complaint parties plaintiffs - nancy on norwalk · sober. 16. residents at firetree's...

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

FIRETREE, LTD; JOHN DOE; and JANE DOE,

Plaintiffs, CIVIL NO.

vs.

CITY OF NORWALK ZONING BOARD OF APPEALS AND ALINE ROCHEFORT, in her official capacity as City of Norwalk Zoning Enforcement Officer,

JUNE 30, 2017

Defendants.

COMPLAINT

Plaintiffs Firetree, Ltd. ("Firetree"), John Doe, and Jane Doe (collectively, "Plaintiffs")

by their undersigned attorneys for their Complaint against Defendants City of Norwalk Zoning

Board of Appeals ("ZBA") and Aline Rochefort, in her official capacity as City of Norwalk

Zoning Enforcement Officer ("ZEO") (collectively, "Defendants"), allege as follows:

PARTIES

Plaintiffs

Firetree is a 501(c)(3) organization headquartered in Williamsport, Pennsylvania

that was formed in 1991. Firetree provides community reentry programs, also known as halfway

houses, for individuals who have had an association with the criminal justice system, and the

vast majority of whom are recovering from drug and alcohol addiction disabilities, mental health

16698107-v3

Case 3:17-cv-01088-MPS Document 1 Filed 06/30/17 of 34

disabilities, or physical disabilities. Firetree is the record owner of property located at 17

Quintard Avenue in Norwalk, Connecticut.

John Doe and Jane Doe are or were individuals incarcerated by the Federal

Bureau of Prisons. John Doe and Jane Doe are or were prospective residents of 17 Quintard

Avenue and are in recovery for drug and alcohol addiction disabilities, mental health disabilities,

or physical disabilities.

Defendants

City of Norwalk Zoning Board of Appeals is a duly authorized municipal entity 3.

vested with authority under Connecticut General Statutes § 8-6 et seq. to hear and decide appeals

of decisions of the ZEO, among other things. As such, all actions of the ZBA are performed

under color of state law.

Aline Rochefort is an individual employed by the City of Norwalk. Ms. 4

Rochefort is the Zoning Enforcement Officer for Norwalk, and is sued in her official capacity as

ZEO.

JURISDICTION AND VENUE

This Court has jurisdiction over the federal law claims asserted in the Complaint

pursuant to 28 U.S.C. §§ 1331 and 1343, 42 U.S.C. § 3613, and 42 U.S.C. § 12133. This Court

has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

Venue is proper pursuant to 28 U.S.C. § 1391 because the defendants are located 6.

in this District, the events giving rise to this Complaint occurred in this District, and the property

involved in this claim is located in the District of Connecticut.


FACTS

Firetree provides quality transitional services to individuals associated with the

criminal justice system, particularly those who are recovering from alcohol addiction or drug

addiction, have mental health disabilities, or physical disabilities. Firetree developed the belief

and the mission that recovery from these disabilities is essential to effect change in individuals

who have been associated with the criminal justice system in order to facilitate a successful and

productive return to society. Firetree offers a mutually supportive living environment at its

halfway house facilities that are specifically targeted to residents with histories of drug and

alcohol abuse, mental health disabilities, or physical disabilities.

Recovering and former alcohol and substance abusers have, and are regarded as 8.

having, physical or mental impairments, which substantially limit one or more of their major life

activities. Addiction-disabled individuals are handicapped and disabled as defined under state

and federal laws including, but not limited to, 42 U.S.C. § 3602(h).

Individuals with mental health issues have, and are regarded as having, physical 9

or mental impairments, which substantially limit one or more of their major life activities.

Individuals with mental health disabilities are handicapped and disabled as defined under state

and federal laws including, but not limited to, 42 U.S.C. § 3602(h).

Since 1991, Firetree has provided room, board, and supportive services in its 10.

halfway houses throughout the country to individuals recovering from addiction disabilities and

mental health disabilities, who are referred to Firetree by the Federal Bureau of Prisons ("BOP").


11. Firetree does not provide medical treatment services at its halfway houses.

Firetree facilitates its halfway house residents in obtaining medical treatment or counseling

elsewhere to promote their successful recovery and reentry into society.

12. Firetree offers the following programs at its halfway houses: (a) development of

personalized reentry plan for each resident; (b) life skills classes; (c) employment training; (d)

money management training; (e) classes in parenting and family skills; (f) mental health

counseling; (g) residence development; (h) transition skills; (i) recreation activities; (j) religious

activities; and (k) educational recourses addressing chemical dependencies.

13. Residents at Firetree's facilities are referred to Firetree pursuant to contracts with

the BOP. Firetree has worked with the BOP in this way for 25 years. The BOP utilizes reentry

facilities like the one proposed in Norwalk to provide structured programs and transitional

training specifically to federal reentrants with disabilities and/or special needs. Firetree's

residents are individuals identified by the BOP as requiring transitional living to ameliorate the

effects of disabilities in the form of drug and alcohol addiction and mental health and physical

disabilities, and other special needs. The BOP pays Firetree consideration for providing a

mutually supportive living arrangement for federal reentrants.

14. The individuals identified by the BOP for transitional living may decline referral

to Firetree's transitional reentry facilities. However, the vast majority of individuals who are

given the option to live at a facility such as Firetree's choose to do so. Individuals residing at

Firetree's halfway houses typically reside there for a period of 6 months.

15. The vast majority of individuals who reside at Firetree are diagnosed by the BOP

as disabled with either addiction recovery disabilities, mental health disabilities, or physical

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disabilities. To be eligible to live at Firetree's transitional living facilities, residents must remain

sober.

