Opinion
LNDCV136037949 LNDCV156057942S LNDCV156062010S LNDCV156062012S
03-14-2018
TOWN OF ROCKY HILL et al. v. SECURECARE REALTY, LLC et al. SecureCare Realty, LLC v. Zoning Board of Appeals of the Town of Rocky Hill; SecureCare Options, LLC v. Zoning Board of Appeals of the Town of Rocky Hill
UNPUBLISHED OPINION
Berger, J.T.R.
I
On January 21, 2015, the plaintiffs, the town of Rocky Hill, and Kimberley Ricci, the assistant zoning officer of the town of Rocky Hill, commenced the second of two actions, Rocky Hill v. SecureCare Realty, LLC, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-15-6057942-S (SecureCare II ), seeking declaratory and injunctive relief against the defendants, SecureCare Realty, LLC (SecureCare Realty), and SecureCare Options, LLC (SecureCare Options). The plaintiffs assert that the defendants operate a " prison/penitentiary," a " nursing home" or " an assisted living facility" known as 60 West in a residential zone (R-20) in violation of two provisions of the zoning regulations of Rocky Hill (regulations).
SecureCare Options was not named as a defendant originally, but moved to intervene on February 9, 2015. The court, Wahla, J., granted the motion on February 26, 2015. SecureCare Options operates the facility known as 60 West and leases the property from SecureCare Realty.
The facility was established under General Statutes § 17b-372a, which is entitled " Nursing home for persons transitioning from correctional facilities or receiving services from Department of Mental Health and Addiction Services." The statute provides: " Notwithstanding any provision of the general statutes, the Commissioners of Social Services, Correction and Mental Health and Addiction Services may establish or contract for the establishment of a chronic or convalescent nursing home on state-owned or private property to care for individuals who (1) require the level of care provided in a nursing home, and (2) are transitioning from a correctional facility in the state, or (3) receive services from the Department of Mental Health and Addiction Services. A nursing home developed under this section is not required to comply with the provisions of sections 17b-352 to 17b-354, inclusive." General Statutes § 17b-372a.
Specifically, the plaintiffs allege that the defendants have violated § § 3.1 and 3.2 which provide as follows:
The first action between the parties, Rocky Hill v. SecureCare Realty, LLC, Superior Court, land use litigation docket, Docket No. LND CV-13-6037949-S (Securecare I ), was dismissed on April 23, 2013 , on the grounds of lack of subject matter jurisdiction based on sovereign immunity. On January 6, 2015, the Supreme Court reversed and remanded the case for a determination of whether the facility complied with the zoning regulations. Rocky Hill v. SecureCare Realty, LLC, 315 Conn. 265, 285, 105 A.3d 857 (2015). The defendants filed an answer, special defense and counterclaim on January 21, 2015.
An entity, iCare Management, LLC, related to the defendants is also a defendant in Rocky Hill v. SecureCare Realty, LLC, Superior Court, land use litigation docket, Docket No. LND CV-13-6037949-S (SecureCare I ).
The defendants moved to dismiss SecureCare II on February 9, 2015, based upon the prior pending action doctrine because of SecureCare I . On March 12, 2015, the court, Shortall, J.T.R., denied the motion, consolidated the two cases and transferred them to this court. The plaintiffs withdrew their complaint in SecureCare I on March 17, 2015. The parties agree that all issues contained in the first case are subsumed in the second matter.
In addition, the defendants have filed two appeals of decisions by the zoning board of appeals of the town of Rocky Hill (board). SecureCare Realty, LLC v. Zoning Board of Appeals, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-15-6062010-S; SecureCare Options, LLC v. Zoning Board of Appeals, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-15-6062012-S. While SecureCare I was pending before the Supreme Court, Ricci issued two " Notice of violation, Cease and Desist" orders on May 29, 2013- one against SecureCare Realty and the other against SecureCare Options. The defendants responded by writing to Ricci on June 27, 2013, indicating that the letters were in violation of the trial court’s orders in SecureCare I . On January 23, 2015- seventeen days after the Supreme Court’s decision in SecureCare I and two days after SecureCare II was filed- the defendants appealed Ricci’s orders to the board. On May 19, 2015, the board held a public hearing on the appeals and dismissed the appeals on July 15, 2015, indicating that it had no jurisdiction. The defendants commenced the two land use appeals on August 12, 2015. These cases have also been consolidated with SecureCare I and II and the parties agree that the substantive issues of the two administrative appeals will be controlled by this decision.
