Firetree, Ltd. v. Norwalk, No. 3:17cv1088 (MPS)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Writing for the CourtMichael P. Shea, U.S.D.J.
Docket NumberNo. 3:17cv1088 (MPS)
PartiesFIRETREE, LTD., Plaintiff, v. NORWALK et al. Defendants.
Decision Date14 September 2018

FIRETREE, LTD., Plaintiff,
NORWALK et al.

No. 3:17cv1088 (MPS)


September 14, 2018


I. Introduction

Plaintiff Firetree, Ltd. ("Firetree") brings this suit against defendants1 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

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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

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"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 number 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

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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. Firetree's Purchase 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.)

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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

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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...

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