Sharon voters say easement is worth the money

SHARON — At a special town meeting on Friday, Sept. 25, Sharon residents said definitively, with a vote of 47-16, that they would rather go to federal court than accept a settlement that would force the town to give up a recreational easement on Joray Road.

The three selectmen were among the 16 residents who voted to accept the settlement, which they helped draft. The settlement was written in an effort to avoid going to federal court; a lawyer hired by the town’s insurer warned at the meeting that the case could cost Sharon taxpayers as much as $500,000. The insurer’s liability is capped at about $90,000, so the town would have to pay the remainder of the money.

Attorney Frederick O’Brien advised voters that there is a 50-50 chance the town will lose the case in court, and he said that as an experienced litigator, he would not recommend those odds. Voters decided they would like to take their chances.

The history of the case

Joray is a Colonial-era road, which is now mainly a dirt path that extends a  little less than a mile. It is on property owned by Pilar Conde and her husband, Alfonso Lledo. They bought property at 124 West Woods No. 2 Road in 2003.

The couple cleared and paved a portion of Joray Road while their house was under construction, and their builder installed a temporary gate, to protect his equipment and materials. The gate remained after the house was completed, and two Sharon residents filed a complaint about it at Town Hall.

The road is one of 12 in that section of town that retains a recreational easement, which means that town residents can walk, cycle or ride horses on them. The town is required, in exchange, to maintain the roads and the town is liable if anyone is injured or killed on the roads.

After the complaint was filed, a multi-year dispute began between the town and the property owners over the gate. Pilar Conde had several discussions with selectmen about ways to keep the path accessible. She also claimed that the town was not fulfilling its end of the bargain because it was not maintaining the road; that claim is not in dispute.

What is in dispute is whether the town deprived Conde of her constitutional right to due process. Conde and her attorney, Barrie Goldstein of Washington, Conn., have a letter from town attorney Donna Brooks that says the town would not allow Conde to put up a gate on the easement under any circumstances.

Conde had originally been invited to a meeting of the Board of Selectmen in 2008 to discuss the gate but in her letter, Brooks advises Conde not to attend because she will not be included on the agenda for that meeting.

(Documents in the case can be found by clicking here: https://www.tcextra.com/files/conde/)

Conde and her attorney then took the due process complaint to court and a ruling was made this summer that the case can proceed.

In an effort to avoid litigation, the town’s insurer advised the selectmen to settle out of court. The town is insured by the Connecticut Interlocal Risk  Management Agency, which insures many municipalities in the state. They hired attorney O’Brien, from the law firm of Regnier, Taylor, Curran and Eddy in Hartford, to represent and advise the town.

The town meeting vote

The meeting Sept. 25 offered voters a chance to accept or reject the settlement.

O’Brien  explained the details of the settlement.To avoid having to defend itself in a lawsuit in federal court, and to avoid having to pay legal fees for both O’Brien and for Conde’s attorney (which could be more than $400,000), the town had crafted a settlement agreement with Conde. In it, the town gives up the right to the .9 mile-long easement on Joray Road; Conde gets to keep her gate in place; and she pays her own legal fees.

O’Brien stressed that the court case is not about whether the town gets to keep the easement; it’s a question of whether Conde was deprived of her right to due process.

O’Brien said, as part of due process law, a citizen is entitled to a hearing before a governmental body takes action that affects the citizen’s rights. The town told Conde in writing she couldn’t have her gate and that the matter would not be discussed at the meeting; and then invited her, after the fact, to discuss the gate at a subsequent meeting.

“At least since ‘Alice in Wonderland,’ it’s obvious that you can’t have the sentence first and the trial later,†O’Brien told the 80 people in the packed Town Hall meeting room.

If the town wins the case in federal court, it will still have to pay its own attorney; Conde would not be liable for the town’s costs, even if she loses.

It’s not about the easement

Audience members reacted strongly to the proposed settlement. Most seemed determined not to let the easement be given away.

When asked, about two thirds of the people in the room said they had hiked on Joray Road and want to continue to do so.

Resident Tom Casey said, “The plaintiff purchased a property fully knowing that it had a recreational easement on it.

“Because [Conde] did not have her way, now the town is being extorted? This is a right-and-wrong issue versus a financial issue. I would rather pay half a million dollars and lose and know we did the right thing.â€

Cicily Hajek, chairman of the town’s Conservation Commission, criticized the settlement and said it was not a good compromise between the town and Conde.

“In this settlement, the town is being asked to give up all rights to Joray Road and in return the plantiff is agreeing to pay her own legal fees,†Hajek said. “The original suit did not ask to give up rights for the trail. We are giving up more than what was asked for. Is it a compromise for the town to give up a valuable asset in order to save it money?â€

Hajek also accused the attorney of encouraging the settlement, claiming it is in his own best interest to settle. O’Brien responded that as a litigator it is his job to advise clients when he thinks that they might lose a case, especially when a substantial amount of money is at stake.

One woman in the audience asked if the town has a half million dollars available in the budget somewhere. The selectmen said no, and said that taxes would most likely have to be increased to pay the costs. Even if the town wins, the town’s attorney fees for defending the case in federal court are likely to be around $200,000.

Barrie Goldstein, the attorney for Conde, attended the meeting and said she was very disappointed in the vote, but the pre-trial phase has already been completed and the case will now proceed to federal court.

The court will decide at that point whether Conde was denied a chance to be heard.