Ruling: Town Council has no power over land use commissions in Home Depot case

By Kym Soper
Journal Inquirer
February 8, 2008

VERNON - The Mayor and Town Council cannot override or vote down any settlement agreement made by the Planning and Zoning Commission and Home Depot developers, according to a recent opinion from Town Attorney Martin B. Burke.

Mayor Jason L. McCoy asked Burke for the opinion in late December on the request of democratic council members Marie Herbst, Bill Fox, and Michael Winkler.

The request came on the heels of the commission's 4-3 vote to accept an agreement allowing developers to build a Home Depot just off Interstate 84 at the exit 67 off ramp.

Herbst, Fox, and Winkler contended that as the settlement agreement arose from a lawsuit, it needed the council's stamp of approval before it could be formally adopted. Typically, whenever the town is sued the council must grant its approval on all potential settlements between the two parties.

"Since this was a new process, we wanted to make sure that when they used the word settlement, it did not conflict with the charter regarding the Town Council and settlements," Herbst said. "Clarification was what we thought would be needed."

This particular court settlement arose out of a lawsuit filed by developers Diamond 67 LLC against the Planning and Zoning Commission for previous denials to build on the site of the former softball fields.

But in a Jan. 9 letter to McCoy, Burke states that according to the Town Charter, the commission "exercises its power independent of the town government itself.

"Simply stated, the Town Council has no authority over the zoning process," Burke wrote, adding, "Hence, a vote by the Town Council on this subject would not only be illegal but also meaningless."

The settlement agreement was signed by developers and the Planning and Zoning commission chairman on Thursday and now goes before Judge Samuel J. Sferrazza.