16. Residents at Firetree's transitional living facilities must try to obtain employment.

Once employed, 25% of the residents' pay goes toward subsistence: a payment by the residents

that is used by the BOP to partially cover the cost of housing the residents at Firetree's halfway

houses.

17. Firetree has halfway houses in Harrisburg, Pennsylvania and Syracuse, New York

for residents referred by the BOP. The vast majority of residents at Firetree's Harrisburg and

Syracuse facilities (at least 70% and usually higher) have either addiction disabilities or mental

health or physical disabilities.

18. In or about 2014, Firetree became interested in establishing a halfway house in

Connecticut, and identified the 17 Quintard Avenue property in Norwalk with its existing

building as an ideal location for such a facility.

19. The land and improvements located at 17 Quintard Avenue are collectively

referred to as the "Building."

The Building is situated in the City's C Residence zoning district ("C Residence 20.

Zone"). Section 118-350 of the City's zoning regulations ("Zoning Regulations") provides that

halfway houses are allowed in the C Residence Zone by special permit, provided that the number

of residents does not exceed twelve.

21. The Zoning Regulations define "halfway house" based on the disabled nature of

the facility's residents: "a transitional living facility which provides resident services and

supervision for persons who have physical or social disabilities which make operation in society


difficult and require the protection of a group setting to facilitate their rehabilitation and return as

a fully functional member of society."

22. Prior to 1987, the Zoning Regulations did not expressly reference or define

"halfway house."

23. In 1975 and 1976, Firetree's predecessor in title, Pivot Ministries (formerly

known as Norwalk Area Ministry, Inc.), obtained zoning permits to use the Building as a facility

variously called "drug rehab center (L-2 Rooming House)," "drug rehabilitation center," and

"rehabilitation center." None of these permits limited the number of individuals who could

reside at the Building.

Neither a "drug rehabilitation center" nor a "rehabilitation center" were allowed 24.

uses in the C Residence zone when Pivot Ministries obtained its permit approvals to use the

Building in 1975 and 1976. The terms "drug rehabilitation center" or "rehabilitation center"

have never been defined by the City's zoning regulations.

25. Pivot's historic use of the Property did not include most features of drug and

alcohol addiction rehabilitation, such as detoxification, behavioral counseling, administration of

medicine, or treatment of co-occurring mental health issues. Pivot Ministries' use of the

Property was as a halfway house. Pivot Ministries provided resident services and supervision in

a transitional living environment for persons having physical or social disabilities which make

operation in society difficult and require the protection of a group setting to facilitate their

rehabilitation and return as a fully functional member of society.

Although a "halfway house" was not a use expressly defined by the Zoning 26.

Regulations in 1976, City of Norwalk zoning staff found that Pivot Ministries' use of the

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Building was allowed as a "philanthropic or eleemosynary use or institution" at the time it

obtained permits and approvals and began operations in 1976.

27. Pivot Ministries operated the Building as a halfway house from 1975 to 2015 for

at least 17 residents. Most of the residents of Pivot Ministries had contact with the criminal

justice system, including, probation, parole, or supervised release, were recovering from alcohol

or drug abuse, and sought to obtain long-term recovery and sobriety to successfully reenter

society.

28. Pivot Ministries did not provide medical in-patient or out-patient treatment

services for its residents at the Building and did not possess any licenses to perform medical

treatment there. Pivot Ministries' use of the Building focused on the clients' social rehabilitation

through education training to better their interpersonal skills, conflict resolution, self-perception

issues, and social skills. The goal of this rehabilitation was to provide residents with the

confidence to meet the challenges of living independently, and to re-enter society and live on

their own. To be eligible to live at the property, residents had to remain sober.

29. Pivot Ministries did not have a special permit to use the Building as a halfway

house, and it has never obtained a special permit to operate a halfway house. Pivot Ministries'

operation of the Building became legally nonconforming under Connecticut General Statute § 8-

2 when the City's Planning and Zoning Commission amended the Zoning Regulations to allow

halfway houses in the C Residence Zone by special permit. Pivot Ministries' use also became

legal nonconforming several years earlier as a "philanthropic or eleemosynary" use when the

Zoning Regulations were amended to eliminate such use from the C Residence Zone.


30. In or around 2012, Pivot Ministries had begun to run low on the financial

resources necessary to maintain operation of the facility to ensure its disabled residents'

successful recovery and return to society. Pivot Ministries sought to sell the Property to another

entity that could continue to operate the Building as a halfway house. Pivot learned that Firetree

had been searching for an appropriate property in the area for use as a halfway house. Pivot

contacted Firetree to see if Firetree would be interested in the Property for use as a halfway

house, since Pivot's mission was similar to Firetree's.

31. After initial discussions with Pivot Ministries, Firetree undertook extensive due

diligence to determine whether it could continue the same use of the Building as had been

conducted by Pivot Ministries. Firetree met with and exchanged written communication with

City Zoning Staff to determine whether Firetree's intended use of 17 Quintard Avenue as a

halfway house would be allowed.

32. In February 2014, Firetree contacted the ZEO to inquire whether a subsequent

purchaser could continue to use the 17 Quintard Avenue property as it has been used by Pivot

Ministries. The ZEO responded by letter on March 13, 2014 and stated that the "referenced

property was issued a certificate of zoning compliance on November 14, 1975 for a rehab center

owned and operated by Norwalk Area Ministry and Philanthropic Intuition [sic]. Additionally, a

certificate of occupancy was issued on March 25, 1976 for a change of use of existing 2 Vi story

frame residence to a drug rehab center. Interior and exterior alterations. A new zoning permit

could be issued for the same use."

33. Before Firetree contracts with the BOP to establish a halfway house, Firetree

notifies municipal leadership of its proposal to learn if there is any objection to the proposed use.

