East Windsor claims plausible deniability in contract dispute

The Town of East Windsor has yet again come under fire from residents on Facebook in response to its handling of a lawsuit, with this suit alleging the Town has broken a verbal agreement it made with a local business owner. In a court motion filed last Friday, the Town offered a defense in which it neither confirmed nor denied entering into the agreement, with the caveat that even if it had, the agreement would not hold any legal authority.

The suit was originally filed this April by Windsor Show Stables Inc. a horse stable located on Abbe Road, across the street from Scout Hall. The original complaint alleged that several Town officials met with Garrison Hudkins, a representative of the plaintiff, on March 3, 2023, to discuss the town’s recent variance application submitted to the Town’s Zoning Board of Appeals on Jan. 27. The zoning variance requested permission for the Town to replace the lights on Scout Hall’s soccer field with 70 ft lights, as the limit per the Town’s own zoning regulations is set at 25 ft. This concerned the plaintiff, as the tall lights could potentially spook the horses held in their stables.

“Horses may injure themselves out of distress when they encounter startling external factors, such as artificial lighting at night and the mechanical noises frequently associated with evening sporting events,” reads the suit. “No one is regularly present at the stables after dark to tend to distressed horses, which increases the risk of fatal injuries to the valuable animals if they come into contact with unnatural stimuli, such as soccer field lighting and evening crowd noises.”

The suit alleged that Hudkins met with Jason Boswza, Town First Selectman, Ruth Ann Calabrese, Town Director of Planning and Zoning, and Joseph Sauerhoefer, Town Deputy Director of Public Works and Deputy Tree Warden. Jay Ussery, a land surveyor with J.R. Russo and Associates, was also present at the meeting. At this meeting, Hudkins explained the plaintiff’s concerns surrounding the potential for the lights to spook and possibly injure their horses, and the two parties came to a verbal agreement.

The suit alleges that Town officials agreed to cease their use of the lights no later than 9 p.m., to not rent the property to third parties, and to limit the frequency of their usage to more than ten times per month and no more than two consecutive weekends. In exchange, the plaintiff agreed not to object to either the Town’s zoning variance or site plan applications.

The plaintiff respected their end of the agreement, refusing to object to either the variance or site plan application meetings. The suit alleged that at the time of the variance application meeting, held on March 6, that Melissa Maltese, Director of the Town’s Recreation and Community Services, requested that her department be allowed to keep the lights on until 10 p.m. and be able to rent the property to third parties.

“[The] plaintiff trusted that – despite the comment by Maltese – the negotiators [officials present at the meeting] would see that the Town abided by the agreement,” reads the suit.

At the site plan meeting, held on March 28, Calabrese submitted a memo stating that it was previously agreed upon to shut the lights off by 10 p.m. instead of 9. This meeting was not open to members of the public, yet Ussery was in attendance. The suit alleges that Ussery voiced the plaintiff’s original request that the lights be shut off by 9 p.m., but that the 10 p.m time was approved regardless.

“All of the negotiators were present at the site plan hearing,” read the suit. “None of the negotiators corrected the record or notified the commission of the agreement or the conditions. The site plan application was approved by the commission with no restrictions regarding the timing of light usage, or the rental of the property.”

The suit further alleges that the use of the 70 ft light poles have since negatively impacted the plaintiff’s stabled horses.

“The horses in the stables are disturbed, and will continue to be disturbed, by the unexpected and unnatural lighting,” reads the suit. “Plaintiff has detrimentally relied on the agreement, and has suffered damages because it will never again have the opportunity to present evidence and legal arguments regarding the variance application and site plan application.”

The plaintiff alleged promissory estoppel, which essentially means the breaking of a promise that is considered enforceable by law, breach of contract and unjust enrichment.

On July 12, the Town filed a motion to strike the suit and submitted a memorandum. The memorandum called the suit against the Town “fatally flawed” because it fails to consider that any of the officials allegedly present at the meeting with Hudkins were not in a position to make a binding agreement, even if they were to act as though they did.

“A town employee having apparent authority, or even holding himself out to have authority to bind a town, is insufficient to bind a town to a contract,” reads the memorandum. “Only actual authority is effective to bind a town to a contract. Here, none of the individuals who purportedly made the promise that plaintiff alleges bound the Town to an agreement with plaintiff, had actual authority to contract on behalf of the Town.”

The memorandum also goes on to state that the plaintiff can not establish that there was ever a binding contract, that any such contract would have to have been approved by the Board of Selectmen, and that even if an agreement was entered into, the Town is “legally incapable of binding the Zoning Board of Appeals to take action since they are separate legal entities by statute.” At no point in the memorandum does the Town deny that the meeting took place, nor does it confirm it, repeatedly using language such as “allegedly” and “purportedly” before any mention of the supposed meeting or agreement.

Neither Bowsza nor Selectman Keith Yagaloff could be reached for comment, though Yagaloff offered his opinions in replies to the original post.

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