Smart Growth for Vernon, CT
Judge throws sledgehammer on Home Depot lawsuit

By Jason Rowe
Journal Inquirer
August 5, 2005

VERNON — A Superior Court judge has refused to issue an injunction that would have required the Inland Wetlands Commission to issue a permit to developers of a proposed Home Depot on Reservoir Road who are looking to move forward with the controversial project.

The request for an injunction was one of two lawsuits by Diamond 67 LLC, the developers who are looking to develop a 117,000-square-foot Home Depot store on the site of the former New England SportsPlex near Interstate 84 exit 67.

Developers said they filed the lawsuit in an attempt to stop the wetland commission from holding further deliberations on the application's fate, unless those discussions were directly related to granting the developers a permit.

Last month, the court rejected the developers' first lawsuit asking that she order the commission to issue a permit for the project.

But the court did not rule on the injunction during the July 27 court hearing, requesting more time to consider arguments from lawyers on both sides.

In the decision Wednesday, the court ruled that Diamond 67 does not have a right to have their application granted.

The court also added that the developers could seek action by the Department of Environmental Protection commissioner should they be unsatisfied with the commission's final decision.

"The plaintiff's claim that the commission has no authority to reconsider their application," the court ruling states. "However, even without such direction, once an appeal is sustained, it is the

duty of the commission to proceed according to law whether or not the court specifically directed it to do so. Thus the holding of further meetings regarding the application is not inappropriate."

The effort to construct a Home Depot on a 14.7-acre site at 117 Reservoir Road ran into a roadblock in August 2003 when the wetland commission rejected the developers' application for a permit.

That decision came after eight lengthy public hearings on the project held between May 6 and July 30, 2003.

The development would have also included a 28,713-square-foot garden center.

In rejecting the application, commission members cited concerns about the adequacy of an on-site septic system, which would have been relied upon to handle sewage from the large retail store.

Diamond 67 filed an appeal of the commission's decision soon after the rejection, and on March 18, the court vacated that decision saying the commission failed to find an adverse impact from the project, which is required by law in order to make a denial.

The court sustained the appeal and sent the matter back to the wetland commission for further consideration.

Since that time, the commission has held three special meetings and has scheduled nine more meetings beginning on Aug. 11 and continuing through the end of the year.

In filing the lawsuits, 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, causing their clients "irreparable injury" from the failure to grant a wetland permit.

Harold Cummings, a lawyer who is serving as special town counsel in the Home Depot case, has said that Scholl's ruling on this matter could set statewide precedent because, in the past, state law has said that a judge cannot order a wetlands commission to grant a permit.

Amy Blaymore Paterson, a lawyer who represented three opponents with intervenor status during the process, said the court's ruling would allow the commission to continue with its deliberations on the Home Depot matter.

Stanley Falkenstein, a Manchester-based lawyer who represented Diamond 67 during the case, would not comment on the court's ruling when reached by telephone today.