8


34. On September 5, 2014, Firetree wrote separate letters to City of Norwalk Mayor

Harry Rilling, President of the Norwalk Common Council Douglas Hempstead, and Chief of

Police Thomas Kulhawik to notify them that Firetree had submitted an offer to provide halfway

house services for federal offenders releasing to Fairfield County, Connecticut. The letters each

stated in part that "Firetree, Ltd. has submitted an offer to provide Residential Re-entry Center

services or 'halfway house' services for federal offenders releasing to Fairfield County,

Connecticut. This action is being taken in response to a request for proposals (RFP) issued by

the Federal Bureau of Prisons (BOP)... . As part of the RRC contracting process, the BOP

requires that all offerors notify and seek input from the local law enforcement authority and two

levels of locally elected government officials. This letter will serve as documentation of partial

satisfaction of this r equ i r emen t . . Firetree, Ltd. is proposing to provide these services at 17

Quintard Avenue, Norwalk, Connecticut." The letter goes on to include two pages of details

about the intended use of the Premises at 17 Quintard Avenue as a halfway house.

35. Firetree received no response to any of its September 5, 2014 letters.

36. Firetree and Pivot Ministries jointly submitted an application for zoning approval

and zoning compliance on June 2, 2015. The ZEO completed the top part of the application and

identified the use as "renovation to existing residence - rehab center per attached back-up

documentation." Floor plans attached to the application depicted 18 beds in the existing building

and showed the use to be a halfway house. The ZEO approved the application on June 11, 2015

and issued a zoning permit.

37. In reliance on the ZEO's approval of the zoning permit, Firetree purchased the

Property from Pivot Ministries for $429,000 in July 2015.

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In reliance on the ZEO's approval of the zoning permit, Firetree contracted with 38.

the BOP to provide halfway house services at the Building in Norwalk to individuals coming

from the BOP.

39. After purchasing the Building, Firetree hired an architect and contractor to

renovate the Building. In or about March of 2016, Firetree's architect, Mark Demmerle, went to

the City's Planning & Zoning Department to review the file for the 17 Quintard Avenue

property. While there, Mr. Demmerle spoke with the ZEO to inform her that he would be

drawing plans on behalf of Firetree and that Firetree would submit a building permit in short

order. At this time, the ZEO was aware that Firetree wished to use the Building as a halfway

house for individuals released from federal prison.

40. Later in March and again in April of 2016, Firetree applied for building permits to

renovate the Building for use as a halfway house. Since the Building had been used as a halfway

house for 40 years by Pivot Ministries, most of Firetree's improvements were non-structural in

nature. The application identified the use group as I-1 - the use group for transitional living

facilities/halfway houses with more than 16 people. Floor plans were attached to the building

permit application showing 18 beds in the halfway house.

41. The building permit applications were approved by the City of Norwalk Building

Official in April 2016. In reliance upon issuance of the building permits, Firetree undertook

renovation work from March 2016 to August 2016 at a cost of approximately $600,000. Work

was performed in strict conformance with the building permit that had been issued.

42. In July, 2016, neighbors organized fierce opposition to Firetree's halfway house

at the time Firetree sought issuance of a CO. Neighbors created the Quintard Avenue

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Neighborhood Association ("QANA"). Since that time, City Mayor Harry Rilling has been in

close communication with QANA members, has met with QANA members and other residents

opposed to Firetree on several occasions, and has exerted political pressure over the ZEO and

other City zoning staff to ensure that Firetree cannot use the Building as a halfway house,

including writing to the ZEO and Mr. Wrinn on July 22, 2016 to "quell some of the uproar."

On or about August 17, 2016, the City's building officials determined that the 43.

renovation work had been completed satisfactorily and recommended that a certificate of

occupancy ("CO") be issued to Firetree to allow use of the Property. In August of 2016, Firetree

requested that the CO be issued so that Firetree could begin to use its Property as a halfway

house.

44. When Firetree's architect consulted Michael E. Wrinn, Assistant Director of

Planning and Zoning, in August of 2016 regarding the status of the CO, Mr. Wrinn stated "I

wouldn't touch that with a ten foot pole," that he would not issue a CO, and sarcastically stated

"Good luck with that."

45. In late August of 2016, Mayor Rilling and his wife attended a rally at 19 Quintard

Avenue (directly abutting the 17 Quintard Avenue property) to oppose Firetree, with upwards of

100 residents there. Common Council members Travis Simms, Phaedral Bowman, and Richard

Bonenfant, Senate Majority Leader Bob Duff, and a representative from Congressman Jim

Himes' office were also in attendance, and, upon information and belief, all spoke to oppose

Firetree as follows:

Mayor Rilling stated that the City's Zoning Regulations do not permit halfway

houses on Quintard Avenue and that the Norwalk Building Department would not

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issue Firetree a CO. Mayor Rilling added that Firetree is "going to pushback and

I am sure that we haven't heard the last.... Believe me, we have a wonderful file

that's in place."

Common Council member Simms stated: "I would just say now on the record that

if that is something that is being proposed currently I would oppose it. This is

nothing different than the Al Madany mosque that was going to be put on Fillow

Street and the residents came out at l a r g e . We want to let you know you have

support from us going forward."

Common Council member Bowman stated to the residents "I am here to support

you all, I understand how you are feeling, and then seeing how close the yard is I

understand how you are feeling. My only disappointment ... is that Zoning didn't

inform them [Firetree] earlier before they put the work into it. Because then we

could have found a swap or found a better location. So now, this is heading into a

direction where the city is going to have to handle some things, probably have to

pay someone, pay them."

