During an emotionally charged, at times contentious public hearing that saw a line of lawyers paint vastly different pictures of what’s required of the town, officials on Monday night said they would obtain yet another legal opinion prior to deciding whether a “sober house” may operate in a single-family home in northwestern New Canaan without obtaining a permit.
Those opposed to a sober house operating out of a West Road residence criticized the town’s finding that the for-profit facility needs no permit to do so, saying New Canaan should have a formal application process for the business and pooh-poohing legal advice that imposing such would trigger liability for discrimination. Those who have found that The Lighthouse may operate at 909 West Road without a permit point to federal laws that govern treatment of the disabled and fair housing practices.
During a public hearing on next-door neighbor Thom Harrow’s appeal of the town’s finding before the Zoning Board of Appeals, what emerged were competing legal interpretations of what would constitute a “reasonable accommodation” for the sober house on New Canaan’s part.
According to Town Attorney Ira Bloom, whose advice led to an assertion that The Lighthouse may operate its facility in the 8,000-square-foot home, New Canaan is required “to reasonably accommodate” the sober house within its own regulations.
“Anticipating six to eight people [in the sober house], should the town have to make a reasonable accommodation to a limit of three people in the house?” Bloom asked rhetorically during an unusually well-attended meeting of the ZBA, held at Town Hall. “And I think the answer under the case law is ‘Yes,’ is my opinion.”
Saying they supported the sober house in principle and admitted its good work, those opposed to its location as-of-right in a residential zone said the meeting’s turnout spoke to New Canaanites’ concerns about sober houses operating in their neighborhoods. At the same time, several of those in attendance also appeared to support The Lighthouse, and both sides addressed the ZBA during a public comment period (more on that below).
An attorney representing The Lighthouse said he agreed with Bloom’s interpretation of the law, and added that making a “reasonable accommodation” requires New Canaan to treat the sober house—a non-medical facility that is to serve men post-rehabilitation, mostly for alcohol addiction—just as it would other residences.
“The way this law works is this,” said the attorney, Robert Maslan of Darien-based Maslan Associates PC. “If a set of zoning regulations allows a single family to live in a house in a single-family zone, but the regulation has no upper limit on the number of family members who can live in that house, then the same zoning regulations cannot impose a limit on unrelated people when the unrelated people have a qualified disability or handicap, and that is what we are dealing with here. So the bottom line is: Sober houses have to be treated in exactly the same way as single-family residences. That is one part of the reasonable accommodation.”
He referred to a section of New Canaan’s Town Code that appears to anticipate a business at least similar to a sober house. It defines a ‘Rooming House’ this way: “Any building or portion thereof used or occupied by three or more boarders or roomers as defined in the New Canaan Zoning Regulations and shall include hotels, motels and lodging houses.”
Under Section 186-6 of the Town Code: “No owner shall lease or rent rooming house units unless he holds a rooming house permit issued by the Director of Health or the specific rooming house in which the rooming house units are located.”
Yet another attorney at the meeting—town resident James Hill of Turtle Back Road, who addressed the ZBA during a public comment period—spoke critically of Bloom, saying “the town needs to do a better job in terms of getting better research and getting a better legal opinion.”
“What I am hearing here is not consistent,” Hill said.
Saying that New Canaan is “not getting an unbiased view” from Bloom—an assertion that ZBA member Ben Bilus (also an attorney, retired) would reject—and that too much is at stake in terms of the neighbors’ property values, Hill defined a “reasonable accommodation” as what the town must do “in light of all the circumstances.”
“You do not have an obligation to accept this,” Hill said.
Harrow’s attorney, Joel Green of Bridgeport-based Bridgeport-based Green & Gross PC, said Hill was correct and laid out his own extensive arguments in favor of upholding the appeal.
Ultimately, the ZBA continued the hearing to its April 3 meeting and—as it has in handling appeals filed with the town in the past—decided to seek the advice of outside counsel.
