Appellate ruling clears way for exit 67 development
By Suzanne Carlson
VERNON — Big-box retailers are free to build on the former SportsPlex site near exit 67 of Interstate 84, after an appellate court dismissed an administrative appeal by environmental intervenors seeking to block a settlement between the Planning and Zoning Commission and the commercial real estate firm Diamond 67 LLC.
The company first proposed building a Home Depot on the parcel across from Walker’s Reservoir in 2003 and sued the PZC following the resolution of an earlier suit against the town’s Inland Wetlands Commission in 2007 on 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, preventing residents and other concerned parties from acting as intervenors.
A public forum on a negotiated site plan was scheduled for Nov. 19, 2007. James D. Batchelder and Glenn Montigny, who founded the group Rockville Citizens for Responsible Development, petitioned to intervene in the proceedings but were denied by the PZC.
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 legal wrangling over its use.
Town Attorney Harold Cummings, who represented the town in the matter with lawyer Susan Boyan, has 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 could develop the site based on the plan originally intended for a Home Depot.
Montigny eventually was granted intervenor status in 2009, but his lawyer, Derek V. Oatis, who did not return calls seeking comment today, “failed to present any evidence concerning environmental issues,” according to the most recent decision, which will be published in the Connecticut Law Journal on Jan. 24.
Montigny did not attend the Oct. 21, 2009, hearing and the trial referee, Judge Lawrence C. Klaczak, approved the proposed settlement, which Montigny appealed, claiming it was improper because he did not consent to it.
The court released its decision on the settlement on April 5, 2011, affirming the judgment of the trial court, and concluded “Montigny abdicated his right of approval by abandoning his responsibility to raise environmental issues as an intervenor.”
The town asked the court for summary judgment of Batchelder and Montigny’s appeal of the 2007 public forum matter on Feb. 25, 2010, and on June 10, 2010, Judge Samuel Sferrazza ruled against Montigny and dismissed Batchelder’s appeal as moot. Sferrazza concluded that Klaczak’s Dec. 3, 2009, ruling, approving the proposed settlement of the site plan case between Diamond 67 and the PZC, disposed of Batchelder and Montigny’s claims.
They subsequently appealed, arguing that the settlement did not address their right to intervene in the public hearing, and if they had been allowed to participate, “the settlement agreement never would have been reached,” according to the decision.
But the court ruled that Montigny and Batchelder had ample opportunity to present evidence that development would cause environmental harm at the Oct. 21, 2009, hearing with Klaczak, but failed to do so.
“They were offered, but failed to avail themselves of the very thing they sought to attain by seeking to intervene in the Nov. 19, 2007, public forum,” Judge Douglas S. Lavine wrote for the appellate court.
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