Common Council member Bonenfant told the residents "I can sympathize with

the plight. Who the heck wants a house that might have 19-20 prisoners next to

you, you don't know what they did, you don't know how long they're going to be

there."

Senate Majority Leader Bob Duff stated "I think here in one spot, you've got

local, state, federal folks, all three layers of government, all very much on the

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same page, going in the same d i rec t ion . . I think that sends a very loud and

strong message."

Mayor Rilling's wife, Lucia Rilling, ended the discussion by stating "Trust me.

Somebody is watching that they [Firetree] don't advance to the next level. Trust

me, they are watching."

On August 30, 2016, Senate Majority Leader Duff wrote to U.S. Senator Chris 46.

Murphy, U.S. Senator Richard Blumenthal, and U.S. Congressman Jim Himes to oppose

Firetree's halfway house at the Property, writing: "The purpose of my letter is to ask you to

consider opposing the project and contact the Federal Bureau of Prisons (FBP) asking them to

decline signing a contract with Firetree for this property in Norwalk. According to reports, the

BOP renders services from Firetree and will house an undisclosed number of former inmates

there. Upon examination of the facts, the lack of communication from Firetree and sound

neighborhood opposition, I am strongly against this proposal."

47. Following the neighborhood opposition rally - and at the last minute, when all of

the improvements to the Building had been completed and the City's Building Department had

determined that a CO could be issued - the City denied issuance of the CO.

48. The City, through its Corporation Counsel, wrote to Firetree on August 30, 2016

to state that because "the existing zoning permit is for Pivot Ministries to operate a drug

rehabilitation facility [and] the President of Firetree Limited has indicated that Firetree intends to

operate a new facility on the premises which may include the operation of a halfway house,"

Firetree must "submit a new application for the new operator of your facility, which properly sets

forth any existing and proposed uses of the building."

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49. Firetree was told by the ZEO for the first time on October 13, 2016 that it needed

an additional "tenant occupancy permit" in order to occupy the Property, even though its

proposed use was substantially the same as Pivot Ministries' previous legally protected

nonconforming use of the Property.

To move forward, Firetree followed the ZEO's suggestion and on January 13, 50.

2017 filed an application for a tenant occupancy permit, even though such an application was not

required by the Zoning Regulations. Firetree submitted extensive materials with its application,

including affidavits from the Executive Director of Pivot Ministries and General Counsel for

Firetree to describe the substantial similarity in Pivot Ministries' historic use and Firetree's

proposed use of the Property.

51. During this time, Mayor Rilling was in close communication with the QANA and

other neighborhood opponents regarding Firetree. On February 6, 2017, Mayor Rilling wrote to

one member of the QANA: "We are preparing our response as the use is still not permitted. This

will most likely be appealed in court and we will need neighborhood support."

Two days later, on February 8, 2017, the ZEO denied Firetree's tenant occupancy 52.

permit application in a one paragraph letter. The denial letter states that "based on the materials

you have submitted, our knowledge of the previous use of the property made by Pivot Ministries

and permits issued by this office we cannot issue a zoning permit."

In her February 8, 2017 written denial, the ZEO failed to articulate any basis or 53.

reason to support her arbitrary determination that Firetree's proposed use of the Building was not

protected as a legal nonconforming use. Despite requests after February 8, 2017, the ZEO failed

or refused to articulate any rational basis for her determination.

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Aggrieved by the ZEO's action, Firetree appealed the ZEO's February 8, 2017 54.

decision to the City's ZBA, pursuant to Connecticut General Statutes § 8-6 and Zoning

Regulations § 118-1410.A(1). The appeal was taken for the purpose of overturning the denial of

the tenant occupancy permit on the grounds that the ZEO incorrectly failed to recognize that

Firetree's intended use of the Building was a legally protected nonconforming use. Firetree also

requested that the ZBA overturn the denial and order that a tenant occupancy permit be issued as

reasonable accommodations under the Federal Fair Housing Amendments Act ("FHA"), 42

U.S.C. § 3601 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et

seq., even if the ZBA determined that the use was not legally nonconforming.

55. Although Firetree believed that it was entitled as a matter of right to a tenant

occupancy permit as a legally protected nonconformity, Firetree also filed with the ZBA an

application for a special exception, pursuant to Zoning Regulations §§ 118-800.C(4) and 118-

1410.A(2)(d), to change a nonconforming use to another nonconforming use.

56. Once Firetree had filed its appeal and special exception application, City zoning

staff, including the ZEO, encouraged those opposed to Firetree's halfway house to attend the

May 4, 2017 public hearing to fight Firetree's proposed halfway house.

57. By email dated April 3, 2017, Mr. Wrinn wrote to the ZEO: "AJR - Now that we

have a date, lets [sic] let the neighbors know of the date, don't want to wait for the 10 day notice

the applicants have to send out. I suspect you have an email of the most interested neighbors? If

they can be of any help at the hearing, lets [sic] get them involved early." The ZEO responded:

"Will do today." Mr. Wrinn then added: "Thanks, should make it easier on us in the long

run.. . ." The ZEO and Mr. Wrinn notified neighborhood opponents of the appeal later that day.

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58. The ZBA opened the public hearing to consider Firetree's appeal on May 4, 2017.

Residents opposed to Firetree's application packed the room. Mayor Rilling and his wife were

also in attendance.

59. The crowd was unruly, shouting profanities while Firetree presented its appeal,

and repeatedly interrupted Firetree during the course of its presentation. No member of the ZBA

did anything to quell the uproar. The ZBA's lack of control of the crowd allowed such behavior

to continue.

