After telling municipal officials that a “sober house” on West Road may operate without a permit in a residential zone, the town attorney is advising the volunteer body that will hear an appeal of that decision to uphold it.
New Canaan must grant a “reasonable accommodation” under the federal Americans with Disabilities Act to the sober house “and cannot discriminate against handicapped or disabled persons,” town attorney Ira Bloom said in a letter filed Thursday with Planning & Zoning.
“Even when the sober house reaches capacity of six or perhaps eight from time to time, the ADA requires a reasonable accommodation that would allow for such occupancy,” Bloom said in the letter.
“[Town Planner] Mr. [Steve] Palmer has been working diligently with the proprietor of the sober house to craft a set of conditions for its ongoing operation, including provisions for inspections, reporting and supervision. His goal is to have such conditions become part of the official record—perhaps even part of the [Zoning Board of Appeals’] decision after the March 6 hearing. However, the recently filed lawsuit by Thom Harrow against the owner … the Lighthouse and others … has caused the discussions between Mr. Palmer and the proprietor of the sober house to cease for now.”
He referred to a legal filing last month by a direct neighbor of The Lighthouse sober living facility, seeking a temporary injunction to halt its operation.
The filing of the lawsuit in state Superior Court in Stamford came as the same neighbor appealed the town’s finding that the sober house is an allowed as-of-right use at a West Road home. The matter first had emerged as a concern among neighbors in January, at which time Palmer responded to inquiries from some neighbors that no special or health permit is required in order to operate a sober home at 909 West Road.
According to an email from a Lighthouse founder to the town, the sober house operator will be represented at the March 6 hearing by attorney Bob Maslan of Darien.
Bloom in his letter reviews federal and state laws governing sober houses. They include the federal Fair Housing Act and ADA, and a state law regarding community residences for groups of disabled people including those receiving addiction services that says, in part: “[N]o zoning regulation shall treat the following in a manner different from any single family residence: … any community residence that houses six or fewer persons receiving mental health or addiction services and necessary staff persons paid for or provided by the Department of Mental Health and Addiction Services and that has been issued a license by the Department of Public Health … if a license is required.”
In general, Bloom said, “the federal laws prohibit discrimination by public entities (including town governments) against handicapped or disabled persons.”
“The ‘protected persons’ include, as examples, individuals with physical or mental impairments and recovering substance abusers. The laws prohibit intentional discrimination, but, more importantly for our purposes, they also prohibit facially neutral policies which have discriminatory effect when actually applied—the ‘disparate impact’ theory. Such policies may have such an effect if they cause a significantly adverse or disproportionate impact on a particular group. The laws also require the public entity, or town government in our case, to make a ‘reasonable accommodation’ to assist the group. In plain language terms, local zoning regulations which impose restrictive terms on ‘group homes’ may not apply in a particular situation, since they are superseded by these other laws. Municipalities are required to make ‘reasonable accommodations’ in their various regulations and rules to provide qualified disabled individuals with equal housing opportunities.”
He also reviewed court cases that set precedent for the standards set forth in the applicable federal laws.
They include a 2001 New London case, according to a Bloom, where a halfway house operator sued the city, claiming that an attempt to close the facility for zoning reasons amounted to a violation of FHA. In largely granting an injunction to the operator, Bloom noted, the federal court said no evidence was submitted by the municipality ‘to show that allowing the homes to continue to operate in this same manner would be an undue financial or administrative burden on the city of New London.’
“Similarly, the city did not claim that allowing these properties to continue operating I precisely the same manner as in the past would require a ‘fundamental alteration’ of local zoning regulations.”
According to correspondence reviewed by NewCanaanite.com, Palmer in advance of the hearing urged the sober house’s operator to consider a number of proposed rules for the facility.
They include: Identification of person/operator responsible for oversight of the house, including name, address and contact information, available for inspection; Criminal history background check of house operator, employees, house officers and house owner; to avoid conflicts, no operator or employee will offer, solicit, pay or receive commissions, rebates, fees, etc. in cash or in kind, to induce referrals of patient, whether incoming or outgoing; all employees and operators will have had 18 to 24 months of sustained recovery; written reports to authorities of unusual incidents within 48 hours including death, overdose or suicide attempt of a resident in a recovery house, physical assault, sexual assault, outbreak of a contagious disease or food poisoning among residents, serious crime or a condition that results in closure of the recovery house for more than one day of operation; accept residents only after appropriate assessment and placement into treatment to address their substance use issues; accept residents only from licensed drug and alcohol treatment providers or other qualified referral source; adequate documentation of medical, drug and alcohol history, including substances most frequently abused, to permit adequate monitoring and proper care; and no clinical or therapeutic interventions without required licenses.
Monday’s hearing of the appeal before the ZBA is scheduled for 7 p.m. at Town Hall.