COLCHESTER — A judge in Connecticut Superior Court ruled on Friday that the Town of Colchester is able to enter into a contract with the firm BRD Builders for the construction of a Senior Center, lifting a temporary injunction granted earlier this month that prevented the town from moving forward with the project.
In her decision, Judge Karen Goodrow said that the parties requesting the injunction had not proven that the town’s entering into the contract with BRD Builders, the lowest bidder, would cause “irreparable harm” to the plaintiffs.
“There is no evidence that the town has engaged in actions that subvert the voting rights of the residents,” said Goodrow. “There is insufficient evidence that entering into the BRD contract will subvert the voting rights.”
She said that entering into the contract would not violate the town charter because it would not cause the town to appropriate more than the $9.5 million that the townspeople approved for the senior center in a referendum.
“The actual cost of the Senior Center currently does not exceed 9.5 million. The town has not violated the referendum because it has not appropriated more than 9.5 million to the senior center project,” she said.
The temporary injunction was initially issued after Selectman Jason LaChapelle and former Selectman Taras Rudko brought forward a lawsuit against the town after the First Selectman and other selectmen proposed using a combination of a private donation with money from the undesignated fund balance to remedy an overage of nearly $1 million above the $9.5 million set aside for the senior center project in a referendum in November 2021.
LaChapelle argued at a board of selectmen meeting that the town needed to bring the amount back to the voters in an additional referendum in order to comply with the Town Charter. The charter requires that any appropriation of more than three percent of the town budget be approved through a referendum process.
After Selectman Rosemary Coyle wrote in an email that she planned to ask the Board of Selectmen to approve the contract at a Board of Selectmen meeting earlier this month, Judge Steve Jacobs issued a temporary injunction at LaChapelle’s request.
In the hearing, which began on Wednesday and stretched out through Friday, attorney Andrew Zeitlin of Shipman and Goodwin, who represented the Town of Colchester, argued that even if the town were to enter into the contract with BRD Builders for $8.625 million, that cost plus the funds that had been encumbered so far – a total of about $703,000 in fees for the architectural design firm Silver Petrucelli and the project manager Construction Solutions Group — the total amount of money spent would equal $9.3 million — still below the $9.5 million the voters approved.
Zeitlin said that issuing an injunction at this point was “premature” given that the town was not planning at this time to spend more money than was approved during the referendum.
“There is a difference between a budget, which includes projected costs that can change, and actual expenditures,” Zeitlin said.
Goodrow agreed with Zeitlin.
“The projected costs are estimates — i.e., they are by their very nature speculative, and there is no evidence that the town has authorized appropriating more than 9.5 million towards the senior center,” said Goodrow.
Attorney Donald Brown, who was representing LaChapelle and Rudko, implied that signing the contract with BRD would commit the town to following through on a project that would ultimately go over the threshold that was set by the voters.
“A significant number of their constituents and other taxpayers in town are very concerned about the realities of getting involved in construction project where it is highly likely that there will be overages and costs knowing going into it that there’s minimum shortfall … of $976,000 and an even greater amount according to Mr. Stein’s testimony,” Brown said.
Brown argued that the town had been aware of the overages, and that it was not clear how much the town would actually have to spend on the project in “soft costs” — things like furniture, fixtures, legal fees and other expenses outside of the basic construction expenses.
“Aren’t you essentially binding the town to an agreement to build something that actually exceeds the $9.5 million allotment?” Brown asked Senior Center Building Committee Chair Tony Tarnowski during the hearing.
Tarnowski said that the budget document he created was based on estimates, and that the biggest driver of any overages would be an escalation in costs for the construction contract. He also said the budget sheet was updated monthly and that everything on the budget sheet would not necessarily be expended.
First Selectman Andreas Bisbikos said that he had been working with Tarnowski to bring down the cost of the project since the overage was first revealed to the Board of Selectmen and Board of Finance in November. He also said that legal counsel had told the town they could use a $575,000 donation to the senior center project from a private estate as additional funding that could go toward the project.
“I see the [private estate] dollars as a glorified contingency fund,” he said.
Bisbikos also said that Colchester had a “history” of coming in under budget on its projects. He referenced a project at William J. Johnston Middle School which he said came in $4 million under budget.
Tarnowski, Bisbikos and David Stein, a principal at the architectural firm Silver Petrucelli and the project manager for the senior center project, all said that the town might be able to engage in “value engineering” with the firm BRD builders. Stein said this was a fairly common practice that involved changing certain design components without changing the “integrity” of the building — for example, using wood rather than metal or steel for the doors.
But Brown questioned what would incentivize the construction firm to engage in a process that would result in them getting less money overall.
“Value engineering is a fun turn to banter about, but what compels BRD builders to accept further reductions of their lump sum bid?” he said.
Taras Rudko, who was a selectman in the town at the time that the referendum question was created, said that his calculations showed that the project would cost between $10.2 and $10.8 million total, depending on whose estimates you looked at.
“The simple fact is that they are all over … the accepted amount that the taxpayers approved holistically for the sum of the project,” Rudko said.
Selectman Jason LaChapelle said the $900,000-plus overage projected for the project “well exceeds” the threshold in the town charter requiring a referendum. But he said the idea of taking the project back to referendum was “never an option seriously considered.” He said the First Selectman did not want to ask for additional taxpayer funds, and Tarnowski was worried that a referendum would affect the project’s timeline.
Tarnowski said during the hearing that the current bid from BRD Builders would only remain valid until January 11, at which point the town would have to go out to bid again. Zeitlin argued that the injunction itself could actually harm the voters if the new bids came in at a higher cost than the previous ones.
Bisbikos said during the hearing that if the project did come in over budget, he would follow what is stipulated in the town charter — a town meeting if he needs to appropriate funds equal to more than two percent of the town budget, and a referendum if he needs to appropriate funds equal to more than three percent of the town budget.
“If that becomes necessary, then the town will deal with that sometime in the future. We can’t predict the future,” said Zeitlin.