cooke, in mid-January 2011, a preliminary plan for development of the 573 East Main Street parcel, which specifically showed egress from the property to East Industrial Road. 42. In May, 2011, Da Ros publicly repeated the lie that he had suggested the

Cooke property for the store's location, and that the inability to achieve access from this property to East Industrial Road was the only real reason why the development discussions did not continue. 43. In May 2011, company representatives officially notified Cooke that they

were "not going to fight the Town" and would not negotiate further with Cooke concerning a development on the Cooke property. 44. After May 2011, Da Ros repeatedly made public comments that any

attempt by any developer to develop Hilltop Orchards would fail because of alleged restrictions on Cooke's right to sell the land, which restrictions did not and do not exist. 45. All of the acts as afore described undertaken by the defendant Da Ros done

under the color and pretense of state law, and the charter, ordinances, regulations, customs and usages of the Town of Branford as First Selectman of Branford. 46. All of the acts as aforedescribed undertaken by the defendant Neal were

done under the color and pretense of state law, and the charter, ordinances, regulations, customs and usages of the Town of Branford as Tax Assessor of Branford.
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47.

All the acts ofDa Ros and Neal as aforedescribed were undertaken

intentionally and deliberately to retaliate against Cooke for exercising his First Amendment right to criticize Anthony Da Ros specifically and the Da Ros administration generally, in violation of Cooke's First Amendment rights and in violation of 42 U.S.C. 1983. 48. As a direct result of this violation of his civil rights, Cooke has sustained

damages including, but not limited to, monies spent for attorney's fees in combating the retaliatory revocation of Hilltop Orchard's farm tax status, all monies spent in attempting to advance a retail development project near Exit 56, and the loss of or diminution in value of development opportunities for Hilltop Orchards.

Wherefore, Plaintiff claims:

1) A trial by jury; 2) Money damages, including punitive damages; 3) Costs and attorney's fees; and 4) Such other relief as the court may deem just and equitable.

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THE PLAINTIFF WAYNE COOKE

------'/s/_ _ _ _ __
DavidS. Doyle (ct 02987) ddoyle({I!marcuslawtirm.com The Marcus Law Firm 275 Branford Road North Branford, CT 06471 Tel. 203-481-3330 Fax, 203-488-4070 His Attorneys

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