Though ZBA members called for more time not only to hear from a different attorney but also for the sober house operator and concerned neighbors to communicate directly and perhaps land on an agreeable solution, representatives from each side appeared to be very much at odds.
For example, this exchange (and gasps from many of those in attendance) ensued when Maslan handed out sets of photos of the sober house property to ZBA members, Bloom, Town Attorney Steve Palmer and Green:
Harrow, the appellant: “May I have one?”
Maslan: “I don’t think I have enough.”
Harrow: “I filed the appeal. I think I ought to have one.”
Maslan: “Your lawyer has one.”
The exchange came toward the end of a ZBA meeting that ran nearly five hours.
It started with Green arguing that the town planner’s determination that the sober house is an “as-of-right” permitted use, is incorrect—a point that Bloom himself later conceded and said could be remedied by the ZBA by a simple wording change in ruling on Palmer’s decision.
More specifically, the appellant’s attorney argued that New Canaan has no process in place to render a decision on a use such as what The Lighthouse appears to be proposing.
Just what The Lighthouse intends to do also is unclear because, according to Green, there’s been a “lack of information” from the sober house operator.
“There seems to be a lack of transparency in the process that has caused a lot of concern,” Green said. “I don’t think anyone really understands fully what this is or how it is going to work, and that is what I want to get into.”
Green directed the ZBA to the New Canaan Zoning Regulations to make the points that even a single-family home use in a residential zone technically is not allowed “as-of-right” in the regs (see page 42 here).
“So you cannot establish a single family home without obtaining a zoning permit on a residential property,” he said. “Therefore, this use should have required a zoning permit. No application has been filed in this instance for a zoning permit.”
Pointing to a section of the regulations that outlines how to interpret them, Green described New Canan’s zoning as “prohibitive”: “Unless the zoning regulations say you can do it, you cannot do it.”
According to Green, The Lighthouse appears not to qualify under the state law that governs sober houses, because it fails to meet certain standards outlined therein—for example, the sober house in New Canaan avails itself of no state funding.
“So then the question becomes: How do we deal with a ‘reasonable accommodation’? ” Green said.
According to Green, there’s nothing in New Canaan’s own regulations that allows the town planner to determine what constitutes a reasonable accommodation of the sober house.
As such, the town must turn to the Code of Federal Regulations to make that determination, according to Green. Among other requirements, those regulations specify that there “has to be a finding that it’s necessary to have this facility,” Green said.
“There has to be a more formal process, a more formal review to ensure that the use can be proper and safe and healthy—is good for the town, user, neighborhood—and that simply did not happen here,” he said.
ZBA members asked Green whether the legal situation would change if The Lighthouse were required to demonstrate why they need six rather than eight people (no, the federal law outlines specific standards for reasonable accommodation, and doesn’t specify the number of inhabitants) and why a legal filing seeking a temporary injunction in state Superior Court was filed while the appeal with the town was pending (the question of a private nuisance is separate from any zoning compliance issue).
Palmer in responding to Green said “this was not an easy decision for me” and that he “relied heavy on the town attorney’s opinion on this.”
“It required a lot of thought and it required help from the town attorney in order to arrive at this decision. When I make a decision as a zoning enforcement officer, I have to think of two things – the regulations and then also other laws that may be applicable. Ira [Bloom] outlined them very specifically in his memos regarding this and I am faced with potentially making a decision that could affect neighbors but also could affect the town with exposure to discrimination.”
Palmer noted that while single-family dwellings require a permit to be constructed, they do not require a permit on occupancy.
“When someone sells home they do not have to come back to Planning & Zoning to get review or oversight, even in a rental situation,” Palmer said.
He also noted that at this point, there’s no compliance issue with respect to zoning because The Lighthouse currently has only three people on the property—two clients of the sober program and one overseer.
“The trigger has not happened yet,” Palmer said.
