Judge: Lawsuit over failed Costco deal in Branford to go to trial

BRANFORD — The former co-owner of Hilltop Orchards, Wayne Cooke, would have been part of a deal estimated at more than $5 million to let Costco develop his land and bring the big-box store to town in 2015. But during the town’s review process, Costco withdrew its application.

Cooke claims that two town officials caused Costco to withdraw in retaliation for his past criticism of them, and he sued those officials in federal court in 2019.

Now, a U.S. district judge has said the matter will go to trial, where a jury will review three of Cooke’s four claims in the suit.

“We’re very grateful for the fact that this is now going to a jury of Mr. Cooke’s peers where they can make a determination concerning the merits of the claims brought by Mr. Cooke,” said the lawyer representing Cooke, Timothy Herbst.

The defendants in the case are Daniel Shapiro, former chairman and member of the town’s Inland Wetlands and Watercourses Agency, and former town Inland Environmental Director Diana Ross.

Cooke claims they denied or played a role in denying Costco’s application for development, according to a summary judgment decision ordered by United States District Judge Victor A. Bolden on Dec. 8.

“I was disappointed the court didn’t dismiss all the motions and they wish to find more facts,” Shapiro said.

Ross declined to comment on the case.

The Costco application had been approved by the town’s Planning and Zoning Commission in 2015. It then went to the Inland Wetlands Commission, but Costco withdrew its application before the commission made a decision on the permit, saying it had concerns with the way the application was being reviewed by wetlands staff.

The summary judgment decision says the wetlands commission hired an engineering firm to conduct an independent peer review of the Costco application, but Shapiro and Ross allegedly prevented Costco’s team from meeting with the firm and allegedly requested changes to the report.

Cooke claimed Shapiro and Ross acted in retaliation toward him. He had been asking the town since 2008 to allow commercial development of Hilltop Orchards, which was zoned for industrial use, and expressed opposition to the former administration. Cooke sued town officials for civil rights violations and slander. The town settled for $500,000 in 2014.

The current suit claims First Amendment retaliation. Herbst alleged the Inland Wetlands Commission peer review was manipulated in order to stop the project from going forward, which would damage Cooke by making him lose out on the contract with Costco.

The suit also claims tortious interference with business expectancies, saying that Shapiro and Ross interfered with Cooke’s business expectancies by interfering with the peer review report without the knowledge of the rest of the commission or the applicant. The suit also claims civil conspiracy, saying that Shapiro and Ross worked together. The suit’s equal protection claim was thrown out.

Herbst said the trial will take place in March 2024.

“We’re very happy that Mr. Cooke’s going to have his day in court,” Herbst said.