Smart Growth for Vernon, CT
Capstone builders sue PZC over subdivision denial

By Kym Soper
Journal Inquirer
December 24, 2007

VERNON - Capstone Builders has filed a lawsuit against the town's Planning and Zoning Commission, claiming last month's rejection of its application to build a subdivision near Bolton Lake was invalid because a public hearing wasn't held within the statutory time limit.

The action calls for an automatic approval from the commission based on the lapsed deadline. It does not allow for opponents to file for intervener status, which permits third parties to enter a lawsuit in order to represent their specific interests.

PZC Chairman Lester Finkle said, however, that should the Capstone lawsuit go to mediation, public input would be allowed before the commission.

"When either party co-opts the process, then the process doesn't work," Finkle said recently. "We intend to make sure the public has a voice - they help us to do our job."

This is not the first time Capstone and land owners Mark and Susan St. Germain have sued the town over plans to build 18 large-scale single-family homes on 32 wooded acres off Grier Road.

In 2006 the Inland Wetlands Commission unanimously rejected the proposal, saying a planned water retention basin would have discharged into a protected wetland on at least two lots. Capstone and the St. Germains sued, and in mediation an agreement was reached. The commission granted approval with the provision that lots 1 and 2 be combined with a portion of lot 3, and that it be donated as open space to the town or a homeowner's association, effectively reducing the entire subdivision from 18 to 16 lots.

In a later application to the PZC, developers set aside two large lots for open space on the street side of Bolton Branch Road near the Coventry town line and placed a retention basin instead near Camp Newhoca.

PZC members rejected that proposal, saying the retention basin should be placed elsewhere as it would make the land near the popular parks and recreation camp soggy, unusable, and worthless for the town.

The latest lawsuit was filed Dec. 4.

Besides missing statutory deadlines, it charges other actions by the commission that are "illegal, arbitrary, and capricious and in abuse of the discretion vested in it" including:

* Denial was in direct conflict with the weight of presented evidence.

* One or more members had inadequate knowledge of the application as they didn't attend all meetings or missed portions.

* One or more members exhibited extreme bias and unfairly tainted the objectivity of the commission.

* The commission allotted significant time during the meetings to numerous opponents and Capstone was not afforded the same.

Commission member Lance Chernack lives in the neighborhood, and his wife acted as an intervener during the hearing process when the application was before Inland Wetlands. Chernack has recused himself from all PPZC meetings, leaving the room whenever the subject came up.

Mark St. Germain is, himself, a former member of the PZC, who left the board around the same time the application was filed.

From the start his subdivision proposal has stirred controversy and angered neighbors on Cubles, Grier, and Anchorage roads, who vehemently opposed the plan.

Developers first ran into trouble in the spring of 2005 when the Wetlands Commission issued a cease-and-desist order after neighbors complained that Capstone dug a series of trenches on the site, causing silt to be discharged onto wetlands.

At the time St. Germain was the acting chairman of the PZC.

Capstone said the trenches were built to test groundwater, and the cease-and-desist order was lifted when they agreed to limit the escape of silt from the trenches. The developer also agreed to fill in the trenches by mid-June 2005.

The latest lawsuit now goes before a judge on Jan. 8 in Vernon Superior Court.

©Journal Inquirer 2007