At least two members of the ZBA who are attorneys—Secretary Angelo Ziotas and alternate Luke Tashjian—were absent from the meeting.
Bloom in his comments reviewed much of the legal advice and case law that he had laid out in a memo received by the town last Thursday.
Saying he found Green’s arguments “extraordinary” in that they were “factually and on the law simply not accurate,” Bloom referred to what he called a “very well developed body of law.”
“There is an entire body of law,” he said. “We are not operating in a vacuum.”
He reviewed cases where the courts have found that municipalities may not require a sober house to notify lcoal officials prior to opening (laws currently contemplated by the Connecticut state legislature) or requiring sober houses to meet safety standards not imposed on regular residential homes are not allowed. In some cases, towns have had to pay out following civil lawsuits, Bloom said.
“We can debate it—debate it all night,” Bloom said. “That is the law.”
He added: “My job is to tell you the law. I am not giving you an opinion as to whether I like it or whether you should like it. This is the law, and we have to face it.”
Bloom added that Palmer has been in regular communication with the sober house’s operators as the two parties work on a set of mutually agreeable rules for the facility, and that information is available in a public file at P&Z.
Two owners of The Lighthouse, Trey Laird and Tony Kiniry, told the ZBA that they are eager to be transparent and communicative with New Canaan. Laird reviewed his own involvement in sober homes as one in recovery and described facilities operated by The Lighthouse as well-run, family-like settings and bridges to their own homes, where high-performing professional men gain senses of community, identity and camaraderie after leaving more intense inpatient rehab programs.
“We are committed to being great operators,” Kiniry said.
ZBA member John Mahoney asked Bloom for help in understanding what “reasonable accommodation” means and specifically where its boundaries are.
“Any place, any time?” Mahoney asked. “Next to a school? … Is it to a point where someone could knock on your door and say, ‘Your home is for rent and you have to rent it to me because I’m a sober house’? How far does ‘reasonable accommodation’ go?”
Bloom responded that the law is “fact-specific.”
“You cannot make a broad statement that says anything is acceptable at any time and any place, it has to be fact-specific, looking at all factors,” Bloom said. “A municipality has to make a ‘reasonable accommodation’—the town has to make certain exceptions to zoning laws, especially if it does not cause any great financial burden on town, or that it does not substantially interfere with the town’s comprehensive plan. But it is fact-specific.”
When Mahoney and other ZBA members asked more questions about “reasonable accommodation” in order to understand how far it went, Bloom said he could not address hypothetical situations.
“You have to reasonably accommodate the regulations that you have, that is how you have to look at it,” Bloom said.
When ZBA member Laura Edmonds pointed out that The Lighthouse is a for-profit business, Bloom responded that a sober house “is not considered a business” under the law.
“It is considered a residential use,” he said.
Bilus asked whether New Canaan—faced with what amounts to an application for “unrelated family members” to use a single-family residence— must make an allowance so that the town is “said to have accommodated these protected people”?
When Bloom responded yes, Bilus replied: “That sucks.”
Harrow said he’s been frustrated by a lack of transparency on the part of The Lighthouse and called the experience of navigating local regulations and a legal system vis-à-vis sober house operation as “some sort of adventure in Alice in Wonderland” in that New Canaan lacks a process for addressing a proposed sober house in a private home.
“I have no objection to any of good work they do—I believe in it, I really do—but I am offended that they came in essentially in dark of nigh, fully armed with lawyers, and fully armed with the knowledge of what their arguments would be after the act, and essentially just moved in,” Harrow said.
Scott Frisoli of Ponus Ridge said he knows many of the people involved in The Lighthouse as high-caliber, responsive and responsible individuals—“these are people I respect and admire”—and that he was supportive of the effort in New Canaan.
“I can see the concerns—it’s a complicated issue—but the people involved in this particular case are top-notch,” Frisoli said.
He added: “This is a unique case and something we should be proud of in the community.”