A developer’s legal appeal to build a huge Wal-Mart supercenter within a water protection district has been sunk on a legal technicality. On February 19, 2007, Sprawl-Busters reported that the Planning Commission in Groton, Connecticut had rejected a proposal from Konover Development to construct a 200,000 s.f. Wal-Mart superstore on 30 acres of land in a water resource protection district. Wal-Mart already has a discount store on Route 184 in Groton, which would be closed. The Commission voted 4-1 to reject the plan. The Planning Commission cited nine reasons for rejection, including inadequate storm-water management, and the handling of hazardous materials. The town’s planner told the Associated Press it was “the most involved project we’ve ever seen this close to a water supply.” At the time, Konover said it was disappointed by the decision, and foreshadowed litigation when they charged that the Planning Commission exceeded its authority. The developer was considering an appeal, a Wal-Mart spokesman said. Several Planning Commission members said the application failed to meet town regulations. Two weeks after the rejection, a lawyer from Konover told the AP that his firm was, in fact, suing the town. Konover complained that the town’s planners were asking the developer to “do more than the regulations requires,” according to the news service. On March 22, 2008, Sprawl-Busters updated this story to report that Konover’s case was about to go to court, and the developer was submitting its proposal to the town for a second time. The Day newspaper reported that Konover had submitted a “new” application to both the town’s Inland Wetlands Agency and the Planning Commission. The application was basically the same as their first proposal, except for minor changes in storm drainage and other details. A group called the Groton Open Space Association (GOSA) opposed the store, raising concerns about increased traffic and environmental impacts. The timing for this nearly-identical refilling was not just coincidental. Konover’s appeal of its first rejection was slated to come before the New London Superior Court on April 8, 2008. Once the case has been heard, it was expected that the judge could take three or four months to issue a decision. Konover said they had every right to submit their plan again, without any major changes to it. The developer said its stormwater drainage plans keep the runoff going into wetlands the same as before the project is built. The implication from Konover is: take a second look, and maybe we can both avoid a trial. But the case did go to trial, and this week, The Day reports that a Superior Court judge has dismissed the appeal. Judge Joseph J. Purtill did not address any of the land-use issues that Konover was raising, because the court ruled that Konover Development had failed to establish that it has an interest in the property. This means that Konover does not have “standing” in court to bring an appeal. Groton’s Town Attorney Michael Carey had challenged the four agreements that gave Konover the option to purchase the property on Gold Star Highway. Carey said that Konover had to have the title to, or an interest in, the property at the time it applies, or “they don’t have standing to file the application.” Konover had two option agreements on the property, but they have expired. Konover was unable to show that it has a continuing interest in the property. The two purchase agreements were signed in March and July of 2007 – after the Planning Commission decision was made in February of 2007. Although Konover now has an option that is in effect, the developer failed to show that it had an interest in the land when the appeal began. Konover’s lawyer said the developer is considering whether to pursue other legal options. The Groton Open Space Association and five Groton residents opposed the Konover appeal.
This legal technicality may have killed Konover’s appeal, but the developer is still moving forward with its new application for the 200,000-square-foot store on the same 37 acres. The implication of the first lawsuit is that if the town doesn’t give them what they want with this second application, that Konover will sue them again. The Inland Wetlands Agency is now reviewing proposed changes to its wetland permits on the site. The area is zoned for commercial development, but commissioners have said they are concerned about its effect on the town’s water resource protection district. Many developers operate on the principle that what you can’t get by regulation, pursue by litigation. Shortly after Konover announced its intention to sue, The Day newspaper in New London, Connecticut printed a letter to the editor from a resident in Groton which summed up the situation: “The decision by Konover, obviously backed by Wal-Mart, strikes me as a case of big money trying to bully the opposition into changing its position and allowing the project to proceed, despite potential harm to citizens’ health. This makes me angry as I don’t care for bullies any more than I approve of said bullies ramming something down my throat — in this case, drinking water that tastes slightly of used motor oil… The commission deserves our support for its efforts on our behalf. Although I have made occasional purchases at the existing Groton Wal-Mart, I am somewhat embarrassed for having done so, thus depriving smaller retailers of my business. In view of Konover’s lawsuit, I pledge not to support any Wal-Mart store unless the Konover lawsuit is withdrawn, and only then will I do business with Wal-Mart as a last resort, if no one else has the product available. This issue is about money and if enough local citizens feel and act the same as I, maybe Wal-Mart and Konover will get the point.” When the Commission began its second hearings on the Konover refile, the citizens’ group GOSA said, “We feel the changes are not much different from the plan that was rejected.” The group says that stormwater from the site “still ends up at Hempstead Brook, and the reservoir.” GOSA says the Planning Commission needs to view whole application again, not just the changes. The town’s residents would best be served by rejecting Konover’s plans again, and ruling that the same basic plan was unacceptable in 2007, and is unacceptable in 2008. Readers are urged to contact the Groton Planning Commission Chairman James R. Sherrard by emailing the town clerk at [email protected] with the following message: “Chairman Sherrard, I urge you to reject Konover’s 2nd attempt to float a Wal-Mart supercenter into your water protection district. It appears that the second time around, Konover has made little change from the first time. Whether you reject this huge Wal-Mart once, or twice, stick by the environmental science in this case, and don’t allow such a huge project in your water protection district. As long as you detail out your findings, the courts are unlikely to substitute their judgment for yours.”
