Smart Growth for Vernon, CT
Developers press for wetlands decision on Home Depot plan

By Jason Rowe
Journal Inquirer
July 15, 2005

VERNON — Developers who want to build a Home Depot near exit 67 off Intestate 84 have asked a Superior Court judge to order the town's Inland Wetlands Commission to sign off on the project.

Last month, lawyers for Diamond 67, a limited-liability corporation looking to develop the store, filed court papers seeking an injunction against the town's IWC.

The commission has held two special meetings to discuss the Home Depot application since March 18, when Judge Jane S. Scholl sustained an appeal by Diamond 67 and vacated the commission's August 2003 rejection of the Home Depot proposal.

Lawyers for both sides are scheduled to appear July 27 in Superior Court for a hearing, officials said.

In its complaint against the town, Diamond 67 argues it has suffered "irreparable injury" by the town's failure to grant a wetlands permit.

"Such failures are continuous and recurrent and, unless restrained, will continue," the developers argue in court papers.

In addition to asking a judge to order that a wetlands permit be granted, Diamond 67 is seeking damages in excess of $15,000 and lawyers' fees.

Diamond 67, made up of the Hayes Corp. of Manchester and C.E. Vernon LLC of Fairfield, had proposed building a 117,000-square-foot Home Depot store and a 28,713-square-foot garden center at 117 Reservoir Road, the former home of the New England SportsPlex.

The IWC denied the application after eight nights of public hearings between May 6 and July 30, 2003, which drew dozens of residents, most of whom opposed the project based on what they said were environmental concerns.

Commission members took issue with the developer's contention that an on-site septic system would be sufficient to handle the amount of sewage produced by the large home-improvement store slated for the 14.7-acre site, which is zoned for commercial development.

The commission's unanimous vote to reject the application was met with cheers, hugs, and a standing ovation.

In her March ruling, Scholl said the commission failed to find an adverse impact from the project, which is required by law in order for the commission to issue a denial.

Scholl then sustained the appeal and sent the matter back to the commission for further consideration.

Since that time, the IWC has held the two special meetings to discuss its response to the ruling.

In addition, the commission has scheduled nine special meetings, which will be held on the second and fourth Thursday of each month through the end of the year, Town Planner Thomas J. Joyce said.

Harold Cummings, who is serving as special town counsel during this case, said the town disagrees with Diamond 67's contention that the judge's decision ordered the town to grant a wetlands permit.

Under state law, Cummings said, the wetlands commission is the agency charged with granting wetlands permits and, while a judge can vacate a denial for legal insufficiencies, he or she can't order the town to grant an approval.

"We're doing what we think the judge has told us to do," Cummings said. "I think this case has the potential for statewide precedent. We are really trying to clarify the boundary between what is the discretion of the Inland Wetlands Agency and what is the authority of the judge to order them to do something."