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Seaside project foe calls contract unenforceable

By Tess Townsend

Publication: The Day

Published July 04. 2014 4:00AM

Waterford - Retired land use attorney Francis Pavetti has asserted in a letter to the Waterford Planning and Zoning Commission that the state's contract with Mark Steiner, its preferred developer for the property of the former Seaside Regional Center, is unenforceable.

State officials disagree.

Pavetti's letter, filed last week in opposition to Steiner's request for amendments to the zoning regulations for the Seaside Preservation Zoning District, states that the October 2010 contract has expired under provisions of state general statute Section 47-33a, which pertains to sales of real estate.

The law states that an agreement for the sale of real estate will not survive "longer than one year after the date provided in the agreement for the performance of it or, if the date is not so provided, longer than eighteen months after the date on which the agreement was executed," unless the parties sign the agreement again or take action to enforce the agreement before it expires.

"It's not a good policy to have property tied up for long periods," said Pavetti, who in the 1980s served as chairman of the Connecticut Bar Association's Planning and Zoning Section. Pavetti lives on The Strand, a road near Seaside.

Steiner has proposed changing the zoning regulations of the state-owned Seaside property off Shore Road to allow for construction of an inn and privatize the roads inside the prospective condominium and resort development. His proposal is currently being heard by the Waterford commission.

Pavetti argues that depending on how the contract is read, either the contingencies for closing the sale were met years ago, or the contract has no deadline and the state law forces one. In either case, he believes that the contract has expired.

Department of Administrative Services Commissioner Donald DeFronzo and DAS Staff Counsel Jeffrey Beckham say that the law Pavetti references - a general law pertaining to sales of real estate - does not apply to the contract.

DAS inherited the contract from the Department of Public Works and is now administering the sale of Seaside. The contract is the state's second with Steiner. The first contract, executed in the early 2000s, was canceled under former Gov. M. Jodi Rell.

DAS maintains that a law that specifically covers the transfer of state land, Section 4b-21, supersedes the more general law Pavetti references in his letter. Beckham said that it is standard for a law that applies to a specific situation to trump a more general law that also could apply.

"Each state agency has a set of statutes that are developed specifically for what they do. In this case, we have a specific statute that governs our work in surplus property, and that's what we're required to follow," said DeFronzo.

The law for state land outlines the procedure for state entities to grant approval to the purchase, sale or exchange of state land.

"Even if 47-33a were applicable, we would not for a moment conceive that it means we have an unenforced agreement," said Beckham.

Beckham has previously pointed out a typo in the contract that makes it appear the timing of closing is contingent on DAS getting approvals from various state agencies, when in fact, closing is contingent on Steiner deciding he has enough approvals and permits from the town to pursue his desired development project.

"Subject to other terms of this Agreement, the closing shall be held on the date which is sixty (60) days following Purchaser's receipt of its approvals pursuant to Section 11 below," states Section 4 of the contract.

Section 11 refers to state agency approvals. Beckham has said that Section 10, which relates to town approvals, should actually be referenced.

DAS received its last needed approval from state agencies in April 2011 and in November 2011 notified Steiner of various typos including the one pertaining to the approvals, according to documents DAS has provided The Day.

DeFronzo said that such errors are common and also occur when state legislators pass laws. He said that in context, it is clear that the reference to the contingency of closing is clearly an error.

"These are what we consider technical corrections," he said.

Pavetti said he believed a typo significant enough to apparently change the contingencies of closing would be unlikely.

"It was a very carefully drafted section," he said.

He said that, assuming there is such a typo, "It doesn't pull the chest out of the fire."

If closing is contingent on Steiner getting approvals from the town, then the contract doesn't even have a deadline, according to Pavetti. The process for Steiner to get approvals is too open-ended, he said.

Pavetti also pointed to a section of the law for state property, which he said prevents that law from superseding the more general law: "No provision of this section shall be construed to limit, supersede or repeal any other provision of law relating to the powers or duties of any state agency."

"I believe that my position is very strong in terms of the law," said Pavetti, who has worked as an arbitrator since he retired in 2002.

He said later, "This is not my first foray into being a public advocate."

In the 1970s, Pavetti was involved in opposing the realignment of Great Neck Road. Day archives refer to him as representing neighbors opposing the realignment as an attorney, but Pavetti said that he was just generally involved in opposing the project. The Board of Selectmen ultimately rejected the realignment.

Pavetti also recalled writing a brief in the 1990s that asserted that former Gov. Lowell P. Weicker Jr.'s proposal to build an amphitheater at Harkness Memorial State Park would violate the trust by which the park was granted to the state. The amphitheater was never built.

Beckham said of disputes over the contract, "This is a topic that may end up in some sort of legal battle."

t.townsend@theday.com

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