By Jason Rowe
Journal Inquirer
March 29, 2005

VERNON — Saying there was insufficient legal reasoning to deny the application, a state Superior Court judge has nullified the Inland Wetlands Commission's August 2003 rejection of a proposal to construct a Home Depot near exit 67 off Interstate 84.

In her March 18 ruling, Judge Jane S. Scholl sustained an appeal by the project's developers, Diamond 67 LLC, and property owner WCW LLC, and sent the matter back to the commission for further consideration.

"Without a basis for finding an adverse impact, a commission may not legally deny an application," Scholl wrote in her ruling. "The commission here both failed to find an adverse impact and failed to provide the court with a basis upon which to search the record for substantial evidence of such an impact."

Diamond 67, made up of the Hayes Corp. of Manchester and C.E. Vernon LLC of Fairfield, had proposed building a 117,000-square-foot Home Depot store and a 28,713-square-foot garden center at 117 Reservoir Road, the former home of the New England SportsPlex.

In its rejection, the wetlands commission said feasible and prudent alternatives existed for the proposed project.

The commission took issue with the developers' position that an on-site septic system would be sufficient to handle the amount of sewage produced by the large home-improvement store slated for the 14.7-acre site, which is zoned for commercial development.

In her ruling, Scholl said the commission failed to provide developers with a factual basis for its decision.

"The commission here failed to provide even a clear indication of the site-specific concerns upon which the court may base its review," Scholl stated. "Here, the commission not only failed to find an adverse impact, it also failed to provide in its written denial letter any specific factual findings in support of its reasons for denial adequate to guide the court were it to review the record for substantial evidence to support an implied finding of adverse impact."

The commission reached its decision to deny the application after eight nights of public hearings between May 6 and July 30, 2003.

The hearings drew dozens of residents, most of whom opposed the project based on environmental concerns, and the commission's unanimous vote to reject the application on Aug. 20, 2003 was met with cheers, hugs, and a standing ovation.

Jason Zahner/ Journal Inquirer

A phone message left Monday afternoon with Richard Hayes Jr., a partner in Diamond 67, was not returned.

Saying he had not seen the judge's ruling, wetlands commission Chairman Ralph Zahner on Monday afternoon would not comment on the decision.

As for the town's next step, Town Attorney Joseph D. Courtney said officials were in the process of discussing Scholl's ruling and possible responses and would determine a course of action "soon."

Courtney said the ruling was unique because it did not grant an approval to the developers.

"We're huddling right now," Courtney said Monday. "It's an interesting order. The judge did not direct an outcome."

Courtney said the town could file an appeal of the ruling within 20 days of the March 18 decision.

"There is a lot that's in the mix," Courtney said.

Amy Blaymore Paterson, a lawyer who represented three opponents with intervenor status during the hearing process, said the commission has been given the opportunity to better articulate the reasons for its decision.

"The judge didn't rule that they had to grant a permit," Paterson said today. "In that regard, I don't look at it as a setback."