It is noted that Ricci’s orders are part of the allegations in the complaint in SecureCare II Complaint (Cp.), ¶¶ 7, 10. Nevertheless, the court notes that the efficacy of Ricci’s orders was questionable given the pending litigation. In the court’s memorandum of decision on the motion to dismiss, Judge Robaina found that the town’s zoning authority was preempted by § 17b-372a and that finding was not stayed. See Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 657, 646 A.2d 133 (1994) (" practical considerations lead us to conclude that in the case of both prohibitory and mandatory injunctions, the enjoined party ought to be required to request the trial court to rule on a stay pending appeal, and that absent such a request, the injunction ought to be considered in effect" ). Perhaps Ricci believed in a belt and suspenders approach in issuing the cease and desist orders, but her orders could have no ultimate legal effect in light of the court’s decision. Even if the defendants had filed their appeals within fifteen days and the board had rejected the appeals, Ricci’s orders would be unenforceable because of the trial court’s decision. See Carnemolla v. Walsh, 75 Conn.App. 319, 326-27, 815 A.2d 1251 (" Our Supreme Court has stated that res judicata may apply despite the fact that the judgment on which it is based has been appealed ... The fact that a prior judicial determination may be flawed ... is ordinarily insufficient, in and of itself, to overcome a claim that otherwise applicable principles of res judicata preclude it from being collaterally attacked." [Citations omitted; internal quotation marks omitted.] ), cert. denied, 263 Conn. 913, 821 A.2d 768 (2003).
On August 29, 2017, the parties filed a short stipulation of facts in SecureCare I . Evidence was heard at a trial conducted on August 29, 2017, through August 31, 2017. On September 1, 2017, the parties filed a stipulation adding seven defendants’ exhibits. The defendants filed an answer and special defense and the plaintiffs filed a reply to the special defense on November 13, 2017. The parties filed memoranda of law on November 15, 2017, and November 20, 2017. On November 20, 2017, the court heard closing arguments.
Exhibits 511 through 516 may be found at pleadings ##137.00-142.00.
II
Use of the property as a " convalescent home and hospital" was approved by the planning and zoning commission of the town of Rocky Hill on April 12, 1965. Stipulation of August 29, 2017 (Stip.), ¶ 5; Exhibit (Exh.) 3, p. 4. It was continuously used as a licensed chronic and convalescent nursing home (CCNH) from 1967, to August 24, 2011, when the facility was closed and the license became inactive. Exh. 508. The Connecticut department of public health issued the defendants a new CCNH license for its facility, 60 West, on or around May 2, 2013. Exh, 508, ¶ 17. The license was the same type of license that was in effect for the property continuously from 1967 until 2011, but allowed for 95 beds instead of 120. Ex. 508, ¶¶ 16-18.
In the defendants’ memorandum of law in support of its motion for summary judgment, they asserted that while SecureCare I was on appeal " 60 West received its ... nursing home license and began operating. Subsequent to receiving that license, 60 West received a license and certification from [Centers for Medicare & Medicaid Services (CMS) ] to participate as a ‘skilled nursing facility’ in the Medicare program and therefore also participate as a ‘nursing facility’ in the Medicaid program. [DeRing Aff. at ¶ 5, Ex. 3.]" The license has been renewed twice with a current expiration date of March 31, 2019. Ex. 508, ¶ 17.
The defendants argue that the licensed operation is a nursing home and a legal nonconforming use. The plaintiffs assert that the use is not a nursing home or, if it is considered to be a nursing home, the use has been expanded. Hence, pursuant to the agreement of the parties, the court will analyze these cases focusing upon the use and any expansion or intensification of that use.
