By Kym Soper
Journal Inquirer
July 10, 2007

VERNON - Developers of the Home Depot project think they've found a loophole that could soon have them breaking ground after years of turmoil, court cases, and delay.

In a letter written two weeks ago to the Planning and Zoning Commission, developers Richard Hayes Jr. and Diamond 67 LLC demanded immediate approval of the initial March 3, 2003, application to build the home improvement store at the exit 67 ramp off Interstate 84, saying the town failed to act within the statutory time frames.

Accordingly, approval for the site plan and related special permits should automatically be granted under state law, Hayes wrote in his June 27 letter.

But the lawyer for the PZC says Hayes' presumption is flawed.

The state statute Hayes cites says the town has 65 days to make a decision, and that deadline would have come and gone in May 2003.

As no decision was made in that timeframe, the application should, by law, be approved, developers maintain.

Home Depot owns the 14.7 acres at 117 Reservoir Road, the former site of New England Sportsplex.

Until recently it had been the center of a gale storm between neighbors, opponents of big box development, the Inland Wetlands Commission, and the courts.

But this past May, Vernon Superior Court Judge Lawrence C. Klaczak cleared the way for Home Depot, ruling that the Wetlands Commission acted improperly when it twice denied the application, first in 2003 and again in 2005, and ordered the agency to issue a permit.

A second identical Inland Wetlands permit filed in May 2007 was granted two weeks ago on June 26 and forwarded to the Planning and Zoning Commission, which has the final say on land use applications.

Meanwhile, Home Depot developers were hoping the first application could squeeze through the process and gain approval without benefit of public hearings before the PZC.

But Harold Cummings, lawyer for the PZC, says nothing is automatic.

"They can't play these kinds of games," Cummings said Monday.

In his letter to the PZC regarding Hayes' demand, Cummings cites a subsection of state law that calls for an extension should the application be tied up by another commission, in this case, Inland Wetlands.

"The time period for a decision shall be extended to 35 days after the decision of such agency," the law reads, giving Planning and Zoning to mid-August to decide.

Moreover, fearing further rejection by Planning and Zoning, the initial 2003 application was verbally withdrawn by Hayes and Home Depot four years ago after it was first denied by Inland Wetlands, Cummings said. While they never sent in a letter, theoretically it doesn't exist, he said.

"It is my opinion that there has been no automatic approval of the site plan and special permits as claimed by Mr. Hayes ... since we are still within the 35-day time period following the decision by the Inland Wetlands Commission," Cummings wrote.

Taking Cummings' recommendation, the commission voted unanimously Thursday to decide the 2003 issue at its July 19 meeting, and also set a date for a public hearing on the second "identical" 2007 application that recently cleared Inland Wetlands and was received by Planning and Zoning on June 7.

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