Smart Growth for Vernon, CT
Vernon Wetlands Commission sued over proposal's rejection

By Jason Rowe
Journal Inquirer Staff Writer
April 14, 2006

VERNON - The owners of a Grier Road property have sued the town's Inland Wetlands Commission saying the board's March 28 rejection of a proposed subdivision on their land was improper.

Mark and Susan St. Germain, the owners of the 32-acre parcel, filed the lawsuit earlier this week in Superior Court.

The lawsuit, which was received by the town clerk on Tuesday, accuses the board of acting illegally and arbitrarily when it unanimously rejected an application by developers Capstone Builders Inc. to construct 18 single-family homes on the property.

Capstone had been seeking permission to construct a detention basin on the site that ultimately would have discharged into a wetland area.

But several commission members said they felt uncomfortable about granting Capstone permission to construct the basin.

Among the reasons cited was the possible existence of a vernal pool on at least two of the building lots.

Vernal pools are water bodies that aren't always filled with water, but tend to be full in the spring and early summer, and support some necessary stage in the life cycle of animals such as wood frogs, fairy shrimp, and mole salamanders.

The proposed development stirred up controversy among neighbors on nearby Cubles, Grier, and Anchorage roads, who spoke against the plan.

There was also conflicting testimony among experts brought in by both the applicant and the opponents.

The lawsuit, which was prepared by local lawyer Joann Paul, argues that the commission reached its decision despite evidence that nearby wetlands would not be harmed.

"Although the applicant, on behalf of the plaintiffs-appellants, presented substantial evidence, the commission's action was unsupported by the evidence or was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record," Paul wrote.

"The commission improperly substituted its judgment for the judgment of the various expert witnesses," she continued.

The lawsuit also contends that the commission accepted information after the close of the public hearing and as a result deprived the applicant of an opportunity for rebuttal.

In addition, the suit contends that the commission failed to follow the wetland boundaries it set during its 2003 redesignation of the wetland area in question.

Some commission members are also accused of holding a meeting on the property without public notice.

Prior to the commission's vote, commission members said they individually walked the property where they found the potential vernal pool.

At least two commission members said they went to the site together, but added that the presence of two members does not constitute a quorum.

The St. Germains and Capstone ran into trouble with their proposal almost immediately last spring when the wetlands commission issued a cease and desist order against the developer after neighbors complained that a series of trenches dug on the site caused silt to be discharged onto wetlands.

Capstone said the trenches were built to test groundwater.

The cease and desist order was lifted a week later, after Capstone agreed to limit the escape of silt from the trenches.

The developer also agreed to fill in the trenches by mid-June 2005.

Attempts to reach town officials for comment on the lawsuit were unsuccessful.

Local lawyer Amy Blaymore Paterson, who represented an Anchorage Road resident with intervenor status during the proceedings, said she wasn't surprised by the appeal.

"We're optimistic that the commission's decision will be upheld by the court," Paterson said.

©Journal Inquirer 2006