East Lyme ― Developers engaged in a lawsuit over a rejected affordable housing proposal are asking for a judge’s permission to question Zoning Commission members and several Town Hall staff members under oath.

New London-based Attorney Paul Geraghty, who represents developers Duval Partners LLC of North Carolina and New Hampshire-based civil engineer Kristen Clarke, the principals behind a proposal for 19 houses and 24 townhouses on the Montville border, filed the motion for discovery earlier this month in New London Superior Court.

Geraghty asked to depose the nine regular and alternate Zoning Commission members who participated in multiple public hearings and the vote, as well as Zoning Official Bill Mulholland, Planning Director Gary Goeschel, Deputy Public Works Director Bill Scheer and Town Engineer Alex Close.

Also included was the Board of Selectmen’s liaison to the commission, Rose Ann Hardy. The attorney in his motion reserved the right to add people to the list based on the information provided in any initial depositions.

Geraghty alleged the commission had already made its decision to reject the application when members sat down on July 20, 2023, to deliberate. He pointed to a six-page denial motion that was produced and read into the record before members had debated the merits and shortcomings of the application.

He cited the lengthy denial verbiage and lack of deliberations as evidence the commission had predetermined its decision and engaged in unlawful communication outside of the public hearing and meeting process.

The vote followed multiple public hearings during which neighbors expressed concerns there isn’t enough water in the area to fight fires and not enough room on the roads for trucks and ambulances.

Commission Attorney Michael Carey in his Jan. 22 objection to the motion said any documents being requested by Geraghty would likely include personal phone, social media and computer records that would constitute an invasion of privacy and “certainly be a huge imposition on the time” of the volunteers and staffers.

Carey, for the commission, emphasized legal precedent sets a high bar when it comes to allowing new evidence such as that obtained through depositions: one that must be based on “actual bias, rather than mere potential bias” and which must acknowledge the importance of “not indiscriminately subjecting these volunteer board and commission members to depositions.”

The case is being expedited through the state’s affordable housing law, which promotes the availability of housing by making it easier for developers to get around local zoning restrictions. The burden of proof in such cases shifts to the municipality to show the risk to public health or safety outweighs the need for affordable housing.

The initial complaint filed by Geraghty in August included allegations the town “has a pattern of denying affordable housing applications.”

The commission is now arguing that any attempt to supplement the record must be supported by “sufficient reason” which is not laid out in Geraghty’s argument.

But Geraghty argued the record itself is insufficient.

“The core of these allegations is that communication had to have taken place outside the public record,” he wrote. “The plaintiffs have no means other than conducting discovery as requested in order to prove its claims.”

e.regan@theday.com