60. Despite the crowd's inappropriate and intimidating behavior, and the ZBA's

feeble efforts, Firetree continued with its presentation of the appeal. Firetree presented evidence

demonstrating that its proposed halfway house was substantially similar to the halfway house use

that had been performed by Pivot Ministries at the very same location for 40 years. Firetree also

presented evidence that the City and its zoning staff had known all along that Firetree intended to

use the Building as a halfway house for individuals coming from the BOP, but had denied

Firetree a CO at the last minute after Firetree had purchased the Building, at a contract price of

$429,000, and had completed renovations to the Building at a cost of $600,000. Firetree also

presented evidence that the residential group setting provided by the Building would be

therapeutically beneficial and would aid in the recovery of its disabled residents. Further,

Firetree presented evidence showing that its proposed use was consistent with the character of

the C Residence Zone and that it would actually increase safety in the area as compared to when

Pivot Ministries had operated its halfway house.

61. At the May 4 public hearing, Firetree also presented evidence to the ZBA

showing that the proposed residents at its Norwalk halfway house were a protected class under

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state and federal law and that the ZBA was required to consider Firetree's requests for

reasonable accommodations to permit the use of the Building as a halfway house for the

disabled. Firetree presented evidence demonstrating its proposal to establish the proposed

halfway house as supportive housing for its disabled clients was subject to the reasonable

accommodation requirements of the FHA and the ADA, and that it met the required elements for

the ZBA to sustain its appeal, overturn the decision of the ZEO, and order that a tenant

occupancy permit be issued as a reasonable accommodation.

62. Firetree noted that the accommodations were necessary to aid the Norwalk

facility's disabled residents in their recoveries and to also ensure the financial viability of

Firetree.

63. Recovering alcohol and drug addicts who will live at Firetree must live in a group

setting in a residential neighborhood to provide a stable and drug-free living situation. The

residential neighborhood setting is especially necessary because it will help promote addicts'

recovery by avoiding the temptations that the presence of drug trafficking can create, lessening

the likelihood of drug or alcohol relapse, promoting self-esteem, and increasing the likelihood

that they will remain sober.

64. Living in a group setting in a residential neighborhood will help promote self-

esteem amongst the mentally impaired by enabling them to live in less of an "institutional"

setting and will foster greater acclimation and a successful return to society that would not

readily follow in another setting. The residential setting will also help to alleviate anxiety,

depression, stress and other symptoms of mental illness.

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65. Firetree presented evidence and data showing that its proposed Norwalk halfway

house would not be financially viable with fewer than 15 beds fully occupied.

66. The City's Zoning Regulations prohibit a halfway house in a C Residence zone

serving more than 12 individuals who are disabled. Firetree cannot operate a halfway house for

12 individuals because it will suffer a financial loss.

67. The disabled individuals seeking to live at the Building, such as John Doe and

Jane Doe, are a "family' within the meaning of 42 U.S.C. § 3602(c).

The Building is a "dwelling" within the meaning of 42 U.S.C. § 3602(b). 68.

69. Members of the public - both during the public comments portion of the hearing

or while the hearing still open - opposed Firetree's proposed use based on the disabilities of the

residents. Comments included the following:

"Firetree may argue that felons suffer from drug and alcohol problems. As to this,

I can say the following: I am a board certified psychiatrist who treats many such

individuals and understand their behavior and psychology in depth. Substance

abuse is a chronic, relapsing condition characterized by multiple recurrences,

impulsive and violent behavior, recklessness and sociopathic behavior. Halfway

houses for substance abusers attract drug dealers and are often the scenes of

violent crimes and rampant criminal activity."

"As a physician, I 'm very familiar with the needs of handicapped people, the

supervision they'd require, the hazardous material disposal necessary. This is a

family neighborhood, with children running around, etc. Not appropriate for a

group home."

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"Quintard Avenue is not the proper location for a halfway house for men and

women. It is a nice family neighborhood and it is near schools and churches. Can

you imagine what type of activity will go on with 19 low class men and women in

tight surroundings? ... The building at 17 Quintard Ave could be lifted off it 's

[sic] foundation, put on a large barge and floated to a more fitting location."

70. One member of the public wrote: "If you believe in Vampires, you know that they

have to be invited in. And once invited, they are impossible to get rid of. Well, this applicant is

Norwalk's vampire. Say no to Firetree at the door."

71. Other members of the public commented while the public hearing was open that

Firetree's claims under the FHA and the ADA were "nonsense," manufactured for litigation, and

that Firetree's residents are not disabled. QANA issued a statement saying: "Firetree's disabled

housing accommodation claim has no basis. It is simply a ruse as a pre-cursor to a lawsuit and to

avoid stating actual use of felon housing."

72. Further, members of the public submitted to the ZBA inflammatory articles about

halfway houses for the disabled which claimed that they will lead to negative impacts such as

drug sales, theft rings, prostitution and gangs.

73. The ZBA closed the May 4 session of the public hearing and rescheduled it to be

continued at a later date.

74. After the May 4 session of the hearing ended, Firetree learned that ZBA member

Keith Lyon sent an email to the ZEO stating: "Aline, just want you to know that I will support

your decision and oppose both the Appeal and the Special Exception. Furthermore, Mr. Lyon

stated in this email that "It was an outrage to threaten the City under ADA or any other statute as

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part of their presentation. I have written separately to Andy [Conroy] to volunteer to attend any

meetings/briefings/discussions that we want to have before the continuation meeting."

