It was a classic “rat,” a legislative favor added without public notice to a massive budget bill at the end of the General Assembly’s 2023 session. The purpose: Block construction of a large warehouse on a bucolic former corporate campus near a legislator’s home in Middlebury.
Two years later, lawyers for the would-be developer allege in a federal lawsuit that the legislation targeting his project and overruling local zoning was unconstitutional, a “brazen” violation of the equal protection clauses of the U.S. and Connecticut constitutions.
The lawsuit filed in U.S. District Court on behalf of Southford Park LLC, the owner of the targeted property, seeks millions of dollars in damages from Middlebury, claiming the Waterbury suburb illegally relied on the unconstitutional language to stop the project and devalue the land’s worth by 90%.
The General Assembly, which generally has immunity against claims for civil damages, is not a defendant, but the behind-the-scenes actions of lawmakers could come under rare scrutiny as the claims against Middlebury are pursued.
“We think that the intent that legislators had and the process that they followed to enact the statute is going to be relevant to those claims,” said David R. Roth, a partner with the law firm, Wiggin & Dana.
Roth filed the suit on behalf of Southford Park — whose principal is David Drubner — and an adjacent property owner, Route 188 LLC. Assisting Roth is Jed Rubenfeld, a constitutional scholar on the faculty of Yale Law School.
The suit asks the court to consider the “rat,” the colorful term for a favor snuck into an unrelated piece of legislation, an “abuse of the legislative process” that “arbitrarily and irrationally deprived Southford Park and Route 188 of their protected property interests.”
Together, the lawsuit says, damages could exceed $27 million.
Drubner had a contract to sell the site for $25 million, contingent on final zoning approvals for what he called “an intermediate storage warehouse,” to Flint Development of Kansas, a builder and operator of industrial logistics facilities. The rat and Middlebury’s subsequent denial killed the deal, he said.
Neither Drubner nor Flint had a tenant lined up for what opponents had mischaracterized as a distribution center akin to an Amazon fulfillment facility Drubner said.
“They’ve characterized this as a distribution center like the Amazon thing. We specifically do not have approval for that. It’s just an intermediate storage warehouse,” Drubner said.
Defendants in the lawsuit include Middlebury, its Zoning Board of Appeals and zoning enforcement officer, and its new chief elected officer, First Selectwoman Jennifer A. Mahr, who easily won the open seat last month as an unaffiliated candidate in a three-way race against a Democrat and a Republican.
Mahr is being sued only in her official capacity — as are the other individual defendants — meaning any liability rests with the town of 8,000 residents. But she has had a prime role in thwarting Drubner’s project as a founder of the Middlebury Small Town Alliance, a group that sued the town to stop the project.
She could not be reached for comment about the lawsuit, which was filed Thursday and was expected to be served Monday on Middlebury. Her long-serving predecessor, Edward B. St. John, a Republican who supports the Drubner project as needed to expand a limited tax base, declined comment on the litigation.
Rep. William Pizzuto, R-Middlebury, acknowledged to the Connecticut Mirror two years ago he sought the legislative intervention as his neighbors and other opponents failed to stop the project through more conventional means, including an appeal of the local planning and conservation approvals in court.
He said Friday he sees nothing wrong in the General Assembly involving itself in a local zoning controversy after local options were exhausted.
“I don’t think anything was done improperly, except to say we’re here to represent the people of this town,” said Pizzuto, who lives about 100 yards from the bottom of the long drive leading to the proposed construction site, the former corporate headquarters of the Timex Group.
As Pizzuto acknowledges and the plaintiffs’ lawyers assert, the one-sentence rat now ensconced as Section 8-3m of the Connecticut General Statutes was drawn to block Southford Park without naming it.
“By design, on the date it was enacted into law, the text of § 8-3m fit the Southford Road Warehouse Project like a glove, because the statute was enacted precisely and specifically to block the Project,” the lawsuit reads.
The language bans communities with populations between 6,000 and 8,000, as determined by the 2020 census, from permitting any warehouse or distribution facility exceeding 100,000 square feet on any site that is smaller than 150 acres, has more more than five acres of wetlands and is within two miles of a school.
While the estimated population of Middlebury now could exceed 8,000, the 2020 census pegged it as 7,574. The size of the site and proposed facility fall within the parameters, it had 7.2 acres of wetlands as originally proposed, and is within one mile of a school.
The lawsuit says “the statute arbitrarily combines a hodgepodge of wholly unrelated factors and criteria” with no rational purpose.
It notes the only use banned by Section 8-3m are warehouses and distribution centers, not presumably more impactful things such as “chemical production facilities, pharmaceutical production facilities, bus terminals, truck terminals, pig farms, oil refineries, leather tanning facilities, prisons, commercial dry cleaning facilities, sewage treatment facilities, or even nuclear waste storage facilities.”
The references to wetlands and a school are similarly suspect, the suit says, as the language ”would permit any of these intensive, dangerous, environmentally hazardous facilities to be approved on property consisting entirely of wetlands located right next door to an elementary school.”
Keith R. Ainsworth, the lawyer who successfully sued to block the project on behalf of the Middlebury Small Town Alliance, said Section 8-3m will be judged by whether it meets constitutional standards, not the messiness or machination surrounding its origin story.
