Home Depot files another lawsuit over rejection
By Kym Soper
VERNON - Developers of a Home Depot project have filed another lawsuit against the town appealing the Planning and Zoning Commission's rejection last month of their 2003 application.
This is the second such lawsuit Richard P. Hayes and Diamond 67 LLC have filed this summer regarding the old application to build the 117,000-square-foot home improvement store at the exit 67 ramp off Interstate 84.
In early July developers demanded immediate approval from Planning and Zoning for the site plan and related special permits, saying it should be automatically granted as the town failed to act within the statutory time frames.
They cited a state statute that says a Planning and Zoning Commission has 65 days to render a decision once the application has been forwarded from an Inland Wetlands board.
The courts ordered Inland Wetlands last May to issue a permit for the 2003 application, saying that panel acted improperly when it twice denied the application, first in 2003 and again in 2005.
Once that commission granted a permit in late May, Planning and Zoning put the 2003 application on its agenda and voted it down July 19.
In the second lawsuit filed Tuesday, the developer claims that Planning and Zoning had no authority to deny the application, as it should have been automatically granted due to the lapse in time.
Hal Cummings, town attorney for the land use commissions, says he doesn't believe either of the two lawsuits will hold up in court. 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.
In a July 5 letter to Planning and Zoning supporting his decision Cummings said, "the time period for a decision shall be extended to 35 days" after Inland Wetlands finally granted a permit, putting the deadline to mid-August.
Moreover, fearing further rejection by Planning and Zoning, the initial 2003 application was verbally withdrawn by Hayes and Home Depot four years ago after it was first denied by Inland Wetlands, Cummings said.
"They're basically just trying to throw as many things against the wall as they can to see if anything sticks," Cummings said, adding "I think the town has legitimate defenses in both cases."
Home Depot, which owns the parcel on the 14.7 acres known as the former New England Sportsplex located at 117 Reservoir Road, has a similar second 2007 application before the Planning and Zoning commission.
©Journal Inquirer 2007