There seems to be no disagreement that if the use is determined to be a nursing home that it is a nonconforming use that has not been abandoned. Indeed, it would be difficult to argue otherwise. In a letter dated November 9, 2012, Ricci stated that " [t]he use of the property as a convalescent home is a legal non-conforming use and will be allowed to continue as such." Exh. 500. Additionally, Ricci responded to an email query on August 31, 2012, from SecureCare’s counsel concerning abandonment. She answered, " Regarding the ‘intent to abandon’ the legal non-conforming use, I am in agreement with you and your reasoning which indicates that there was no intentional abandonment of the use. I state this with respect to zoning only, not building or fire safety/building codes." Exh. 510.
On page two of the plaintiffs’ post-trial brief, they state, " The parties have agreed that the Town will not claim that the pre-existing nursing home use was abandoned and in return the Defendants are withdrawing their municipal estoppel claim. Accordingly, the original action filed by the Town in 2013, should be totally withdrawn." The counterclaim in SecureCare I has not been withdrawn.
III
" General Statutes § 8-2(a), as amended by Public Acts 2017, No. 17-39, § 1, provides in relevant part that zoning regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use. Such regulations shall not terminate or deem abandoned a nonconforming use, building or structure unless the property owner of such use, building or structure voluntarily discontinues such use, building or structure and such discontinuance is accompanied by an intent to not reestablish such use, building or structure. The demolition or deconstruction of a nonconforming use, building or structure shall not by itself be evidence of such property owner’s intent to not reestablish such use, building or structure.’ A nonconforming use has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted ... A [nonconforming] use is merely an existing use, the continuance of which is authorized by the zoning regulations ... Stated another way, it is a use ... prohibited by the zoning regulations but ... permitted because of its existence at the time that the regulations [were] adopted ... [T]he rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the [relevant] zoning regulations ... For a use to be considered nonconforming ... that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted ... The party claiming the benefit of a nonconforming use bears the burden of proving that the nonconforming use is valid." (Citations omitted; internal quotation marks omitted.) Lane v. Cashman, 179 Conn.App. 394, 437-39 (January 30, 2018).
Mirroring General Statutes § 8-2(a), § 7.1.1 of the regulations provides that " [a]ny nonconforming use, building or structure existing as of the effective date of the adoption of these Regulations or any amendments hereof shall be permitted to continue, notwithstanding any other provisions of these Regulations or any amendments hereof." Exh. 42, p. 76.
IV
A
As a threshold matter, it was agreed by the parties during a status conference with the court on August 4, 2017, that the first issue is whether 60 West is a nursing home. Section 1.4.1 of the regulations provides that " [a]ny use of land, buildings, or structures not clearly permitted by these Regulations in the various zoning districts is prohibited. Activities not clearly permitted in these Regulations are prohibited." Exh. 42, p. 10. In light of this language, the regulations in the present case are permissive. See, e.g., Park Regional Corp. v. Town Plan & Zoning Commission, 144 Conn. 677, 682, 136 A.2d 785 (1957) (" entire scheme of the Windsor zoning regulations is permissive in contrast to the prohibiting type of zoning ordinance which. allows all uses, except those expressly prohibited" ).
The plaintiffs argue that the defendants’ use is either a " prison/penitentiary," a " nursing home," or " an assisted living facility," but the crux of the plaintiffs’ argument is that the defendants are operating a prison and not a nursing home. The current zoning regulations do not provide a definition for nursing home or prison/penitentiary.
Section 2.2 of the current regulations define " assisted living facility" as " [a] managed residential development that is restricted, to the extent allowed by State and Federal law, to persons who are 55 or more years of age or disabled, and provides residents three meals per day, personal care services, transportation, housekeeping services, and other assistance with activities of daily living, so they may maintain a maximum level of independence." Exh. 42, p. 14. To the extent that the plaintiffs are making an argument that the defendants are operating an assisted living facility instead of a nursing home, the United States Department of Health and Human Services, National Institute on Aging, at https://www.nia.nih.gov/health/residential-facilities-assisted-living-and-nursing-homes, distinguishes the terms as follows: " Assisted living is for people who need help with daily care, but not as much help as a nursing home provides. Assisted living facilities range in size from as few as 25 residents to 120 or more. Typically, a few ‘levels of care’ are offered, with residents paying more for higher levels of care.