75. After the May 4 session of the hearing, Firetree also learned that ZBA Chair

Andrew Conroy and another member of the ZBA received an email from Common Council

member Richard Bonenfante stating: "Andy and Joe, Hey guys, I 'm asking you to deny the

prison house application that is before you this evening May 4 at your ZBA meeting. I went out

there last summer a few times including a rally in the backyard next door. The houses are close

to each other and it was clearly an issue that young children playing would be within a few feet

of nineteen prisoners watching them. Please have compassion for the residents, there are many

good families on that street and they take pride in the neighborhood."

76. Approximately one hour prior to the start of the May 4 session of the public

hearing, Chair Conroy copied and pasted the text of Common Council Member Bonenfante's

email and sent it to all other members of the ZBA, but deleted the text "Andy and Joe," which

appeared in the original email.

77. After learning of Mr. Lyon's and Mr. Conroy's actions, Firetree requested that

they recuse themselves from further participation in Firetree's appeal. ZBA Member Lyon

agreed to recuse himself, but Chair Conroy refused.

78. On May 19, 2017, Chair Conroy sent an email to Mr. Lyon to inform him that he

had been contacted by a journalist regarding Mr. Lyon's recusal. Chair Conroy cautioned: "I do

suggest however, that this particular appeal before the ZBA in its incomplete state not be

discussed. The fact that you recused yourself is public knowledge, but your views on the appeal

are not known. I recommend waiting until the appeal is concluded to go into that."

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Mr. Conroy failed to follow his own advice, as a May 20 newspaper article 79.

published an interview with Chair Conroy regarding Mr. Lyon's recusal and the Chair's decision

not to recuse himself. Mr. Conroy is quoted as saying that the prejudicial statements made by

Mr. Lyon were "not any great crime." He added that he refused to recuse himself because he

thought he was "being eminently fair." He concluded by disparaging Firetree and the arguments

that Firetree had made in support of its appeal, including claims under the FHA and the ADA, by

stating that Firetree is going to "come up with 50,000 more things. I think they're already

figuring that they're going to court ... [s]o, they are behaving that way and that's unfortunate

because I don't know that that's the outcome."

80. The public hearing on Firetree's appeal resumed on June 7, 2017. Firetree

renewed its request that Chair Conroy recuse himself but he again refused to do so.

81. Members of the public continued to speak in opposition to Firetree. One resident

threatened to sue Firetree and its representatives and lawyers who appeared on its behalf at the

hearing if Firetree were allowed to operate a halfway house at the Building.

82. After members of the public had concluded public comment, Chair Conroy took a

poll of every member of the public in attendance as to whether Firetree had reached out to them

regarding its proposed use of the Property. Firetree, through counsel, objected to Chair Conroy's

actions and again renewed its request for Mr. Conroy's recusal. Mr. Conroy refused.

83. Firetree proceeded with its rebuttal presentation and the public continued to

interrupt, shout disparaging remarks, and hurl profanities directed towards Firetree.

84. The ZBA closed the public hearing and commenced deliberations.

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85. During deliberations, ZBA Member Lee Levey stated "Unfortunately, I have a

former sister in-law who's alcoholic. She was convicted on felony DWI charges because she

was in three accidents, fortunately none of them fatal. And she was sent to prison for two years.

They then released her to a halfway house. She found the conditions so deplorable and the help

she was getting so poor, she actually elected to go back to prison to finish her sentence. So, I got

to question these kind of programs." Firetree did not know of Mr. Levey's personal interest and

bias until he made this statement during deliberations. Firetree could do nothing at this point

since the public hearing had been closed.

86. The ZBA denied Firetree's appeal by a vote of 4-1. Although the ZBA found that

Firetree's proposed use was not exactly the same as the use conducted by Pivot Ministries, ZBA

members were in agreement that the uses were similar in nature.

87. The ZBA denied the appeal on the ground that Firetree was unable to establish its

use as a legal nonconforming use.

88. Legal notice of the ZBA decision denying Firetree's appeal was published on

June 20, 2017.

89. The ZBA's determination was improper, arbitrary, without reasonable basis, and

violated Plaintiffs' rights under state and federal law in one or more of the following respects:

Denying Firetree the ability to use the Building as a community living a.

arrangement for individuals with disabilities because of the disability or

handicap of the people intending to reside there;

b. Denying John Doe and Jane Doe the ability to live in a housing

arrangement of their choice;

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Enforcing the City's Zoning Regulations to segregate and reject Plaintiffs' c.

proposed use of the Building because of the disability or handicap of the

people intending to reside there;

d. Applying the Zoning Regulations differently to Plaintiffs because of the

disability or handicap of the people intending to reside in the Building;

Enacting facially discriminatory Zoning Regulations that relate solely to e.

individuals with disabilities and impose certain requirements on the

disabled that are not imposed on individuals without disabilities;

Applying the Zoning Regulations in a manner that has a significantly

adverse or disproportionate impact on individuals with addiction recovery

disabilities and mental health disabilities;

Requiring that Firetree obtain a tenant occupancy permit even though such g.

a requirement does not exist in the plain language of the Zoning

Regulations and has not been applied to other legally protected

nonconforming uses in the City;

h. Refusing to sustain Firetree's appeal and overturn the denial of the tenant

occupancy permit based on a subjective and unreasonable application of

Connecticut General Statutes§ 8-2 and Zoning Regulations § 118-800

regarding nonconforming uses, because of the disability or handicap of the

people intending to reside there;

Denying Firetree the ability to sell, rent, or otherwise make the Building

available for a permitted use or in a manner consistent with permitted uses

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in the C Residence Zone, significantly impacting disabled individuals in

an adverse or disproportionate manner;

