By Kym Soper
Journal Inquirer
December 20, 2007

VERNON - Two residents who have opposed Home Depot's building a big-box store on a parcel of overgrown softball fields off Interstate 84 have filed a lawsuit against the Planning and Zoning Commission.

The two men, Glenn Montigny who represents Rockville Concerned Citizens for Responsible Development, and Dave Batchelder, who is with Smart Growth for Vernon, claim they were denied intervener status for the purposes of raising environmental issues.

Interveners are third parties to a lawsuit who are allowed to call in experts to testify on their behalf.

As a result of the denial the Planning and Zoning Commission's conduct is likely to impair or destroy the public trust in its management of wildlife issues, the suit claims.

Montigny and Batchelder are asking for a reversal of the denial, as well as costs for attorney and witness fees.

Meanwhile, the commission is likely to settle another lawsuit, filed by Home Depot and developers Diamond 67 LLC, at its Thursday meeting.

That action, known as a writ of mandamus, was filed against the commission in July. It claimed that the developer was due an automatic approval of its application as the town did not meet statutory deadlines.

Montigny, Batchelder, and many others blast the settlement proposal, saying it's a back door agreement hatched without public review behind closed doors.

Vernon Superior Court Judge Samuel Sferrazza ruled however that under the mandamus action, interveners for environmental issues could not be allowed as the suit dealt solely with time issues and whether deadlines were met.

The fight began five years ago when developers first tried to build on the 14.7-acre site of the former New England Sportsplex, not far from Walker's Reservoir.

In 2003 three Vernon residents intervened in the Home Depot application before the Inland Wetlands Commission, presenting testimony from environmental experts on the impact to the site in drawn-out public hearings.

The Wetlands Commission denied the application twice and Home Depot sued each time. Last spring the court overturned the decision, ordering the commission to approve the application and issue appropriate permits.

Home Depot then filed the mandamus civil action in August, seeking immediate automatic approval from the Planning and Zoning Commission, claiming it failed to make a decision on the 2003 application before the 65-day state statutory deadline had past.

Montigny petitioned the court in October for intervener status, but Sferrazza denied it, reasoning that under the mandamus action the court would "have no occasion to consider, substantively, environmental issues."

Its decision was confined to statutory time schedules, and as such, environmental impact was immaterial, the court said.

In the meantime, Montigny and Batchelder petitioned the Planning and Zoning Commission for intervener status, but were denied at the Nov. 19 special meeting set to discuss the settlement agreement, the lawsuit states.

That "conduct resulted in a denial of the rights provided by statute and a failure to protect the public interest in the natural resources of the state of Connecticut," the latest suit claims.

The settlement agreement Home Depot and Diamond 67 unveiled at the Nov. 19 meeting is "likely to result in the unreasonable disruption, pollution, impairment, and destruction of the natural resources and hydrology of the immediate area," including:

* Alteration of Tankerhoosen River watershed and existing natural groundwater filtering sources.

* Pollution of surface and/or groundwater to Tankerhoosen watershed and river, Gage's Brook and the Walker's Reservoir.

* A significant and detrimental increase in the amount of heavy metals, including nickel, chromium, lead, copper, zinc and manganese entering the surrounding water supply and stream.

* Increase in noise, traffic, and petroleum contamination.

Development also will violate town planning and zoning regulations, the suit charges, as currently it doesn't allow for any use involving storage, use, transportation or disposal of toxic or hazardous materials, excluding everyday ordinary household use, and prohibits the storage of herbicides, pesticides, or fertilizers in amount greater that 110 gallons or 250 pounds dry weight.

Home Depot has been vague on the exact amount of chemicals it plans to stock for sale at its garden center.

©Journal Inquirer 2007