1. The Land and Its Setting in the Region and State

The Bennett’s Pond property is a square mile of woods, ponds, wetlands, and steep ledge just west of Route 7, on both sides of Bennett’s Farm Road. It is contiguous to, and largely controls access to, Ridgefield’s Pine Mountain Preserve and Wooster Mountain State Park. The pond itself is in the headwaters of the Saugatuck River, the primary source of the Bridgeport Hydraulic Company Main System, which supplies drinking water to 350,000 people. It is a magnet for wildlife of all types.

The property is the largest remaining vacant parcel in Ridgefield. It is identified as "Desirable Open Space Land" in the Ridgefield 1999 Plan of Conservation and Development. Ridgefield is unlikely to achieve its goal of 25% passive open space without preservation of the Bennett's Pond property.

Almost the entire property is identified as "Conservation Land" or "Preservation Land" in the corresponding State of Connecticut document, the Conservation and Development Policies Plan for Connecticut, 1998-2003. The Connecticut Department of Environmental Protection has repeatedly expressed an interest in incorporating the property into the state park system, and, with the encouragement of Representative John Frey, has committed $5 million for this purpose.

2. Brief History

The International Business Machine Corporation owned the property from the early 1970's. When it became known in May 1996 that IBM was planning to sell the property, the Planning and Zoning Commission asked the Board of Selectmen to purchase the property. The Board of Selectmen and the Board of Finance agreed, at least informally, on a bid of $12 million to $13 million.

In January 1998 IBM sold the property to Eureka V LLC for $8 million. To this day it is not known what happened to Ridgefield's bid. IBM counsel denied any impropriety, stating that the land had been appraised for less than $8 million, and that IBM had received no bid for more than $8 million.

Eureka V is a limited liability company, the principals of which are the Roseland Property Company and Howard Milstein. Roseland, which controls the Weehawken waterfront among its other interests, is one of the largest developers in New Jersey. Milstein is a major New York City developer. In 1997 he was one of the twenty largest owners of residential property in the United States, with 37,000 units in his portfolio. Until recently he owned the Islanders ice hockey team; the National Football League rejected his $800 million bid for the Washington Redskins in 1999.

3. The Rationale for Eminent Domain

3.1 Historical Perspective

The impetus to launch an eminent domain action grew largely out of frustration with other recent land transactions in Ridgefield. There is broad consensus that the Town badly mishandled both Friedman and Turner Hill properties. Both properties were zoned for corporate development. In both cases, as soon as provision was made for sewer service, the properties were flipped to residential use.

The Friedman case is particularly galling, as the Town bought the property at an inflated above-market price to settle lawsuits filed by the owner. The voters, in approving this purchase, also may have been influenced by the developer's threat to invoke state affordable housing statutes. To recover some of the cost, the Town itself developed the property for single-family housing, which, predictably, increased crowding at Ridgebury School.

ROSA predicts the same scenario will be played out at Bennett's Pond. All of Eureka's proposals have involved a zone change to permit high-density residential housing. Cognizant of the Town's sensitivity to potential increases in the population of school-aged children, Eureka has specified that much of the residential development be age-restricted. The legality of such restrictions is questionable; litigation has opened some age-restricted developments to families with young children. Moreover, once the property is rezoned and a sewer line introduced, the property can be easily resold to a developer with different intentions.

3.2 The Role of the Planning and Zoning Commission

Some might argue that purchasing the property to avoid overdevelopment is unnecessary, since the Planning & Zoning Commission has the authority to control and limit the use of the land. Ridgefield's experiences with the Turner Hill and Friedman properties are clear examples of why the town cannot rely on the authority of the Planning & Zoning Commission to curtail development. Their statutory authority is not designed for the purpose of stopping development and thus is an ineffective tool for achieving this goal.

Futhermore, Eureka is a partnership of two large and experienced developers, who have made fortunes wearing down the resistance of communities to their plans. Their application for a few wetlands crossings with a few thousand square feet of wetlands impact was a good example of the tactics used by developers to overcome the resistance of a recalcitrant municipality. The application was so minor it normally would have escaped public notice. In fact, the granting of that minor permit would have led to the construction of two miles of roads and a further two miles of driveways, ostensibly to serve fourteen single-family building lots in the 243 acre RAAA zone. Once the roads, on cleared fifty foot rights of way, had been constructed, and the fourteen houses built around the pond, the value of the property as state park land would have been nulled. Public and state interest in the property would have collapsed, and Eureka's subsequent applications would have faced little or no public opposition.

