By Suzanne Carlson
Journal Inquirer
Published: Thursday, March 31, 2011 12:14 PM EDT

VERNON — An appellate court has upheld a settlement between the Planning and Zoning Commission and commercial real estate firm Diamond 67 LLC that enables the company to develop the former SportsPlex site across from Walker’s Reservoir where a Home Depot had been planned.

The decision released Wednesday affirmed Superior Court Judge Lawrence C. Klaczak’s October 2009 judgment in favor of the town.

Diamond 67 LLC, which proposed building a Home Depot on the site in 2003, sued the PZC following the resolution of an earlier suit against the town’s Inland Wetlands Commission in 2007 regarding the same project.

Developers argued that the PZC did not act within the statutory time frame on their 2003 application, and, in 2007, a three-member subcommittee of the PZC and developers’ lawyers worked to resolve the lawsuit.

“There were significant concessions made by Diamond 67 to the plan that substantially enhanced it and made it better from the town’s point of view,” Town Attorney Harold R. Cummings said.

Cummings said Home Depot agreed to reduce the size of the store and space needed for parking and agreed to hook into the town’s water and sewer systems.

Though Home Depot USA owned the property for several years and was added as a party plaintiff in September 2007, the company sold the property back to Diamond 67 LLC on Oct. 1, 2010, and at that point no longer was involved in the court’s legal wrangling over its use.

Cummings said the site plan permits previously issued by the Inland Wetlands Commission and the PZC “are not tied to any individual builder or industry,” therefore, other companies such as Target, Wal-Mart, or Lowe’s could develop the site based on the plan originally intended for a Home Depot.

But Derek V. Oatis, a lawyer representing Glenn Montigny and James Batchelder, residents and environmental intervenors in the process, disputes nearly every aspect of the case and said he plans either to request a review by the appellate court or petition the superior court for another appeal.

Montigny and others argued that the proposed big-box development would harm the nearby reservoir.

“The trial court granted Montigny’s motion to intervene in this mandamus action and afforded him the opportunity to present evidence relating to his claim of an environmental impact from the proposed development. Montigny did not avail himself of that opportunity,” the appellate judges said in the court’s written opinion.

The opinion went on to state that Montigny was not present at a hearing on the action, and Oatis did not present witnesses or documentary evidence to support the claim.

Therefore, the court concluded that there is no basis for finding an adverse environmental impact from the proposed development, and “Montigny abdicated his right of approval by abandoning his responsibility to raise environmental issues.”

But Oatis argued that Montigny was “intentionally unprepared” for the hearing, because he was not made aware of Home Depot’s intentions and was not given an opportunity to gather evidence or present witnesses.

“There was no notice of what this hearing would be about. … This entire procedure has been incredibly strange and complicated, I think due to the conduct of the town,” Oatis said today.

“I think the ruling is wrong. … At the same time, I believe the ruling is irrelevant,” he said, referring to a separate administrative action that could put the whole process back to square one if it’s decided that intervenors were improperly kept out of the settlement process early on.

“Glenn Montigny and David Batchelder should have been involved in the settlement process,” Oatis said, adding that if the court finds that intervenors should have been included, “then the proposed settlement’s moot.”

He also said that because the settlement was tailored to Home Depot and refers to the company throughout, it’s improper for the court or town to allow another company to build under that agreement.

And because the development proposal was the result of a settlement and not a site plan approved through normal PZC procedures, “I think this entire process was used to circumvent the normal powers of the PZC and residents,” Oatis said.

“Attorney Cummings has admitted repeatedly that he misrepresented to the PZC the mediation process, he told them it was an order of the court that they had to mediate, that it was an order of the court that Glenn Montigny be excluded, which is just not true,” Oatis said.

Of the administrative action pending in the appellate court, “we’ll argue the appeal and we’ll prevail,” Oatis said.

If he is successful and Wednesday’s judgment upholding the settlement to develop is indeed rendered moot, the whole process will be “a giant mess and a giant waste of money. And no store,” Oatis said.

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