Smart Growth for Vernon, CT
Developer sues Vernon over subdivision rejection

By Jason Rowe
Journal Inquirer
April 20, 2006

VERNON - A Tolland-based developer has joined a local couple in suing the Inland Wetlands Commission, saying the board's March 28 rejection of a proposed subdivision on their land was improper.

Capstone Builders, which had an option to purchase the 32 acres off Grier Road for the development of 18 single-family homes, filed the lawsuit Monday in Superior Court.

This is the second lawsuit filed in connection with the commission's decision.

Last week, Mark and Susan St. Germain, the owners of the parcel, filed a lawsuit in superior court claiming that the rejection was improper.

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

The commission's use of expert testimony is a cornerstone in both lawsuits.

Capstone's lawsuit, which was prepared by local lawyer Dorian R. Famiglietti, said the stated reasons for the application denial were in conflict with evidence presented during several hours of public hearings.

The commission also failed to follow the wetland boundaries it set during its 2003 redesignation of the wetland area in question, she wrote.

Famiglietti wrote that a number of grounds cited as a basis for the commission's denial of the application were in the form of a written report, "yet the opposition failed to produce the author of that written report at any of the public hearings."

Because of this, Famiglietti wrote, "Capstone was denied the opportunity to cross-examine the author of the written report and was, therefore, denied a fundamentally fair hearing on the application."

The lawsuit also claims that at least one of the commission members had "ex parte" communication about the application, outside the public hearing.

It also claims that the commission conducted site investigations after the close of the public hearing and relied on information gathered during those investigations to form a basis for denying the application, thereby depriving Capstone the opportunity to respond or rebut their findings.

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

Town Administrator Laurence R. Shaffer said Wednesday that the lawsuit has been forwarded to Town Attorney Joseph D. Courtney for a recommendation.

"Certainly our town attorney will take a look at some of the issues and decide how to proceed," Shaffer said.

Capstone and the St. Germains ran into trouble with their proposal almost from the start 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 few days 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.

©Journal Inquirer 2006