ROSA opposed this seemingly insignificant application, providing the Inland Wetlands Board with legal grounds to deny the application. ROSA has many supporters, thousands of whom are willing to donate money or sign a petition. However only a few are willing and able to spend the enormous amounts of time and energy required to study Ridgefield’s Zoning Regulations, the Connecticut General Statutes and environmental studies; to contact state and federal agencies; to draft testimony, and to attend long meetings of multiple boards and commissions. A group like ROSA cannot hope to hold out forever against a determined developer with bottomless financial and professional resources.

3.3 Attempts to Negotiate

Governments invoke eminent domain when a property owner is unwilling to sell at the fair market value. Such is the case here. In 1999 both the Trust for Public Land and former First Selectman Abe Morelli sought to open negotiations to purchase Bennett’s Pond. Mr. Morelli offered $12 million, which would have given Eureka a 50% profit on their very brief and risk-free investment. Eureka responded with an asking price of $32 million, four times what they had paid for the property just one year earlier.

A sale of part of the property was negotiated with First Selectman Marconi, but only on conditions that effectively excluded lawful review of the associated project plan by relevant town and state agencies. Eureka insisted that this plan appear on the December 2000 ballot as an advisory question. When the Board of Selectmen declined, the offer was promptly withdrawn. At that time Mr. Carl Goldberg, principal of Roseland Property Company, told the Ridgefield Press that "the timeline for negotiations has come to an end." He continued, "If people underestimate the power of Eureka V they are making a mistake."

3.4 The Prospect of Endless Lawsuits

A tactic regularly employed by developers is to dispirit opposition and wear down the will of government with incessant lawsuits. Friedman applied this approach with great success, and it is clear Eureka is ready to take a leaf from the same book. They have already launched two lawsuits in Superior Court (one of them since withdrawn), and it is reasonable to expect that more will be on the way. An eminent domain action will also lead to lawsuits, but only on two issues, as discussed in the next section.

4. Eminent Domain Law

Eminent domain is routinely used by the federal and state governments to buy rights of way for roads. While these takings may be hurtful to individual property owners, they are so common they do not attract notice outside of the communities immediately affected. It would have been impossible to conceive of building the interstate highway system without massive and systematic use of the power of eminent domain.

Connecticut municipalities have a historic right to acquire land for "commons" including, explicitly, open space. In the past, towns were content to buy parcels when they happened to come on the market. In recent years, as open space has dwindled and development pressures have increased, towns have used eminent domain more often. In the last several years, Westport and North Haven have bought park land in this manner.

Eureka can attack the eminent domain action on two grounds. The first is that the acquisition is an abuse of power. This is a difficult case for Eureka to make because the burden of proof is on the plaintiff, and state law is clear and specific. Under Connecticut General Statute §7-131(b)(a), the town may condemn "any land in an area designated as an area of open space land on any plan of development of a municipality adopted by its planning commission." The Bennett's Pond property has such a designation in Ridgefield's 1999 Plan of Conservation and Development.

The level of compensation will also be litigated. This is discussed in the next section.

5. The Risks of Eminent Domain

Eureka certainly will appeal the amount of compensation. In theory this presents an open-ended risk: there is no backing out of the deal and the town must pay what the court requires. This risk has been pointed out in all ROSA public statements on the subject of eminent domain, including commentaries in the Ridgefield Press, the petition information leaflet, and in a formal presentation to the Board of Selectmen on 27 September 2000.

The valuations of the North and South parcels as stated in the petitions are based on the March 2000 appraisal commissioned by the town and performed by Leary Counseling and Valuation firm. The Leary firm is one of the most respected in Connecticut, and Mr. Leary's reliability has been cited in judicial decisions of eminent domain cases.

Despite its confidence in the Leary appraisal, ROSA has devoted considerable time and energy to a financial risk assessment. Recent court decisions in North Haven and Westport clearly spell out the factors that enter into compensation rulings. Those concerned with the risks of eminent domain are strongly urged to read these. They should also take note of the ROSA internal memorandum "Eminent Domain: Valuation of the Bennett's Pond Property", which presents a digest of materials likely to be submitted to the court.

6. Impact of Purchase on Town Finances

According to the Leary appraisal, the North parcel is worth $7.8 million. Half that amount will be reimbursed by the state, making Ridgefield’s cost $3.9 million. The South parcel is worth $2.8 million. The Town would purchase that parcel on its own and use it as it wishes. ROSA routinely adds an additional $1 million to its financial estimates to allow for an adverse judicial opinion. On this basis, the total expense to the town of 613 acres on both sides of Bennett's Farm Road would be $7.7 million.

There are two ways of paying for this purchase. The usual method would be to bond it, and repay the debt over a fifteen year period. During the peak repayment years, the principal plus interest is about 12% of the face value of the bond. Hence in the peak repayment years, the annual cost will be $920,000. This is 1.5% of the 2000-2001 property tax levy of $59.4 million. Thus the mill rate would need to be increased by 0.36 mills.

