Firetree, Ltd. v. Norwalk

          RULING ON MOTION TO DISMISS

          Michael P. Shea, U.S.D.J.

         I. Introduction

         Plaintiff Firetree, Ltd. (“Firetree”) brings this suit against defendants^[1] for denying it various permits required for it to operate a halfway house in Norwalk, Connecticut. Firetree alleges that the defendants' actions were motivated by discriminatory animus against the future residents of the halfway house, whom Firetree alleges are disabled. Firetree sets out the following claims based upon these allegations: (i) violation of the Fair Housing Act, 42 U.S.C. § et seq. (“FHA”) (count one); (ii) violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (count two); (iii) violation of the Rehabilitation Act, 29 U.S.C. § 794 et seq. (count three); (iv) violation of Firetree's right to substantive due process and procedural due process (count four); (v) violation of Firetree's rights to equal protection and against retaliation (count five); (vi) violation of the Connecticut Fair Housing Act, Conn. Gen. Stat. § 46a-64 et seq. (“CFHA”) (count six); (vii) mandamus under Conn. Gen. Stat. § 52-485 et seq. (against defendants Ireland, Rochefort, and Wrinn) (count seven); (viii) an appeal of the City of Norwalk Zoning Board of Appeals' (“ZBA”) denial of a certificate of occupancy under Conn. Gen. Stat. § 8-8 (count eight); (ix) an appeal of the ZBA's denial of the plaintiff's special exception application (count nine); (x) violation of the Equal Protection Clause of Article I, § 5 of the Connecticut Constitution (count 10); and (xi) a regulatory taking in violation of Article First, § 11 of the Connecticut Constitution (count 11). Now before me is the defendants' [48] motion to dismiss Firetree's complaint under Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). For the reasons that follow, the motion is denied.

         II. Factual Allegations

         Plaintiff makes the following factual allegations, which I assume to be true.

         A. Firetree's Planned Halfway House

         Firetree “operates halfway houses in Pennsylvania and New York for individuals referred by the Federal Bureau of Prisons (“BOP”) . . . pursuant to fee for service contracts with the BOP.” (ECF No. 26, Amended Complaint (“Complaint”) at ¶ 16.) These “halfway houses provide quality transitional services to individuals associated with the criminal justice system, including many who are recovering from alcohol addiction or drug addiction, have mental health disabilities, or have physical disabilities.” (Id. at ¶ 17.) The “vast majority of individuals who reside at Firetree's halfway houses are diagnosed by the BOP as disabled with either addiction recovery disabilities, mental health disabilities, or physical disabilities.” (Id. at ¶ 22.) Firetree “expects that at least 75% of the residents at its Norwalk facility will have mental health or physical disabilities, or will be recovering from drug or alcohol dependency.” (Id. at ¶ 31.) Individuals “identified by the BOP for placement in a reentry facility [run by Firetree] may decline such a referral.” (Id. at ¶ 24.) The individuals who choose to reside in Firetree's halfway houses “must try to obtain employment” and, once employed, must pay a quarter of their pay to “the BOP to partially cover the cost of housing the residents at Firetree's halfway houses.” (Id. at ¶ 27.) Residents “may leave the facility with the permission of Firetree staff.” (Id. at ¶ 28.)

         B. Previous Use of the Property

         The property that Firetree sought to use for its planned halfway house (“the Property”) is located in the City of Norwalk's “C Residence Zone” district. (Id. at ¶ 35.) Before Firetree acquired the property, it was owned by Pivot Ministries. (Id. at ¶ 36.) Pivot Ministries “obtained zoning permits to use the Property as a halfway house.” (Id.) The zoning permits in question “variously identified the use as ‘drug rehab center (L-2 Rooming House),' ‘drug rehabilitation center,' and ‘rehabilitation center.'” (Id.). The permits “did not limit the No. of individuals who could reside at the Property, and did not place any conditions on the use of the Property.” (Id.) “Most of Pivot Ministries' residents resided at the Property as an alternative to being incarcerated, had been recently released from prison, or had regular contact with the criminal justice system, including probation, parole, or supervised release.” (Id. at ¶ 37.) Pivot Ministries used the Property in this manner through 2015. (Id.)

         During this period, Pivot Ministries' use of the Property as a halfway house “became legally nonconforming in two ways: (1) when the [City of Norwalk (“City”)] amended the Building Zone Regulations in 1979 to remove ‘eleemosynary' uses as a permitted use in the C Residence Zone, and (2) when the City amended the Building Zone Regulations in 1989 to add a definition of the term ‘halfway house' and to allow halfway houses in the C Residence Zone with special permit approval from the Norwalk Zoning Commission.” (Id. at ¶ 39.) “In 2016, the City's Assistant Director of Planning and zoning found that Pivot Ministries' use of the Property was legally nonconforming.” (Id.) “Since 1989, section 118-350 of the Building Zone Regulations” has provided that “a halfway house for persons under the jurisdiction of the Department of Corrections shall not be permitted.” (Id. at ¶ 41.) “Pivot Ministries never applied for or obtained a special permit relating to its use of the Property as a halfway house.” (Id. at ¶ 42.)

