Preston — A Maryland-based developer and the Mashantucket Pequot Tribe are suing the Planning and Zoning Commission for failing to approve permits they need to develop a luxury RV park proposed for tribe-owned land at the junction of Routes 2 and 164. 

The “administrative appeal” has been served on the town and will appear in New London Superior Court records, said Town Attorney Kenneth Slater, who is set to privately discuss the matter with the commission when it meets Tuesday night.

In the suit, the tribe and Blue Camp CT, a subsidiary of Blue Water Development Corp. of Ocean City, Md., allege the commission “acted unlawfully, in excess of its authority, erroneously, arbitrarily, capriciously, upon unlawful procedures and in abuse of its discretion …" when, on May 24, it voted 4-3 against a commission member’s motion that Blue Camp’s application for a “special exception” be granted. Action on a site plan application for the proposed development was tabled.

At the May 24 meeting, Town Planner Kathy Warzecha said the 4-3 vote — which was at odds with her recommendation that the special exception be granted — would have to be followed by a vote to deny the application.

Later, however, the town learned the May 24 vote sufficed as a denial of the application, Warzecha said Monday.

According to Slater, a Connecticut court ruled years ago that if a motion to approve fails, it’s a denial. No subsequent approval of a motion to deny is necessary.

Prior to the May 24 vote, commission member Denise Beale voiced opposition to the proposed development, citing the traffic it would generate and its potential impact on nearby Preston Plains Middle School and residences near Avery Pond.

“While I feel the applicant has taken every effort in addressing the concerns of townspeople, I still have my concerns,” Beale said. “Though it complies with the regulations, it is a special exception. It’s the town's responsibility to review whether it is in the best interest of the town.”

“In the end, it’s really our responsibility to represent the people’s wishes — that’s what a special exception is,” she said.

Following the vote, Mike Sinko, who made the motion, said the commission’s only role is to determine whether an application conforms to the town’s zoning regulations.

Warzecha’s recommendation that the special exception be granted was conditioned on 23 modifications of the developer’s plans, including the elimination of nine proposed campsites, the addition of certain buffers, restrictions on music festivals and the amplification of sound, and maintenance of the stormwater system.

Originally dubbed "Foxwoods RV Park," the proposed development would be located near the tribe's Foxwoods Resort Casino.

The plaintiffs claim the commission “applied inapplicable and inappropriate standards” to the special-exception application and denied the application despite the fact that a majority of the commission members who voted "acknowledged on the record” that it met the regulations.

 “The Plaintiff’s Special Exception Application satisfied all of the empirical requirements for a vacation resort … and a recreation campground … as well as the special exception evaluation criteria … and the site plan requirements,” the suit states. “As such, (the commission) was required to approve the special exception and site plan applications.”

The suit also alleges one or more commission members “engaged in impermissible contact and discussion with members of the public and/or the intervenor party defendants outside of the public hearing record.”

Two Lynn Drive residents the commission granted “evironmental intervenor” status — Susan Hotchkiss and Jennifer Hollstein — are listed as defendants in the suit.

The RV park would be built on three Route 2 parcels comprising 65 acres. In April, a petition bearing 400 signatures of residents opposed to the project was submitted to the commission. The developers have downsized the project considerably, eliminating a dock, a boardwalk, tent sites along the pond and a bathhouse.

“We still believe the project meets the town’s zoning requirements and remain committed to the project,” Jason Guyot, Foxwoods' president and chief executive officer, wrote Monday in an email.

b.hallenbeck@theday.com