The second method, proposed by a member of the Board of Finance, is to pay for the acquisition without long term bonding. Assuming a three year repayment plan at $2.6 million per year, the mill rate would need to be increased by 1 mill in each of the three years. Either way it is clear that the town is easily able to afford the purchase price of the Bennett's Pond property.

7. Forgone Tax Revenue

The Ridgefield 1999 Plan of Conservation and Development specifies "Ridgefield should continue to strive for a total non-residential tax base between 15 and 25 percent of the Grand List" (page 59). According to Ridgefield Tax Assessor Al Garzi, Ridgefield's 1999 Grand List had the following composition: Residential: 83.5%, Business: 16.5%. Thus we appear to be meeting our tax base goals without the need to develop the Bennett's Pond property.

A second issue is the long term effect of development on the mill rate. According to projections by the Ridgefield Finance Department, Eureka's most recent plan, calling for 200 residences, 250,000 square feet of office space and a 250 room hotel, would have a fair market value of approximately $180 million, when it is fully built out in 2006-2007. This is 3.5% of the projected fair market value of taxable property in 2006-2007, $5 billion. The gross property tax derived from the property would be $3.4 million, or 3.2% of the total budget of the Town. However this figure overstates the tax impact of the project, because new construction requires public services. In support of Eureka's 1999 proposal, Burchell-Listokin Associates estimated additional public costs amounted to 25% of additional tax revenue, not including school expenses. Thus the net benefit to taxpayers is $2.6 million, which would produce a tax rate reduction of 2.4%, if and when the entire plan is built out. The mill rate in 2006-2007 is projected to be 32.06, and 2.4% of that is 0.8 mills.

The bottom line is quite simple: we receive a net tax benefit of $2.6 million per year in exchange for the multiple burdens of living with a $180 million project in our midst, while forgoing the benefits of large new state and town parks.

8. Quality of Life and Property Values

Tax calculations do not factor in quality of life issues, such as added traffic burden, community character, or lost recreational and environmental benefits. Ridgefield is far from meeting its goals for open space preservation. The Plan of Conservation and Development says "The objective of the Plan is to achieve a minimum of 30 percent of the total acreage of the town as open space so that 25 percent of the land in Ridgefield is passive open space" (page 32). As of 1999, about 20% of the town's land area was preserved as public or private open space (pg. 32). To meet the goal set forth in the Plan of Conservation we need to set aside another 2,000 acres of the 4,400 acres of vacant land remaining in Town. The 613 acre Bennett's Pond property is the single largest vacant parcel remaining.

More importantly, tax calculations fail to take into account long term trends in the desirability of Ridgefield as a place to live and do business. Conventional wisdom notwithstanding, there is no correlation between equalized mill rate and the intensity of commercial development in the 23 municipalities of Fairfield County. However there is a distinct negative trend in median home sales price with increasing commercial development, which may account for the long-term insensitivity of tax burden to the presence of commercial property. That explains why Easton, Weston and Redding, with scarcely any commercial property at all, have equalized mill rates roughly equal to Ridgefield's.

9. Traffic Generation

Of the many adverse consequences that would result from the development of the Bennett’s Pond property, the most obvious is generation of automotive traffic. Second perhaps only to schools, traffic is the issue of most concern to Ridgefield voters. In fact, when traffic and school concerns clashed, over the use of the Ippoliti property, voters rejected a school that would have made a bad traffic situation worse.

How much traffic will development of the Bennett’s Pond property generate? That of course depends on the magnitude of the development. But as an example, let us consider the smallest development that has been proposed by its owner, Eureka V LLC. This plan, which involved moving Bennett’s Farm Road to the north, would have placed 200 condominiums, 250,000 square feet of office space, and a 250 room hotel south of the relocated road. The plan also included two 10 acre estates north of Bennett’s Pond, adjacent to Wooster Mountain State Park.

According to Eureka’s economic analysis, the office space would employ 1,100 workers and the hotel 350 more. An average of 2.1 persons would live in each of the 200 age-restricted $500,000 condominiums.

The amount of traffic generated by this development plan can be determined using data from the Institute of Transportation Engineers. ITE is an international educational and scientific association of 15,000 transportation and traffic engineers. They periodically publish a three-volume compendium of traffic studies, Trip Generation, from which ROSA derives its traffic estimates.

According to the ITE, a typical condominium unit generates 5.86 trips per day – one imagines one round trip by the husband and two by the wife, or vice versa. A general office building generates 3.32 trips per day per employee – equivalent to a round trip each day plus a noon errand every other day. A hotel generates 8.23 trips per day per room. This last figure is somewhat hard to understand, but it does include employee trips. Using these figures, we find the condominiums generate 1,172 trips per day and the office buildings generate 2,652 trips per day. The ITE figures suggest the hotel generates 2,058 trips per day, but a more cautious estimate is 1,000 trips per day. Thus this smallest of Eureka’s plans would generate more than 4,800 automobile trips per day.

