Judge rejects Home Depot developer's appeal
By Jason Rowe
VERNON —The developers of a proposed Home Depot near exit 67 off Interstate 84 suffered a setback Wednesday when a Superior Court judge refused to order the town's Inland Wetlands Commission to issue a permit for the controversial project.
Lawyers representing Diamond 67 LLC, the developer of the proposed 117,000-square-foot home improvement store, had asked Judge Jane S. Scholl to order the commission to grant the permit and issue an injunction against the commission, barring it from future deliberations not relating to the granting of a permit.
On Wednesday, Scholl refused to order the commission to issue a permit.
But Scholl did not rule on the second lawsuit, the one involving an injunction, saying she needed more time to consider arguments from lawyer's on both sides.
Although rulings are generally issued within 120 days of a hearing, Scholl's decision won't likely take that long, said Harold R. Cummings, a lawyer who is serving as special town counsel in this matter.
The effort to construct a Home Depot on a 14.7-acre site at 117 Reservoir Road hit a snag in August 2003 when the wetlands commission rejected the developer's application for a permit after eight lengthy public hearings held between May 6 and July 30, 2003.
The development, which was slated for the site of the former New England SportsPlex, would have also included a 28,713-square-foot garden center.
In rejecting the application, wetlands commissioners 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 store.
Diamond 67 filed an appeal of the commission's ruling in September 2003, and on March 18 Scholl vacated the decision, saying the commission failed to find an adverse impact from the project, which is required by law in order for the commission to make a denial.
In her decision, Scholl sustained the appeal and sent the matter back to the commission for further consideration.
Since that time, the commission has held three special meetings to discuss its response to the ruling and has scheduled nine more meetings through the end of the year, Cummings said.
The commission's next meeting to deliberate the Home Depot ruling is scheduled for Aug. 11.
In court papers, lawyers for Diamond 67 argued that the commission is delaying the project while it sifts through 22 volumes of transcripts and documents from prior hearings, which has resulted in their client suffering "irreparable injury" from the town's failure to grant wetlands permit.
Richard Hayes Jr., a principal with Diamond 67, has testified that the company pays between $5,000 and $10,000 a month to the property's owner under the terms of an option agreement on the site, according to published reports.
In responding to the lawsuit, Cummings disagreed with Diamond 67's contention that the judge's decision ordered the town to grant a wetlands permit.
Cummings said today that the case is complicated because state law does not require wetlands commissions to act within a specific time frame.
"There is nothing in the law that says if the wetlands commission does not act in a certain period of time, then it is approved," Cummings said. "The judge should not become a wetlands agency herself or himself by suddenly making wetlands decisions."
Cummings has said that the case has this potential for setting statewide precedent because, in the past, state law has said that a judge cannot order a wetlands commission to grant a permit.
"I think we are breaking a little new ground in some respects," Cummings said today.