         C. Fir etree's Pur chase of the Property and Subsequent Preparations

         In early 2014, Pivot Ministries contacted Firetree “to see if Firetree would be interested in buying the Property for use as a halfway house. (Id. at ¶ 46.) Firetree subsequently contacted Zoning Enforcement Officer Aline Rochefort (“ZEO”), who informed the company that “[a] new zoning permit could be issued for the same use.” (Id. at ¶ 48.) “Firetree and Pivot Ministries jointly submitted an application for zoning permit approval and zoning compliance on June 2, 2015.” (Id. at ¶ 51.) The ZEO “hand-wrote on the application form that the use is a ‘renovation to existing residence-rehab center per attached back-up documentation.'” (Id. at ¶ 51.) The ZEO “approved the zoning permit application on June 11, 2015 and issued a zoning permit (the ‘Zoning Permit').” (Id. at ¶ 53.) Relying upon this, “Firetree purchased the Property from Pivot Ministries for $429, 000 in July 2015” and “entered into a contract with the BOP to provide halfway house services at the Property to individuals being released from the BOP.” (Id. at ¶¶ 54-55.) Firetree applied for and received two building permits in the spring of 2016, and proceeded to complete renovation work at the Property at a cost of approximately $630, 000. (Id. at ¶ 59.) “Much of the renovation work undertaken by Firetree was specific to the Property's intended use and occupancy as a halfway house . . . .” (Id. at ¶ 60.) Firetree purchased various equipment for the Property and hired several employees to work at the Property. (Id. at ¶¶ 61-61.) “Firetree announced publicly that it intended to open its facility on September 1, 2016.” (Id. at ¶ 62.)

         D. Opposition to Firetree's Intended Use of the Property

         In July 2016, several residents near the Property created “the Quintard Avenue Neighborhood Association (“QANA”) and . . . encouraged its members and residents to contact the Mayor [of Norwalk] and other elected official to oppose [Firetree's intended use of the Property].” (Id. at ¶ 63.) “QANA and others opposed to Firetree sought to prevent use of the Property as a halfway house because they did not want disabled individuals in their neighborhood.” (Id. at ¶ 66.) The concentrated opposition of QANA exerted significant political pressure on Norwalk Mayor Harry Rilling, who in turn “took steps to ensure that the neighbors got what they wanted.” (Id. at ¶¶ 64-67.)

         “On or about August 17, 2016, the City's building inspectors determined that Firetree had satisfactorily completed the renovation work and recommended that a [certificate of occupancy (“C.O.”)] be issued to Firetree to occupy and use the Property.” (Id. at ¶ 68.) Firetree requested a C.O. in August of 2016. (Id.) “The issuance of the C.O. was a ministerial act”; “[b]ecause Firetree had satisfied all requirements for the issuance of the C.O., the City lacked any discretion to deny it.” (Id. at ¶ 69.) In late August of 2016, however, Mayor Rilling announced at a rally near the Property that “the City's Building Zone Regulations do not permit halfway houses on Quintard Avenue, ” and that “the Norwalk Building Department would not issue Firetree a C.O. . . .” (Id. at ¶ 71.)

         Bowing to this political pressure, the City denied the C.O. on the basis that “the existing zoning permit is for Pivot Ministries to operate a drug rehabilitation facility [and] the President of [Firetree] has indicated that Firetree intends to operate a new facility on the premises which may include the operation of a halfway house.” (Id. at ¶ 75.) The City informed Firetree that it would have to “submit a new application for the new operator of your facility, which properly sets forth any existing and proposed uses of the building.” (Id.) Firetree was also “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 it had already obtained the Zoning Permit and the Building Permit and its use of the Property would be materially the same as Pivot Ministries' previous legally protected nonconforming use of the Property.” (Id. at ¶ 78.) Under protest, Firetree “followed the ZEO's suggestion and on January 13, 2017, filed an application for a tenant occupancy permit and certificate of zoning compliance.” (Id. at ¶ 80.) “On February 6, 2017, Mayor Rilling wrote to a member of QANA to say that Firetree's application for a tenant occupancy permit was going to be denied, that the matter would likely end up in court, and that the City ‘will need neighborhood support.'” (Id. at ¶ 82.) The ZEO denied Firetree's application for a tenant occupancy permit and zoning certificate of compliance two days later in a one paragraph letter that “failed to articulate any basis or reason” for the denial. (Id. at ¶¶ 82-83.)

