By Kym Soper
Journal Inquirer
May 19, 2007

VERNON - Two court decisions handed down this week involving a controversial stretch of land at the exit 67 off ramp from Interstate 84 squashed Wal-Mart's bid to build while giving Home Depot another chance.

In the Wal-Mart decision, Vernon Superior Court Judge Patricia Lilly Harleston ruled that the town's Planning and Zoning Commission acted properly when it changed the zoning designation of a 42-acre parcel near the highway off ramp where developers had wanted to build a Wal-Mart Supercenter.

In the other ruling, Vernon Superior Court Judge Lawrence C. Klaczak found fault with the Inland Wetlands Commission's rejection of an application for a Home Depot at the former New England Sportsplex.

Klaczak said in his decision that there were no grounds to reject the plan. He ordered the matter back to the commission and directed it to issue a permit.

Lee & Lamont Realty of Vernon, which owns the property where the Wal-Mart was proposed, sued the PZC after it changed regulations in July 2005 for the exit 67 and Gerber Farm areas. The changes increased the buffer space between roads, highways, residential, and non residential development in order to restrict "big box" stores and reduce the impact of commercial areas on nearby residential neighborhoods.

In its appeal, Lee & Lamont claimed that the commission acted arbitrarily and illegally when it made the changes.

But Harleston found those claims to be without merit and dismissed the appeal.

Acting in a legislative capacity, "the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change," Harleston wrote in her decision.

The only time the courts may interfere is when those actions are "clearly contrary to law or in abuse of discretion," she wrote.

Lee & Lamont has 20 days to appeal the ruling.

Residential proposal

The firm now has an application before the PZC for a high-density residential development on the site, Town Planner Neil Pade said. With current restrictions, it would be difficult to build structures totaling more than 80,000 square feet, he added.

Meanwhile, the commission has proposed a change in the parcel's zoning designation. A public hearing on both issues is scheduled for June 7 at the Senior Center in the Rockville section of town.

In the Home Depot case, a lawyer for the retail chain said an application to the PZC is likely forthcoming. The company's plan is to build a 117,000-square-foot store on the site.

"Based upon the evidence in the record, the court finds that there is only one conclusion that the commission could have reasonably reached," Klaczak wrote. "Therefore, the commission's denial of the inland wetlands permit is reversed."

The commission exceeded its jurisdiction when it tried to regulate activity beyond the Walker Reservoir wetlands and a 75-foot buffer area, the judge ruled. And expert testimony that commission members relied on in making their decision was concerned more with adverse public opinion and general concerns than with site-specific evidence, he added.

The commission is scheduled to meet May 22 in a closed-door session with its lawyer, Harold Cummings, to decide whether to accept the judge's ruling or appeal.

If the commission accepts the ruling and issues a permit, it will still have authority to impose certain conditions on the development.

Controversial area

Home Depot bought the 14.7-acre parcel at 117 Reservoir Road from Diamond 67 LLC, which had initially proposed the Home Depot development, in March 2006 as the area became embroiled in controversy and litigation.

Commercial development in the eastern part of town has been a sore spot for residents in recent years. The Home Depot and Wal-Mart proposals have encountered strong opposition from residents, some of whom became involved in the litigation.

In the spring and summer of 2003, after eight nights of public hearings that stretched over several weeks, the wetlands commission rejected Diamond 67's application to build the Home Depot store.

The hearings surrounding the project drew dozens of residents, most of whom opposed the project, and the commission's unanimous vote to reject the application on Aug. 20, 2003 was met with cheers, hugs, and a standing ovation.

The site came back into the spotlight in 2005 when a Superior Court judge overturned the wetlands commission's ruling, saying there was insufficient legal reasoning to deny the application.

The judge, Jane S. Scholl, sent the matter back to the wetlands commission for further consideration.

14-page explanation

In December 2005, after several months of deliberations and reviews of lengthy meeting transcripts, the commission unanimously approved a 14-page document outlining its reasons for rejecting the wetlands permit.

The document concluded that the application should be denied because the development would inhibit trout spawning in nearby watercourses, impair the physical characteristics of nearby bodies of water, and affect the downstream flow of the Tankerhoosen River.

It quoted heavily from the more than 20 volumes of documents and testimony from the eight public hearings in 2003.

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

Days after the decision, Diamond 67 sued the wetlands commission, saying the commission ignored expert testimony relating to the effects of an on-site septic system.

The firm also accused the wetlands commission of holding closed-door sessions on the application and receiving additional information from its opponents.

Home Depot got approval to become an additional plaintiff a year later when it bought the property.

©Journal Inquirer 2007