Appellate Court grants hearing on Home Depot

By Kym Soper
Journal Inquirer
Published: Tuesday, July 1, 2008 1:33 PM EDT

VERNON — The state Appellate Court on Monday granted a hearing to a group of residents who are contesting a settlement between the town Planning and Zoning Commission and Home Depot developers.

The group, Smart Growth for Vernon, filed the appeal, claiming the settlement was hatched behind closed doors, lacked a public hearing, and that no intervenor status was granted to argue environmental issues.

But the court denied a second appeal by the group over the timing of the application filed by developer Diamond 67 LLC, which wants to construct a Home Depot on the vacant softball fields at Exit 67 off Interstate 84.

Derek V. Oatis, the Manchester lawyer representing Smart Growth, filed the appeal in March after Vernon Superior Court Judge Samuel J. Sferrazza’s Feb. 14 approval of the agreement that had been brokered by the town and Home Depot the previous December.

The Appellate Court agreed that Sferrazza was correct in denying Smart Growth’s request to intervene over the question of Diamond 67’s 2003 application and whether the PZC acted within the statutory time frame.

However, a hearing on the matter of not allowing for interveners — third parties to a lawsuit who are allowed to call in experts to testify on their behalf — has been granted.

“My whole goal in this madness was to get a hearing before a judge,” Oatis said, adding that the entire settlement is outside the law. “If this deal goes through, it sets a horrible precedent and tosses zoning regulations out the window. There’s a principal at stake here.”

Oatis and Town Attorney Hal Cummings, who ushered the deal through the mediation process between the PZC and Home Depot lawyers, must now file briefs. It will likely take a year before the hearing is scheduled.

“Basically, we’re back at square one,” Cummings said Monday shortly after the order was handed down.

As for Home Depot, it could start building this summer as planned, but would be taking a risk, Cummings said.

The five-year battle to build a 132,973-square-foot Home Depot and garden center on 14.7 acres near Walker’s Reservoir first began in 2003 when protesters flooded the Inland Wetlands Commission meetings. That commission twice denied the application and, as a result, the PZC never ruled on it. Home Depot bought the property, and Diamond 67 then filed a lawsuit against the town that ended with a ruling in favor of the developers, forcing the wetlands commission to issue a permit.

Diamond 67 then filed a revised application with the PZC, followed by a second lawsuit claiming the PZC did not act within the statutory time frame on the original 2003 application.

Last summer a three-member subcommittee for the PZC and Home Depot lawyers began mediation to resolve the lawsuit, which resulted in the contested agreement. While there was no public hearing on that settlement, the PZC did allow for public comment, which mostly ran in opposition to the plan.

And lacking intervener status meant the group could not bring in its own environmental experts to testify, Oatis said.

In the meantime, the Atlanta-based Home Depot chain announced last May that it planned to close 15 of its least profitable stores around the country, with the closest being in Brattleboro, Vt.. It also announced the company would no longer pursue the opening of 50 U.S. stores that had been in the works, in some cases, for more than 10 years.

It remains unclear if that scale-back in development would affect plans for Vernon.