These figures may be put in perspective by examining the Connecticut Department of Transportation 1999 Traffic Volumes. Route 7, between Route 35 and Miry Brook Road, carries 30,500 vehicles per day. Route 35, between Branchville Road and Catoonah Street, carries 13,400 vehicles per day. Thus the minimum proposed development will impose a very significant additional burden on the local road system.

10. Dual Petition Strategy

The property is large enough to provide substantial acreage for both preserved open space and active recreational and municipal uses. Bennett’s Farm Road is a natural dividing line between 458 acres to the north and 155 acres to the south. The North parcel includes Bennett’s Pond itself and most of the wetlands, and is adjacent to Pine Mountain and Hemlock Hills Preserves and Wooster Mountain State Park. This is the part most important to preserve in its natural state. The South parcel, although it has many steep areas, can accommodate such municipal uses as playing fields and a school. Because the proposed uses of the North and South parcels are not necessarily identical, the petition language is different.

There is some sentiment in town to preserve part of the property as open space, and allow commercial development on the other part. Therefore ROSA deliberately decided not to bundle purchases of the North and South parcels into one ballot proposition. The petition information leaflet suggests how voters can express this choice, either by signing only one of the petitions, or by voting for one proposition and against the other at referendum.

ROSA strongly believes the will of the people should be heard. Therefore we wish both propositions to appear on the ballot. There appears to be broad agreement on this: 98% of the 2,674 citizens who signed the North parcel petition also signed the South parcel petition.

11. Public Opinion

The nearly 2,700 signatures on each petition came from all over Ridgefield. Similarly, ROSA’s financial supporters live in all parts of town.

Two surveys conducted in the summer of 2000 show that open space preservation is a top priority of Ridgefielders. Open space-related activities ranked at the top of the Parks and Recreation Needs Assessment Survey. More surprisingly, a survey of the Ridgefield Chamber of Commerce membership found 47% of respondents wanted to preserve the Bennett's Bond property as open space, with the other half approximately equally divided between residential and commercial development. The same week that survey was publicized, Betsy Weber, chair of the Chamber's Economic Development Committee was quoted as saying "The traffic through Ridgefield streets has become unbearable for many merchants. Their customers can't get to them." There is a clear connection in Ridgefielders’ minds between excess development, suburban sprawl, and traffic congestion.

Neighboring towns are acquiring open space as rapidly as possible. In the last two years Danbury, Redding, Wilton, Brookfield, and six towns in upper Westchester County have appropriated large sums for open space acquisition. When on the ballot, these measures have generally attracted between 66% and 90% majorities in favor of spending money for open space. Based on the response to our public outreach efforts we expect a similar majority in Ridgefield, if the petition questions are allowed to appear on a ballot.

12. Summary

The purchase of property for open space is an act unique in its gravity and scope. Generally speaking, deferred municipal expenditures may cause inconvenience, and may lead to greater expenditures in the long run, but they are rarely irreversible. For example, the failure to build a school may cause temporary overcrowding, but the problem can be solved in a later year.

The decision we as a town make about the future of Bennett’s Pond is of essentially a different character. A decision now to ignore the costs and risks of high density development is irreversible - there will be no opportunity to change our minds in the future, after the dense development of condominiums and office buildings is built and its traffic floods our roads.

Even if the developers are delayed indefinitely by citizen action before the Planning and Zoning Commission, the town will pay a price in litigation, and the certain loss of $4 million to $5 million in state aid available to buy the property now. Every town around Ridgefield has an active open space acquisition program, and every one of those towns covets that appropriation.

Eminent domain seems like a risky and unpleasant process, though in fact it is used routinely by the Department of Transportation. Because a judge sets the level of compensation, some say we cannot predict how much we will have to pay the present owner. However recent Connecticut case law sets down clear and simple principles that govern this process, and all recent appraisals of the property fall within a narrow band.

The risks of inaction must be considered. Many of our citizens have moved here from lower Westchester County, Long Island, or New Jersey. They tell us they came here to escape the endless waves of development that have swept over their former communities. Traffic congestion and strangulation of town centers have led to falling real estate values and a decline in local business environments.

Against these costs we weigh the benefits of opening the Bennett’s Pond property to dense development: a fraction of a mill reduction in the projected tax rate. Is this a good deal or a bad deal? That is a matter of judgment, a question that only the people who will be affected - the citizens of Ridgefield - can answer.

9 January 2001