United States District Court, D. Connecticut
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.
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