ORANGE - With the aid of former town attorney, Brian Stone, Stew Leonard's has filed a lawsuit that would have appeals to stop the store's construction thrown out.

Stew Leonard's Orange LLC filed the Motion to Dismiss Jan. 10 in Milford Superior Court and claims that residents seeking to stop the dairy store from coming to town have no grounds for complaint.

Some residents and town officials who are against Leonard's project were not pleased to see Stone move over to Leonard's team when he was replaced as town council in December by the Bridgeport firm Cohen and Wolf. Stone served as the town attorney during former Democratic First Selectman Mitchell Goldblatt's administration as well as a portion of former Democrat Robert Sousa. Goldblatt lost reelection to current First Selectman James Zeoli.

Town Plan and Zoning Commissioner Judy Smith Morgan, vice chairwoman, questioned Stone's allegiance to the town.

"It makes me wonder if Mr. Stone was providing the commission with unbiased, neutral legal opinions or whether he was advocating for Stew Leonards as town council," said, Smith Morgan, who voted against Leonard's application.

Stone said he was approached by Stew Leonard's to come aboard as co-council on litigating the appeals. Stone said he did not see a conflict of interest between him being former town attorney and now representing Stew's, because as town attorney he was charged with upholding the decisions of the TPZ, and he is doing the same now for Stew's.

"We're on the same side," he said. "I'm doing exactly the same thing as before when I was town attorney," Stone said.

While Stone was town attorney, he was paid a $5,000 per month retainer, and an hourly fee for litigation. He would not disclose how much Stew Leonard's is paying him to act as co-council.

The law suit deals with, in legal terms, statutory aggrievement and classical aggrievement. Statutory aggrievement is an argument made when aggrieved parties live within 100 feet of the proposed building, in this case the dairy store. The lawsuit asserts that the closest resident to the property, George Finley, lives 1,700 feet away.

Classical aggrievement requires, says the lawsuit, a two-part showing. First, a personal interest that is made vulnerable by the construction, as opposed to the entire community. Second, the individual must demonstrate how that construction would injure that interest.

"We want to dismiss the planning and zoning appeals process," said Stone. "We don't think the people who brought the appeal had the right to."

However, this lawsuit only seeks to end the current appeals process, said Stone, with the chance for the protesting residents to file more appeals always available.

Zeoli said that while he had heard of the lawsuit, he has not had the chance to review it, and did not wish to release a statement on behalf of the town until more is known about the content of the law suit.

Current town attorney Vincent Marino said that he would argue to uphold the decision of the TPZC no matter the outcome, and suggested that the protesting residents may still have the opportunity to file an appeal based on classical aggrievement, but only on an individual basis.

"No plaintiff is statutorily aggrieved," said Marino. "But whether there is classical aggrievement, that's up to the courts."

A third argument that was presented to the TPZC is the issue of a clerical error made when plans for the store were originally presented that did not show a planned conference center would be attached to the proposed dairy store. However, the lawsuit also says that the error has no bearing on appeals because the conference center also does not fall within 100 feet of any resident's property.

Orange resident Richard Civie, who is listed as a plaintiff said the entire process smacked of favoritism.

"The zoning hearing was outwardly loaded with statute bending favoritism toward Stew Leonard's; the illegal seating of the alternate, the accepting of the conference center without a public hearing, all of the safety issuses. The list goes on and on. Mitch Goldblatt seemed to be Stew Leonard's biggest cheerleader. Most disturbing is that two of the three votes that decided Stew's application, only one was elected, the other two were appointed by Mitch Goldblatt. When you consider that Mitch Goldblatt also appointed the town attorney, Brian Stone, who advised and sat with the zoning board, and that same attorney is now representing Stew Leonard's, our suspicions of foul play are greatly illuminated," Civie said.

"It's no secret that I felt Stew Leonard's was important toward the economic development of the town," said Goldblatt. "I made all appointments fairly and legally based on the town charter. Those who are elected and those who are appointed follow their duties legally," Goldblatt said of the allegations.