Vernon PZC mulls new process for mediation
By Kym Soper
VERNON - Planning and Zoning Commission members are hoping to set mediation steps in stone for the future, as the recent Home Depot settlement agreement set a precedent that likely could be routinely employed by other developers.
The negotiated agreement being drafted allows developers Diamond 67 LLC to build a 132,973-square-foot Home Depot and garden center at exit 67 off Interstate 84 in exchange for environmental and other concessions that call for a smaller building and parking lot, sewer hookup, and road widening.
For commission members, who are not used to being involved in court procedures, the landmark case was like "going to bat for the first time at the World Series," Town Attorney Hal Cummings said. "Typically, after it goes to court, it kind of disappears off their radar screen until a year or so when attorneys come back and say we won or lost. But the way things are going, ultimately all cases are going to reach a point where they need to be mediated."
Critics of the settlement agreement say mediation circumvented the PZC's governing process, however, by denying them a public hearing and intervenor status.
Ann Letendre, a vocal opponent of the procedure and co-chairwoman of the Vernon Open Space Task Force, a subcommittee of the town Conservation Commission, says as it stands now, the process is like holding a trial but not allowing defense testimony.
Commission members did allow opponents to speak on the settlement before rendering a decision, but said no new information was raised.
Letendre says that without intervenor status protection, it would have been too costly to hire experts to contradict the developers.
Meanwhile, residents Glenn Montigny and Dave Batchelder, representing Rockville Concerned Citizens for Responsible Development and Smart Growth for Vernon respectively, have filed their own lawsuit against the PZC over environmental issues and the settlement agreement.
Because it is all new territory and they expect to see mediation in at least two other cases in the coming months, commission members last fall requested an outline for procedure.
Cummings on Thursday submitted a detailed six-page memo citing pros and cons and steps the process takes, starting with a court appeal contesting a land use commission's decision, and ending with either trial or a negotiated settlement.
In the memo, Cummings lays out how, during an appeal process, judges typically order mediation between the two groups at some point after initial briefs are filed and a status conference is held.
The trial is postponed while lawyers for both sides pick a mutually agreed upon mediator from a court-maintained list and begin good-faith sessions that must include the client, the memo states. If the client is a public agency, as many members as possible should be present as long as that number doesn't constitute a quorum. For Planning and Zoning that can be no more than three, and for Inland Wetlands no more than two.
No records of the sessions are kept and nothing said could be used in any later trial if mediation fails, Cummings writes.
If agreement is reached, the mediation committee reports back to the full board, which then schedules a discussion and deliberation in open session. If the settlement is approved by a majority of the board, then a formal agreement is drafted and filed with the court, which must give final review before passing judgment. If it's rejected, the case resumes back in the court and a trial date is set.
On Thursday, commission members decided to read through the draft document and begin discussions at their next meeting.
"I'd like to see the commission vote on whether or not to mediate before that takes place and chose who will serve on the panel," Chernack said.
Commission members Ralph Zahner and Pat Settembrino agreed the stipulation should be included.
In the Home Depot case, lawyers recommended mediation before a judge ordered it, as it was inevitable and beneficial "sooner rather than later," Cummings said.
The entire commission debated whether to enter into mediation during an executive session, then chose three commission members - Zahner, Richard Guttman, and Chairman Lester Finkle - to attend the sessions.
That detail was not included in Cummings' memo.
©Journal Inquirer 2008