Group granted intervenor status

By Max Bakke
Journal Inquirer
Published: Saturday, September 12, 2009 1:10 AM EDT

VERNON — A state Appellate Court judge has ruled that a group of residents can intervene in a controversial court decision to build a Home Depot near Walker’s Reservoir, reversing a lower court’s decision barring their involvement.

In a decision to be released next week, Judge Lubbie Harper Jr. writes that a state law granting intervenor status for environmental concerns can be applied in the Home Depot case, despite a previous ruling that restricted its application to “administrative proceedings,” not civil cases like the Home Depot example.

The group, Smart Growth for Vernon, now can be added as a third-party plaintiff to the suit, originally filed by Diamond 67 LLC against the Planning and Zoning Commission. It may call environmental experts to testify on the possible negative impacts the developer’s 133,000-square-foot store may have on the area, Town Attorney Hal Cummings said.

“We’re kind of in a sense breaking new ground,” Cummings said, adding that in order to overturn the town’s mediated settlement with Home Depot, Smart Growth for Vernon would have to prove there would be significant negative impact to the neighboring area.

However, Cummings said, the group already had objected to the project when Diamond 67’s building application went before the Inland Wetlands and Watercourses Commission in 2003. The application resulted in two rejections and a lawsuit, forcing a permit for the construction.

“This is their second bite of the apple,” Cummings said. “Maybe they have something new, I don’t know, but the burden is now on them.”

But Derek Oatis, a Manchester lawyer representing the residents, said that while the parties may have to appear in Vernon Superior Court, the application ultimately will be kicked back to the PZC, which will be forced to revisit Diamond 67’s proposal. There also will have to be a public hearing for residents to voice their concerns.

“I don’t think they have a choice, I think they have to start from square one,” said Oatis, who accused the town of negotiating a rash “closed-door” deal with Home Depot, without any regard for public input.

“Our bigger concern is that the town and Home Depot colluded,” Oatis said. “They side-stepped the entire process.”

After the wetlands suit, Home Depot again sued the town and the PZC, claiming the commission didn’t act within the statutory time frame on its original 2003 application.

In 2007, a three-member subcommittee for the PZC and Home Depot lawyers initiated mediation to resolve the lawsuit, which resulted in the controversial agreement.

Smart Growth sought to intervene in that mediation but was denied. And while there was no public hearing before the PZC on the settlement, the commission did allow for public comment, mostly in objection to the plan.

Diamond 67 since has purchased the property, 14.7 acres near Walker’s Reservoir, a former home to softball fields at exit 67 off Interstate 84.

“This wasn’t mediation,” Oatis said. “This was a closed-door deal.”

And while Oatis dismissed the wetlands decision as a “red herring,” Cummings maintained that Smart Growth faces a heavy burden to bring new information to Judge Samuel J. Sferrazza to force the PZC to look at Home Depot’s application again.