Firetree defends its federal prisoner halfway house, threatens further legal action

Updated, 10:23 a.m.: Story expanded with one sentence regarding public speakers, detail about the institutional code, clarification about Aline Rochefort’s testimony.

NORWALK, Conn. – Norwalk officials should have been aware that Firetree LTD was preparing to move federal prisoners into Quintard Avenue, the company’s lawyer said Thursday.

Firetree, before committing to buying the former Pivot House, informed Mayor Harry Rilling, then-Common Council President Doug Hempstead and Police Chief Thomas Kulhawik of its plans, Attorney Tom Cody told the Zoning Board of Appeals, seeking to reverse the Zoning department’s decision not to allow the federal prisoners’ halfway house to open at 17 Quintard Ave.

Cody’s zinger came after two hours of argument, testimony and evidence presentation, punctuated here and there by laughter from the audience.

“The remedies that are available under this federal statute include compensatory and punitive damages and recovery of attorney’s fees,” Cody said. “It’s a serious matter and Firetree in good faith has been working hard at this… (it) has committed in hard cash or lost revenue $2 million to date. So, it is very important that this relief be granted by this Board.”

ZBA Chairman Andy Conroy adjourned the hearing after 3.5 hours without getting to a vote. Firetree presented an argument via a letter two hours before the hearing, and Assistant Corporation Counsel Brian McCann needed time to research the legalities, he said.

He had also decided to end the proceedings at 11 p.m., he said, informing the people filling the Common Council chambers that they could still submit comments, and testify when the hearing continues on May 18.

Diane Lauricella, one of the last speakers, stepped aside to allow a Quintard resident to speak to the ZBA, in case she could not make it next time.

Marie Salkie first asked everyone who was against the proposal to stand up; most audience members did.

Then Salkie broke down into tears, explaining that she lives right next door to the proposed halfway house, has two small children and is six months pregnant.

“I want to go home and relax, but will I be able to do that with this next door to me? I cry because I worry about the children,” she said.

Cody, beginning his presentation, called a two-page history presented to the Board by Zoning Inspector Aline Rochefort “a tiny percentage of the events that have led us to this appeal.”

ZBA Firetree 20170505

Commissioners were presented with thick 3-ring binders of evidence and Cody went over the history of Zoning in regard to halfway houses, the history of Pivot House.

“The drug and rehab part of their mission was being accomplished through a halfway house service or form of living. that is what was going on,” Cody said.

Firetree maintains that its facility for federal prisoners is the same halfway house use that Pivot had on the property, a non-conforming pre-existing use. The city and opponents of the plan say it is not.

The accusation of deception made against Firetree stems partially from the fact that Pivot made the original application for work on the property. The Zoning permit issued in June 2015 was to Firetree/Pivot.

Commissioner Keith Lyon asked Cody if Firetree and Pivot have a legal relationship. The answer was no.

“I am asking if it would be common practice to make the application in the name of two unrelated bodies, Firetree and Pivot,” Lyon said.

“We were not involved. Our law firm was not involved,” Cody said, drawing hearty laughter from the audience, and a comment, “Got busted.”

“My guess as to what was going on was they were noting property owner/applicant,” Cody said.

Firetree sent letters to Rilling, Hempstead and Kulhawik in September 2014, Cody said.

“The letter was very explicit about who Firetree was and what they intended to do at 17 Quintard Ave.,” he said.

The three were notified that Firetree had “submitted an offer to provide residential reentry center services or halfway house services for federal offenders releasing to Fairfield County, Conn.,” he said, describing this as a mandatory part of Firetree’s application to the Bureau of Prisons.

There was no reply, he said.

Commissioner Joseph Beggan asked if the three leaders had written back with objections would that have stopped the application.

Firetree Vice President Amy Ertel said Firetree would have asked about the objections.

“If they gave us good grounds, we would have looked for another property,” she said.

“It is our contention that Firetree’s identity was well-known amongst the staff,” Cody said later.

The code on the building permit application identified the use as a transitional living facilities/halfway houses with more than 16 people, he said, referring to code I-1, which states:

“This occupancy shall include buildings, structures or portions thereof housing more than 16 persons, on a 24-hour basis, who because of age, mental disability or other reasons, live in a supervised residential environment that provides personal care services. The occupants are capable of responding to an emergency situation without physical assistance from staff. This group shall include, but not be limited to, the following:

• “Residential board and care facilities; Assisted living facilities; ·
• “Halfway houses;
• “Group homes;
• “Congregate care facilities; Social rehabilitation facilities; Alcohol and drug centers; Convalescent facilities.”

Zoning regulations limit halfway houses to seven to 12 residents.

“The building plans themselves, the floorplans, clearly demonstrated that this was not an outpatient clinic, this was not a detox facility. So, this was not a detox center in the sense that Bridgeport had a drug treatment center. This was for a halfway house, the same use that Pivot had,” Cody said. “…You cannot look at those plans and approve them and not know that it’s a halfway house.”

“Chill for a second,” Conroy said, pausing Cody and drawing laughter.

“I am not convinced that that’s the case because you’re going to do fire alarms, you’re going to do wheelchair lifts…. You can do these things and not have it in your mind that you’re going to do halfway house, but instead that you’re going to have multiple floors,” Conroy said.

Cody went on to recount emails Rilling sent to Zoning asking for updates “very late in game,” after being alerted by neighbors, after Firetree had spent $600,000 on renovating the house.