Failing or refusing to address Plaintiffs' requests for reasonable

accommodations;

k. Failing or refusing to make reasonable accommodations to the City's

Zoning Regulations necessary to allow Firetree to use the Building as a

halfway house, which is a permitted use and is consistent with permitted

uses and the character of the C Residence Zone. Even if Firetree did not

establish that its intended use of the Building was a legal nonconforming

use, an accommodation to sustain its appeal and overturn the denial of the

tenant occupancy permit is necessary to afford Plaintiffs an equal

opportunity to use, enjoy, or maintain the Building as a dwelling for

disabled individuals;

Refusing to make reasonable accommodations to the Zoning Regulations

necessary to overturn the denial of the tenant occupancy permit in order to

make the Building available to Firetree where such accommodations

would not impose a fundamental alteration of the C Residence Zone or

create any undue financial or administrative burdens on the City of

Norwalk;

Refusing to sustain Firetree's appeal and overturn the denial of the tenant m.

occupancy permit to allow operation of the Building as a halfway house

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for disabled individuals by relaxing the halfway house special permit

requirements for the C Residence Zone;

Refusing to sustain Firetree's appeal and overturn the denial of the tenant n.

occupancy permit despite acknowledging that Firetree's proposed use was

for a protected class under the FHA and the ADA.

- 25 -


FIRST CLAIM FOR RELIEF

(Federal Fair Housing Act, 42 U.S.C. § 3601 et seq.)

1-89. Plaintiffs' allegations in paragraphs 1 through 89 above are incorporated by

reference herein.

Plaintiffs are "aggrieved person[s]" within the definition of 42 U.S.C. § 3602(i) 90.

and as used in 42 U.S.C. § 3613(a)(1)(A), who have been injured by Defendants' discriminatory

conduct and have suffered damages.

91. John Doe and Jane Doe are persons with a disability or handicap, and Firetree is

associated with, and assists in providing housing for, persons with disabilities or handicaps as

defined in 42 U.S.C. § 3602(h).

92. Defendants' discriminatory practices against Plaintiffs based on the handicap of

the people intending to reside in the Building has caused Plaintiffs to suffer economic harm and

other loss.

93. Defendants' actions constitute intentional discrimination in violation of Plaintiffs'

rights under the Fair Housing Act, 42 U.S.C. §§3604(f) and 3617.

94. Defendants' discriminatory actions have resulted in disparate impact on the

Plaintiffs in violation of the Fair Housing Act, 42 U.S.C. §§ 3604(f) and 3617.

95. Defendants' refusal to allow the proposed use by Plaintiffs and to sustain

Firetree's appeal, overturn the decision of the ZEO, and order that a tenant occupancy permit be

issued violates Plaintiffs' rights to a reasonable accommodation under the Fair Housing Act, 42

U.S.C. §§ 3604(f) and 3617.

- 26 -


96. Section 118-350 of the City's Zoning Regulations is facially discriminatory by

limiting halfway houses to disabled individuals and subjecting disabled individuals to certain

zoning requirements that are not imposed on individuals without disabilities, in violation of Fair

Housing Act, 42 U.S.C. §§ 3604(f) and 3617.

SECOND CLAIM FOR RELIEF

(Connecticut Fair Housing Act, Conn. Gen. Stat. §§ 46a-64)


reference herein.

90. Plaintiff Firetree is associated with, and assists in providing housing for, persons

with disabilities as defined in the Connecticut Fair Housing Act, Conn. Gen. Stat. §§ 46a-64b(8),

46a-64c.

91. Defendants' discriminatory practices against Plaintiffs based on the disability of


other loss.

Defendants' refusal to sustain Firetree's appeal, overturn the decision of the ZEO, 92.

and order that a tenant occupancy permit be issued constitutes intentional discrimination in

violation of Plaintiffs' rights under the Connecticut Fair Housing Act, Conn. Gen. Stat. § 46a-

64c.

93. Defendants' discriminatory actions have resulted in disparate impact on the

Plaintiffs in violation of the Connecticut Fair Housing Act, Conn. Gen. Stat. § 46a-64c.

- 27 -


94. Defendants' refusal to allow the proposed use by Plaintiffs, to sustain Firetree's

appeal, overturn the decision of the ZEO, and order that a tenant occupancy permit be issued, to

accommodate the proposed use violated Plaintiffs' rights under the Connecticut Fair Housing

Act, Conn. Gen. Stat. § 46a-64c.



zoning requirements that are not imposed on individuals without disabilities, in violation of the

Connecticut Fair Housing Act, Conn. Gen. Stat. § 46a-64c.

THIRD CLAIM FOR RELIEF

(Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.)


reference herein.

Defendant ZBA is a public entity within the definition of 42 U.S.C. § 12131(1) 90.

and as used in 42 U.S.C. § 12132.

91. Defendants' discriminatory practices against Plaintiffs based on the handicap of


other loss.

Defendants' refusal to sustain Firetree's appeal, overturn the decision of the ZEO, 92.

and order that a tenant occupancy permit be issued to accommodate the proposed use constitutes

intentional discrimination against persons with disabilities in violation of Plaintiffs' rights under

the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. and its implementing regulations.

- 28 -


93. Defendants' discriminatory actions have resulted in a disparate impact on the

Plaintiffs in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. and its

implementing regulations.

94. Defendants' refusal to allow the proposed use by Plaintiffs, to sustain Firetree's

appeal, overturn the decision of the ZEO, and order that a tenant occupancy permit be issued to

accommodate the proposed use violates Plaintiffs' rights under the Americans with Disabilities

Act, 42 U.S.C. § 12101 et seq. and its implementing regulations.



zoning requirements that are not imposed on individuals without disabilities, in violation of the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. and its implementing regulations.

FOURTH CLAIM FOR RELIEF

(Equal Protection Clause 42 U.S.C. § 1983)


reference herein.

