Smart Growth for Vernon, CT
Lawsuits challenge PZC approval of housing development

By Suzanne Carlson
Journal Inquirer
Published: Tuesday, March 15, 2011 12:05 PM EDT

VERNON — Two residents of the Bolton Lakes area off Grier Road where Capstone Builders has planned a 16-unit development of single-family homes have appealed the project’s approval by the Planning and Zoning Commission.

But Capstone Builders also has appealed the PZC’s approval, saying the commission improperly required the company to include an excessive amount of open space in the site plan.

Edie Chernack of 50 Cubles Road and Janine Gelineau of 28 Anchorage Road filed an appeal in Vernon Superior Court on Wednesday through their lawyer, Derek V. Oatis, contesting the commission’s unanimous Feb. 17 decision to approve Capstone’s plan.

Their appeal contends that the commission’s approval was “illegal, arbitrary, and capricious” and violated a section of state statute that allows a person or organization to intervene in an administrative proceeding if the action will or “is reasonably likely to” cause harm to the environment.

That provision has allowed “interveners” to participate in several high-profile applications in recent years, including proposals to build a Home Depot and a 24-hour Walmart.

Gelineau was accepted as an intervener into the most recent Capstone application, which was filed Nov. 9 after a nearly identical 18-lot application proposed in September 2005 languished in court.

The project stalled when the Inland Wetlands Commission rejected a permit for the development in early 2006, after which landowners Mark and Susan St. Germain and Capstone Builders appealed in a joint lawsuit. A wetlands permit was granted as part of a mediated settlement, according to Dorian Famiglietti, lawyer for the applicant.

Mark St. Germain served as acting chairman of the PZC at the time the first application was submitted, but resigned from the commission on May 3, 2005.

After receiving the necessary wetlands permit, Famiglietti said, Capstone resubmitted the application to the PZC in April 2007, which was again rejected, forcing all parties, including several interveners, back into mediation.

Rather than continuing with litigation, Capstone decided in 2009 to submit a new application to the PZC, using the same wetlands permit that had been granted in mediation for the first application.

Oatis has contended that the permit is no longer valid, but Town Attorney Harold Cummings said the permit still could be used for the current development proposal.

When the recent application process began, Cummings emphasized to Oatis and other potential interveners that they would be required to provide scientific, fact-based evidence that the development would cause significant harm to surrounding wetlands, as well as professional consultants willing to testify to that evidence.

But Chernack and other opponents of the project say the St. Germains have denied interveners access to the property, making it impossible to survey the land or do testing, therefore no evidence could be collected.

“The approval was a reversal of a denial on Nov. 15, 2007, of a similar application for the same property by the same applicant involving the same issues,” Oatis wrote in the appeal.

Though Capstone Builders received the development approval they had been seeking for six years, the company also filed a lawsuit in Vernon Superior Court on Friday. The company claims that the PZC acted illegally when it required that a minimum of 15 percent of the land proposed for development should be left as open space.

That requirement is codified in the PZC’s regulations, but Capstone is arguing that the commission should make an “individualized determination” of how much open space should be required for each site. The suit also argues that the requirement is statutorily illegal because the commission does not have the authority to impose such a rule.

Capstone offered “gratuitous” open space options that combined to make several site plan configurations for the PZC to consider, and they further claim the PZC illegally relocated two conservation easements on the approved site plan without Capstone’s consent.

Capstone is seeking a reduction in the amount of required open space, compensation for the “unlawful taking of the property,” and other relief as the court deems necessary, according to the suit.

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