“The Constitution doesn’t regulate how the legislature formulates its rules. It just looks at, ‘Is the rule compliant with the Constitution?’ Whether the legislature does it with some robust debate, or they don’t do it with a debate, or they do it through some clunky legislative process, that’s not subject to question,” Ainsworth said.
The process doesn’t have to be pretty, he said.
“I mean, we as citizens may look at that and go, ‘That’s a crazy-ass way to make laws.’ And that’s a legitimate way to feel about it,” Ainsworth said.
Ainsworth said even if the law is deemed unconstitutional, demanding damages from Middlebury is overreach, “a money grab.”
“If you take as face value that the law is unconstitutional, they may well be entitled to injunctive relief, but to say that the town is now liable for damages for following the law seems to be” without basis, he said. “They didn’t illegally apply the law. They applied the law as it was written.”
There is precedent for striking down a Connecticut law aimed at blocking a specific project. In 2001, the Connecticut Supreme Court found that an environmental law drawn in 1997 to stop the expansion of a recycling facility in Stamford had no rational basis and violated constitutional equal protection standards.
As originally drafted, the Middlebuy rat — that would have applied to any community with fewer than 8,000 people — prompted a furious complaint from Rep. Tami Zawistowki, R-East Granby. Her town of 5,215 would have been affected, killing the potential development of distribution facilities in a community close to Bradley International Airport.
Zawistowski said she wanted the entire rat killed. Instead, it was revised to limit its reach by exempting communities of fewer than 6,000, sparing East Granby and dozens of other small towns. A distribution center has since been proposed on a site in East Granby similar to the one in Middlebury, unaffected by 8-3m because its population was 785 people shy of 6,000 in the 2020 census.
Who precisely drafted the language never was publicly disclosed, and the lawsuit might test whether the constitutional notion of legislative privilege protects lawmakers from disclosing the origin.
Pizzuto has acknowledged asking House Minority Leader Vincent J. Candelora, R-North Branford, to help stop the project with a line inserted in the budget. Candelora said legislative privilege should not be asserted.
“I don’t think we should be hiding anything,” Candelora said.
Candelora said at least one of the two state Capitol lobbyists who live in Middlebury spoke to him about it, but no one has claimed authorship. To get the line in the budget required the assent of the governor’s staff and the four legislative caucuses.
Candelora said he was sympathetic to Pizzuto and his constituents, because the project required a text change — lifting the height limit in Middlebury’s industrial warehouse zone from 35 feet to 50 feet — and he believed that local zoning authorities too readily make text changes without public input.
“I think there always is a tendency to solve issues,” Candelora said Friday of the legislative action. “I don’t think the legislature acted with malice.”
Drubner’s project would redevelop the former headquarters of the Timex Group, a corporate descendant of the Waterbury Clock Company, founded in 1854. Timex sold the 93-acre site to Drubner and another entity in 2023 and moved to its present leased headquarters in Shelton.
Timex built the hilltop headquarters, dubbed Watch Hill, in 2001, about the same time that homes were popping up nearby on what had been farmland and hardwood forest, creating a constituency that later would prove unhappy with changes to the site. The Timex building was set into a drumlin, an elongated hillside formed by a retreating glacier.
It won plaudits for its architecture and sensitive landscape design, and a newly created group, Save Historic Middlebury, filed an application last year to place the site on the National Register of Historic Places. It was denied, falling short of the 50-year age typically required to be considered a historic place.
Drubner’s plan calls for demolition of the building. With a moribund commercial office market, there is little demand for an iconic corporate headquarters on a sprawling suburban campus. Similarly, a larger complex vacated by a downsizing IBM in neighboring Southbury has not found a buyer.
Drubner thought he had found a workaround to Section 8-3m. By downsizing the proposed facility, originally planned for about 720,000 square feet, to 669,000 square feet, the developer also could shrink the land necessary for the buildings, drainage and parking.
After making lot line adjustments, the construction site had 77 acres and only 3.8 acres of wetlands — under the five-acre wetlands reference in 8-3m.
Middlebury Small Town Alliance and several individuals challenged the legitimacy of the change made by Drubner.
“He irrationally subdivides the property and cuts out the wetlands so that doesn’t apply,” Ainsworth said. “So, he was playing exactly the same game that he’s now saying was inappropriate.”
On Jan. 31, 2025, a Superior Court judge agreed, ruling that the limits imposed by 8-3m still applied to the project. Mahr, who had been elected to the Board of Selectmen in 2023, running on her opposition to Drubner, opposed the town filing an appeal.
Her critics alleged a conflict of interest, and the local ethics commission later agreed. Mahr, in a business filing to the secretary of the state’s office on Nov. 26, notified the state she no longer was a managing member of the entity that sued the community she now leads.
Last month, Middlebury’s zoning enforcement officer denied final approval of Southford Park. The explanation, according to the lawsuit, was “while the Project was fully entitled to approval under all other applicable law, it could not be approved under § 8-3m.”
Southford Park LLC appealed the Superior Court decision to the state Appellate Court on Dec. 8, saying the judge misread the law. It is now asking a federal court to strike down 8-3m in its entirety.