At the time of the initial approval of the use, § 1.4 of the regulations then in effect contained the following definition: " NURSING HOME OR CONVALESCENT HOME. A building in which rooms, meals and care are provided for compensation to two or more ill or aging persons not members of the family principally occupying such building." Exh. 43, p. 7.
" When definitions are not provided in the zoning regulations, courts ‘look to the common understanding expressed in the law and in dictionaries.’ " Kobyluck Bros., LLC v. Planning & Zoning Commission, 167 Conn.App. 383, 391, 142 A.3d 1236, cert. denied, 323 Conn. 935, 151 A.3d 383 (2016). " As is clear, in a zoning case, construing ambiguous zoning regulations favors the landowner and not the government." Id., 400. " [I]n the absence of controlling definitions provided by the zoning regulations ... we may consult definitions from both Connecticut statutes and other state regulations for guidance. " (Emphasis in original.) Id.
In Webster’s Third New International Dictionary, " nursing home" is defined as " a private home or other place where maintenance and personal or nursing care are provided for three or more persons who are unable to care for themselves properly." " Prison" is defined as " an institution for the imprisonment of persons convicted of major crimes or felonies."
Connecticut statutes and regulations concerning the department of public health as well as federal statutes provide certain definitions. General Statutes § 19a-490(o) provides: " ‘Nursing home’ or ‘nursing home facility’ means (1) any chronic and convalescent nursing home or any rest home with nursing supervision that provides nursing supervision under a medical director twenty-four hours per day, or (2) any chronic and convalescent nursing home that provides skilled nursing care under medical supervision and direction to carry out nonsurgical treatment and dietary procedures for chronic diseases, convalescent stages, acute diseases or injuries." General Statutes § 19a-521 adopts this definition for " nursing home facility." Additionally, General Statutes § 19a-550 concerns the patients’ bill of rights and refers to the definition in § 19a-521 and, thus, the definition in § 19a-490. Moreover, § 19-13-D8t(a)(7) of the Regulations of Connecticut State Agencies concerning chronic and convalescent nursing homes and rest homes with nursing supervision defines " facility" as " a chronic and convalescent nursing home and/or a rest home with nursing supervision."
Further, 42 U.S.C.A. § 1395i-3(a) defines " skilled nursing facility" as " an institution (or a distinct part of an institution) which
(1) is primarily engaged in providing to residents-
(A) skilled nursing care and related services for residents who require medical or nursing care, or
(B) rehabilitation services for the rehabilitation of injured, disabled, or sick persons,
and is not primarily for the care and treatment of mental diseases;
(2) has in effect a transfer agreement (meeting the requirements of section 1395x(1) of this title) with one or more hospitals having agreements in effect under section 1395cc of this title; and
(3) meets the requirements for a skilled nursing facility described in subsections (b), (c), and (d) of this section.
It is not contested that the defendants’ facility is required to be licensed under state and federal programs and that SecureCare Options has a CCNH license under § 19a-493. Exhs. 501-03; Stip., ¶ 4. It is also undisputed that 60 West was found to be in compliance with federal requirements for nursing homes participating in Medicare and Medicaid programs; Exh. 504; and approved as a " Skilled Nursing Facility under the Health Insurance for the Aged and Disabled Program (Title XVIII of the Social Security Act)." Exh. 505; Stip., ¶ 9. Indeed, 60 West has the same license as all of its predecessors back to 1967. Exh. 508, ¶ 18; Stip., ¶ 6. Even the tax assessor labels the operation a nursing home. Exh. 506. Thus, by all accounts, the 60 West appears to be a nursing home. As such, the use is legally nonconforming as it was lawful and existed before the regulations or amendments thereto were enacted. See Lane v. Cashman, supra, 179 Conn.App. 438-39.
Additionally, Ricci stated in a November 9, 2012 email that " [t]he use of the property as a convalescent home is a legal non-conforming use and will be allowed to continue as such." (Emphasis added.) Exh. 500.
Rocky Hill’s regulations existed sometime before 1963. Exh. 1. The nursing home use was approved in 1965 under § 3.2 of the regulations that allowed " [a]ny non-residential and non-industrial use" with the approval of the planning and zoning commission. Exh. 4, p. 3; Exh. 43, p. 14.