         Despite this setback, “Firetree appealed the ZEO's February 8, 2017 decision to the ZBA . . . .” (Id. at ¶ 84.) “At the same time Firetree filed the Appeal, in the alternative, it submitted an application for special exception approval to allow a change from one nonconforming use to another nonconforming use pursuant to Building Zone Regulations Section 118-800.C(4) (‘Special Exception Application').” (Id. at ¶ 85.) “Firetree also requested that the ZBA grant the Appeal and order that a tenant occupancy permit and certificate of zoning compliance be issued, or, in the alternative, approve the Special Exception Application, as reasonable accommodations under the [FHA], and the [ADA], even if the ZBA determined that the use was not legally nonconforming or, in the case of the Special Exception Application, did not meet the applicable criteria.” (Id. at ¶ 86.) Firetree made two requests for reasonable accommodations for its future residents during the proceedings of the Appeal. (Id. at ¶ 87.)

         The ZBA held a public hearing on Firetree's appeal on May 4, 2017. (Id. at ¶ 91.) During the hearing, a crowd of “unruly” residents “shout[ed] profanities while Firetree presented its appeal, and repeatedly interrupted Firetree during the course of its presentation.” (Id. at ¶ 92.) Firetree argued, amongst other things, “that the intended residents of its Norwalk halfway house were a protected class under state and federal law and that the ZBA was required to consider Firetree's requests for reasonable accommodations to permit the use of the Property as a halfway house.” (Id. at ¶ 94.) In particular, “Firetree presented evidence that the accommodations were necessary to aid the Norwalk facility's disabled residents because living in the group residential setting at the Property [would] affirmatively enhance disabled residents' quality of life by ameliorating the effects of their disabilities.” (Id. at ¶ 95.) Several of the residents at the hearing, however, opposed Firetree's proposed halfway house “based on the disabilities of the residents, and stereotypes about those with disabilities . . . .” (Id. at ¶ 101.) The meeting was continued to June 7, 2017, during which time two members of the ZBA expressed biases against Firetree's proposed usage of the Property. (Id. at ¶¶ 104-113.) Only one of the ZBA members, however, recused himself from the hearing. (Id. at ¶¶ 106, 109.) The ZBA eventually denied Firetree's appeal by a vote of 4-1. (Id. at ¶ 115.)

         The ZBA held subsequently “a public hearing on Firetree's Special Exception Application on the evenings of June 28, July 13, and July 27, 2017.” (Id. at ¶ 117.) This hearing, like the previous one, “was marred by procedural irregularities, discrimination, political pressure, and neighborhood opposition based on stereotypes about persons with disabilities.” (Id. at ¶ 117.) The Chairman of the ZBA, who had previously criticized Firetree in an interview with a local newspaper, refused to recuse himself from the matter. (Id. at ¶ 119.) Firetree made a No. of arguments at the hearing, including the request for a reasonable accommodation under the FHA and the ADA. (Id. at ¶¶ 123-26.) As these hearings were ongoing, Firetree commenced the instant suit on June 30, 2017, “alleging that the ZEO's actions in denying the tenant occupancy permit and certificate of zoning compliance and the ZBA's actions in denying the Appeal violated Firetree's rights under the FHA, the ADA, the United States Constitution, and state law . . . .” (Id. at ¶ 127.) “Although the ZBA had continued the public hearing from July 13 to July 27 for two reasons only, on July 26, 2017 the ZBA invited City Director of Human Relations and Fair Rent Department Adam Bovilsky to address the ZBA regarding Firetree's request for a reasonable accommodation under the ADA.” (Id. at ¶ 135.) “On July 27, 2017, Mr. Bovilsky submitted a letter to the ZBA” noting that although “he had not reviewed the entire record, based on the documents that he had read it did not appear that Firetree provided enough information as to Firetree's request for a reasonable accommodation, and that Firetree's request could not be analyzed without more.” (Id. at ¶ 136.) The ZBA “closed the public hearing on July 27” and subsequently denied Firetree's Special Exception Application on a 4-1 vote. (Id. at ¶ 137.)

         III. Legal Standard

         A. Rule 12(b)(1)

         “Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper ‘when the district court lacks the statutory or constitutional power to adjudicate it.'” Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009), quoting Makarova v. United States, 301 F.3d 110, 113 (2d Cir. 2000). In determining whether subject matter jurisdiction exists, “the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff.” Natural Resources Defense Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006). A district court may also “refer to evidence beyond the pleadings” in determining whether subject matter jurisdiction exists. Makarova, 201 F.3d at 113. “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Tranp. Sys, Inc., 426 F.3d 635, 638 (2d Cir. 2005).

         B. ...