Norwalk officials gird for legal battle with Firetree

NORWALK, Conn. – Norwalk will defend the Zoning Board of Appeals’ decision not to allow Firetree Ltd. to open a federal prisoner halfway house on Quintard Avenue, Mayor Harry Rilling said Friday.

“The Zoning officer and the Zoning Board of Appeals twice denied them their request and I concur with what those rulings have said. I know that Firetree has filed a lawsuit. The city will defend the Zoning Board of Appeals decision with the view of maintaining the integrity of that neighborhood. This is a nonconforming use,” Rilling said.

The ZBA on Thursday turned down Firetree’s request for a special exception to the Zoning regulations to allow the federal Bureau of Prisons residential reentry center (RRC) in what had been the Pivot House at 17 Quintard. In so doing, ZBA members took in input from Human Relations & Fair Rent Department Director Adam Bovilsky about the factors he weighs when considering an American Disabilities Act (ADA) request, and debated the opinion of the Building Department regarding the amount of structural work done on the property as part of the renovations. Also new to ZBA was information from the Bureau of Prisons, as relayed by Assistant Corporation Counsel Brian McCann, about the role of the prisoners’ disabilities in the decisions made regarding their transition to normal life.

Disabilities are an important factor, as the lawsuit already filed by Firetree, an appeal of the previous ZBA decision not to overturn the denial of a Certificate of Occupancy for the facility, accuses Norwalk of discriminating against the disabled and failing to provide reasonable accommodations under the Fair Housing Act.

The appeal filed in the United States District Court District of Connecticut lists as plaintiffs “John and Jane Doe,” said to be disabled people who would have lived in the halfway house had it opened.

RRCs are “aware to some degree of the prisoner’s disability” during the process by which inmates qualify for the RRC transition to non-prison life, as a condensed medical portfolio is provided, McCann said Thursday, quoting from a conversation he and Bovilisky had with a BoP official.

“But outside of that, the major focus of the BoP is the rehab from the institutionalization of that prisoner,” McCann said. “They are not primarily concerned with placing a prisoner so that he or she can have the appropriate congregate living environment, they are concerned with coming up with a time period for placement into a RRC that is commensurate or appropriate for that person’s level of institutionalization. The amount of time that they feel that person needs to acclimate back to a normal life.”

The Bureau of Prisons does not consider drug and alcohol addiction a disability, McCann said. BoP is aware of a prisoner’s disabilities but “in large part that is not part of their factors in their decision making,” McCann said.

Firetree’s attorney, Thomas Cody, called Bovilisky’s testimony a “desperate last minute attempt;” Bovilsky, an attorney, acknowledged that he wasn’t fully aware of Firetree’s case but could speaking generally about the ADA.

The law was amended recently and in most cases an application is approached with the presumption that the claimed disability impacts a major life function, Bovilsky said.

However, “there must be a nexus established between the disability claimed and the accommodation requested,” he said, explaining that if you needed a wheelchair it would be reasonable to ask for a wheelchair ramp, but trying to get an exemption from taxes because of the disability would not be.

Other tests would be whether there would be a fundamental change in the nature of a program or service by granting the request or whether meeting the request would create an undue financial or administrative burden on the city, Bovilsky said.

An argument that the city faced an undue financial burden because of lessened property values probably wouldn’t fly, given that the change would be a drop in the bucket compared to the size of the city’s budget, but perhaps the fundamental change to the neighborhood that the halfway house would bring would be an issue, Bovilisky said.

“It’s fair to say then that everything you said tonight is not relevant to this application,” Cody said, pointing out that Bovilisky reviews public ADA applications, but only advices on private ones.

“This is a program of the Bureau of Prisons… I would argue that it may in fact be a government program,” Bovilsky replied.

“This isn’t a question of deciding whether a wheelchair ramp is needed,“ Cody said, speaking to the Board later. “The issue here is that Firetree has been denied its occupancy in total. The issue squarely lies with the ZBA.”

ZBA Chairman Andy Conroy said Norwalk Chief Building Official Bill Ireland and Rochefort had recently gone into the building with Firetree reps.

They had gone in to survey the work, Cody said.

“For practical purposes, Mr. Chairman, they cannot use the property,” Cody said, adding that Assistant Planning and Zoning Director Mike Wrinn had “chastised Firetree for even having anybody in the building.”

Rochefort and Ireland went into the facility to calculate what percentage of structural work that had been done as part of the alleged $600,000 renovation of the $470,000 house. Rochefort reported that the calculation was that not more than 25 percent of the assessed value had been for structural work, an important determination as more than that would disqualify Firetree from a special exception. But ZBA members questioned the calculation, highlighting another potential legal argument.

“I would contend that Bill Ireland has misinterpreted the life safety code,” Lee Levey said. “…I have a broader range of the interpretation of ‘structural.’”

Windows were replaced, including headers and jams, he said.
“The additional total I came up with was $62,000, which puts it way over the $90,000 (limit),” Levey said.

“I am going to go with what Bill Ireland said… he is the head building official,” Joe Beggan said.

“I don’t know if we can prove the 25 percent was exceeded. I think there is a suspicion,” Conroy said.

ZBA voted four to one to deny Firetree’s special exception. It’s widely believed that this will also be appealed.

Rilling responds to Firetree claim

High on Firetree’s list of evidence in its filing with the court is its claim that it alerted the city to the potential federal prisoner halfway house by sending Rilling, Police Chief Thomas Kulhawik and then-Council President Doug Hempstead a letter in 2014.

Rilling said Friday that by law he could not make any statements that would be seen as trying to influence the Zoning department and the Zoning Board of Appeals until the process had concluded. Now that the hearing is over, he explained that he sent Firetree’s 2014 letter to Corporation Counsel’s office.

“I get hundreds of letters and emails in any given week,” Rilling said, explaining that he glances at them and decides what should be done with them.

“The Corporation Counsel said he believes he even tried to call Firetree,” Rilling said. “It was his opinion that this is just a letter, they should be doing their due diligence. If they are looking to develop something in Norwalk they need to do their due diligence just like anybody else to put together plans, come in and have a pre-application meeting so that any problems can be addressed right the meeting.

Rilling said Firetree’s initial application came in as “Pivot House/Firetree, like it was a Pivot House application.”

“They didn’t know whether it was Pivot House and Firetree might be a developer or what,” Rilling said. “…It almost seems like they were trying to suggest there was a partnership with Pivot Ministries.”

Firetree did their work under an over the counter rehab permit but when Zoning staff “inspected the property they found that it was much more than just a rehab of the property,” Rilling said.

“They got a Zoning approval and a building permit to do improvements to the building, period,” Wrinn said Friday. “Then it turns out it was going to be a different operation. That’s what all of this what about. It was ‘brick and mortar,’ and that’s in the application.”
Brick and mortar means, “You are going to do improvements to the building, you are not changing the operation,” Wrinn said.

While he could not comment, “I felt very conformable that they would rule as they did but the ruling is theirs’,” Rilling said. “…I have reached out to the neighbors. I will be having a meeting with them to discuss our next steps.”