“I am enormously sympathetic to your point of view that your client has spent $600,000, but the board does not have the right to bring value judgement on whether life has been unfair,” Lyon said.

Cody asked if he was going to be cross examined or allowed to make a presentation, and Lyon withdrew the inquiry.

By mid-August 2015, minds had been made up, Cody said. Firetree was not going to get its certificate of occupancy, and architect Mark Demmerle was very surprised, he said, quoting Demmerle as saying, “In more than four decades of experience I do not recall any instance in which the zoning officer certified a permit, then refused certificate of occupancy based on approved use which the Zoning officer had already considered and approved.”

Pivot House had up to 20 residents at a time, Pivot Executive Director Anthony Kiniry said, describing people sleeping on sofas on occasion.

“A lot of the guys were incarcerated,” he said. “It would be hard to find a guy who hadn’t had some type of interaction with the legal system.”

More than 90 percent of Firetree’s clients have a history of drug and alcohol abuse, she said.

“The halfway house is critical to these people to have a supportive environment to be successful in the community,” she said.

Conroy asked her if any part of Firetree is for-profit.

“Not Firetree,” she said, drawing snarky laughter, she said.

Firetree is seen by some as having several associated for-profit companies, which funnel money to the Ertel family.

“We, in good faith, felt every step of the way that we were meeting what was needed by the city of Norwalk,” Ertel said. “We have now invested over $2 million into this facility. Currently, I can’t even get into the facility to remove computers to move them into a facility that we are building in Indiana, Penn., because we are not allowed to step onto our property.”

Firetree has lost $500,000 in revenue because Norwalk would not allow it to open its facility, she said. Legal fees over the last nine months add up to $150,000-200,000, she said.

Residents to the halfway house can come from any federal institution but must have a connection to the community, she said, responding to questions from Beggan.

The Bureau of Prisons’ Request for Proposals was for Fairfield County and, “Norwalk was a named town so that means they have a preponderance of residents that would come to this town,” she said.

The prisoners would be released to Fairfield County anyway, but without the halfway house they have no support, she said.

Cody went on to say that there is some confusion: the issue is the use of the land, not the user.

“I see the relevance in what they were and what they are,” Conroy said.

“Firetree is requesting approval of either the appeal or the special exception as a reasonable accommodation under the federal Fair Housing Act amendments and the Americans with Disabilities Act,” Cody said, going on to issue the threat of compensatory and punitive damages.

“The accommodation issue is something that we have to inquire of our counsel,” Conroy said.

“Staff was not aware that prisoners would be involved in this until complaints from the neighbors,” Rochefort said.

“Their name was somewhere on application form but at that point it could have been a contractor. I was not familiar with that name, Firetree. It had not come up in any other correspondence,” she said.

As for the code on the building permit application, which specified that it was a halfway house for more than 16 people, Rochefort’s testimony developed a pattern: that was a building permit, not a Zoning permit.

“When a Zoning approval leaves our office, it gets taken down to the building department, we don’t see it again until the final CO, at which time we go out and do our inspections,” she said.

The letters to Rilling, Kulhawik and Hempstead?

“Nothing was presented to the Zoning office,” Rochefort said. “We had no communication with any of those three people nor do they issue zoning permits. They wouldn’t know if a use was permitted or not permitted.”

Cody began asking her questions, in cross examination style.

“Do you agree when the building permit came in, the property was owned by Firetree?” he asked.

“I have no way of knowing that,” Rochefort said. “I don’t go to the building department. When they leave the Zoning office, they leave with Zoning approval and a stamped set of plans. They have one year to get a building permit.”

After nearly 2.5 hours, the public got a chance to weigh in. Conroy asked if anyone wanted to speak in favor of the application; no one did.

Just because Firetree is a federally recognized non-profit agency, it doesn’t mean that someone isn’t raking in the cash, Rudolph Weiss said.

CEOs make millions, and there’s a “big difference between a ministry and a corporation that operates as 501c3 but has private owners at the helm,” he said.

“It seems to me that Firetree and its lawyers tried to come in and sneak through this application,” Weiss said. “It would be easier to ask forgiveness than ask for permission. Just because they spent millions of dollars doing this, they should not be rewarded for their deception.”

Klaus Schmitt, an architect, said the Zoning regulations are clear about the continuation of a pre-existing use.

Firetree changed the garage into a different structure and enclosed the porch, with tiny windows, giving the place an institutional look out of character with the neighborhood, he said.

“To approve the appeal or even approve the request for a new special permit is a flagrant disregard of Zoning regulations as they are written,” Schmitt said. “For the attorney to threaten us with punitive damages as well as pulling the ADA card, that this is somehow discriminatory against people with disabilities, is absurd.”

Pivot was run by former addicts, not professionals, Bob Weiner said, going on to add that the operation was Christ-centered, and people weren’t coming from incarceration but as an alternative to incarceration.

If you look at Firetree’s appeal, it doesn’t mention housing prisoners, felons or parolees, but just talks about disabled people, he said.

“They are trying to cover up the fundamental nature of their use,” he said.

“This whole idea that a philanthropic applicant gets to use property any way they want to is ridiculous,” said Urban Mulvehill, a former ZBA chairman, adding that Pivot rescued people from the prison system, but Firetree would bring hardened criminals to the neighborhood.

“It is almost laughable to say that a halfway house from prison is the same as drug rehab facility,” Mulvehill said. “… They really didn’t want to alert anybody what they were doing so they tried to sneak it through.”