90. All acts or omissions of Defendants relevant to this action were performed under

color of State law.

91. Defendants have deprived Plaintiffs of their constitutional rights secured by the

Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by

arbitrarily and irrationally denying equal property rights to persons with drug and alcohol

- 29 -


addiction recovery disabilities and mental health disabilities, and entities providing housing to

individuals with those disabilities.

92. Defendants have further deprived Plaintiffs of their federally secured rights under

the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. and the Americans with Disabilities Act, 42

U.S.C. §§ 12101 et seq.

FIFTH CLAIM FOR RELIEF

(Equal Protection Connecticut Constitution, Article I, § 5)


reference herein.

90. All acts or omissions of Defendants relevant to this action were performed under

color of State law.

91. Defendants have deprived Plaintiffs of their constitutional rights secured by the

Equal Protection Clause of Article I, § 5 of the Connecticut Constitution by arbitrarily and

irrationally denying equal property rights to persons with drug and alcohol addiction recovery

disabilities and mental health disabilities, and entities providing housing to individuals with

those disabilities.

92. Defendants have further deprived Plaintiffs of their federally secured rights under

the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. and the Americans with Disabilities Act, 42

U.S.C. §§ 12101 et seq., and their rights under the Connecticut Fair Housing Act, Conn. Gen.

Stat. § 46a-64c.

- 30 -


SIXTH CLAIM FOR RELIEF

(Appeal of Denial of Appeal under Connecticut General Statutes § 8-8)


reference herein.

90. As the property owner and applicant, Firetree is statutorily and classically

aggrieved by the ZBA's decision for purposes of taking this appeal because it has a specific,

personal, and legal interest in the decision and its interests are specifically and injuriously

affected by the decision.

91. The ZBA's actions in denying Firetree's appeal were illegal, arbitrary, capricious,

contrary to law and the substantial evidence in the record, and an abuse of the powers vested in

the ZBA under the Connecticut General Statutes and City of Norwalk Zoning Regulations for

one or more of the following reasons:

The ZBA denied the Appeal despite the fact that Firetree's proposed use a.

of the Building is protected as a legal nonconforming use;

b. The stated reasons for the ZBA's denial are pretextual and based on

discriminatory animus against disabled residents seeking to reside in the

Building;

The ZBA denied the Appeal in violation of Plaintiffs' federal rights under c.

the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., the Americans with

Disabilities Act, 42 U.S.C. §§ 12101 et seq., and the Equal Protection

clause of the Fourteenth Amendment to the United States Constitution;

- 31 -


d. The ZBA improperly determined that Firetree required a tenant occupancy

permit to use the Building as a halfway house;

The ZBA, and all other Defendants, are estopped from preventing e.

Firetree's use of the Building as a halfway house, because Defendants'

actions were intended to induce Firetree to believe that it could use the

Building as a halfway house; Firetree exercised due diligence to determine

whether it could use the Building as a halfway house; Firetree changed its

position in reliance on Defendants' actions when it purchased the Building

and expended $600,000 to renovate the Building; and Firetree would

suffer substantial loss if Defendants were permitted to negate their actions;

The ZBA's actions deprived Firetree of a fair opportunity to be heard, and

violate principles of fundamental fairness;

The ZBA was illegally constituted with at least three members who had g.

conflicts of interest in violation of Connecticut General Statutes § 8-11;

h. The ZBA was illegally constituted with members who had illegally

predetermined the result of Firetree's appeal;

The ZBA arbitrarily and unreasonably failed or refused to consider

evidence relating to Firetree's claims under the Fair Housing Act and the

Americans with Disabilities Act;

The ZBA's decision is not reasonably supported in law or fact.

- 32 -


WHEREFORE, Plaintiffs respectfully demand judgment as follows:

Enter a declaratory judgment finding that the foregoing actions of Defendants violate the

Fair Housing Act, 42 U.S.C. § 3601 et seq.; the Americans with Disabilities Act, 42

U.S.C. § 12101 et seq.; and the equal protection clauses under the Connecticut and

United States constitutions.

As Plaintiffs have suffered irreparable harm and are without adequate remedy at law,

Plaintiffs request that the Court enter an order (a) requiring that Defendants issue Firetree

a tenant occupancy permit and any other related permits to use the Building as a halfway

house, and (b) enjoining Defendants from interfering with Plaintiffs' use of the Building

as a halfway house.

Plaintiffs' attorneys' fees, costs, and disbursements for bringing this action; 3.

An award of punitive damages in an amount sufficient to deter the ZBA, its agents, and 4.

the individual defendant from such arbitrary, capricious, and discriminatory acts in the

future;

An award of actual damages to Firetree in an amount that would fully compensate it for

the diversion of its resources, the frustration of its mission, and the inability to use its

property to assist the disabled resulting from Defendants' denial of housing to people

with disabilities and from Defendants' reintroduction of discriminatory animus into the

housing market;

As to the Sixth claim pursuant to Connecticut General Statutes § 8-8, sustain the 6.

administrative appeal of Firetree and direct the City of Norwalk ZBA to overturn the

ZEO's decision and order that a tenant occupancy permit be issued; and

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An award of such other relief as the Court may deem just and proper.

PLAINTIFFS,

FIRETREE, LTD.; JOHN DOE; and JANE DOE

By /s/Frank F. Coulom, Jr. Thomas P. Cody [ct10058] Frank F. Coulom, Jr. [ct05230] Evan J. Seeman (ct28546) Robinson & Cole LLP 280 Trumbull Street Hartford, CT 06103-3597 Tel. No.: (860) 275-8200 Fax No.: (860) 275-8299 E-mail: [email protected]; [email protected]; [email protected]

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