Smart Growth for Vernon, CT
Home Depot developer sues town over reaffirmation of project denial

By Jason Rowe
Journal Inquirer
December 22, 2005

VERNON — The developers of a proposed Home Depot in the northeast section of town have again sued the Inland Wetlands Commission, saying the board's reaffirmation of a previous denial of their application was improper.

This month, the commission reaffirmed its August 2003 denial of a wetlands permit for Diamond 67 LLC, the developer that wants to build the 117,000-square-foothome improvement store on 14.7 acres near Interstate 84 exit 67, formerly occupied by the New England SportsPlex.

That decision was the latest step in a legal battle over the site, which began when the commission rejected Diamond 67's application for a permit following eight lengthy public hearings between May 6 and July 30, 2003.

The developer appealed the commission's denial and Superior Court Judge Jane S. Scholl vacated that decision in March.

She concluded that the commission had failed to find an adverse impact from the project, a legally required condition for rejection.

Scholl sent the matter back to the wetland commission for further consideration, and commissioners spent weeks poring over testimony from the public hearings.

On Dec. 6, the commission adopted a 14-page decision outlining its reasons for rejecting the wetlands permit.

But the store's developer is asking the court to overturn that decision, saying the commission acted illegally by failing to approve an application that met the town's wetlands regulations.

The latest lawsuit was received in the Town Clerk's office on Monday.

In its lawsuit, Diamond 67 said the commission ignored expert testimony relating to the effects of an on-site septic system to nearby wetlands.

The developer also accused the commission of holding closed-door executive sessions on the application, and receiving information from people interested in the denial of the application.

"It denied the application because neighborhood residents opposed the proposed development of the site, even though there were no wetland impacts," wrote Manchester lawyer Stanley Falkenstein, who is representing Diamond 67 in the lawsuit.

A phone message left at Falkenstein's office today was not returned.

Special Town Counsel Harold "Hal" Cummings said today that the outcome of the appeal could have impacts on similar cases throughout the state.

Although he would not predict an outcome, Cummings said the commission worked diligently in trying to respond to Scholl's rulings.

He added that all deliberations relating to the board's final decision were conducted in open session.

"Given the significance of the activity and the investment of all the parties, I am not surprised that the applicant took an appeal," Cummings said. "We are into areas where there isn't clear precedent in previous cases."

In its affirmation of its previous denial, the commission argued that chemicals and sedimentation stemming from the development would affect the characteristics of watercourses and the development would impact surrounding waterways.

The commission also found that the developer could mitigate the damage to surrounding wetlands by connecting the property to town sewers, reducing the size of the proposed structure, reducing the size of the parking lot, redesigning the storm-water drainage system, and eliminating the planned 28,700-square-foot garden center.