B
The plaintiffs argue, however, that the defendants’ use no longer qualifies as a nonconforming use as it has illegally expanded. The defendants respond that the current use must be considered to be a nursing home because it is licensed and certified as such by the appropriate state and federal agencies, that 60 West operates as a nursing home and that the plaintiffs have not proven that the use has expanded. " Zoning regulations in general seek the elimination of nonconforming uses, not their creation or enlargement ... [T]he accepted policy of zoning ... is to prevent the extension of nonconforming uses ... and that it is the indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate ... Nevertheless, the rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn.App. 748, 760-61, 57 A.3d 810 (2012).
While the defendants bear the burden of proving the nonconforming use; Lane v. Cashman, supra, 179 Conn.App. 439; the plaintiffs bear the burden of establishing that the defendants’ activities are an illegal extension of the nonconforming use. Cummings v. Tripp, 204 Conn. 67, 95, 527 A.2d 230 (1987). " [T]he legality of an extension of a nonconforming use is essentially a question of fact." (Internal quotation marks omitted.) Id. " [A] mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use ... There must be a change in the character of the existing use in order to bring it within the prohibition of the zoning ordinance." (Citations omitted; internal quotation marks omitted.) Zachs v. Zoning Board of Appeals, 218 Conn. 324, 331, 589 A.2d 351 (1991). " In deciding whether the current activity is within the scope of a nonconforming use consideration should be given to three factors: (1) the extent to which the current use reflects the nature and purpose of the original use; (2) any differences in the character, nature and kind of use involved; and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property." Id., 332. " That a corporation interested in the development of real property is the owner of the [property] involved in this case must not cloud this inquiry because [z]oning is concerned with the use of property and not primarily with its ownership.’ Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 284-85, 545 A.2d 530 (1988).
In the present case, the use of the property as a nursing home goes back to the 1960s and was approved under the regulations in effect at that time. Stip., ¶¶ 5-6. The plaintiffs argue that the present contract to operate a nursing home for individuals through the department of correction is a change of the use. In Ricci’s cease and desist orders issued on May 29, 2013, Ricci asserted that the defendants’ use was " a prison/penitentiary, nursing home and/or secure assisted living facility." Exhs. 18-19. She testified that she issued her orders because the residents were under the auspices of the Connecticut department of correction, their liberty was restricted and 60 West was similar to a halfway house in that the residents would transition from that facility to the community. See also Exh. 509. She also averred, however, that she has never actually been to the building since it has been owned by the defendants; Exh, 509; nor has she ever asked permission to observe the building’s operations. Thus, her contention that it is " commonly known" that 60 West was a prison because the residents are under the control of the department of correction and the department of mental health and addiction services; Exh. 509; is questionable.
The orders further stated, " Prison/penitentiary and nursing home are not allowable uses. Furthermore, to the extent that this may be considered an assisted living facility, said use requires the issuance of a [s]pecial [p]ermit." Exhs. 18-19.
The current regulations do not define secure assisted living facility nor is this an argument that the plaintiffs are making.
As discussed previously, 60 West is required to comply with certain state statutory and federal requirements under its nursing home license. To receive federal medicare and medicaid payments, the defendants assert that they must provide their patients with certain rights. The federal regulations for " Requirements for Long-Term Care Facilities," appear in 42 C.F.R. § 483.1. Indeed, 42 C.F.R. § 483.10(a), entitled " Resident Rights," provides that " the resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility, including those specified in this section." Among other things, residents’ rights include the following: " [t]he right to participate in the development and implementation of his or her person-centered plan of care" ; 42 C.F.R. § 483.10(c)(2); " [t]he right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident’s medical symptoms" ; 42 C.F.R. § 483.10(e)(1); " [t]he right to retain and use personal possessions, including furnishings, and clothing, as space permits, unless to do so would infringe upon the rights or health and safety of other residents" ; 42 C.F.R. § 483.10(e)(2); " [t]he right to share a room with his or her spouse when married residents live in the same facility and both spouses consent to the arrangement" ; 42 C.F.R. § 483.10(e)(4); " [t]he right to share a room with his or her roommate of choice when practicable, when both residents live in the same facility and both residents consent to the arrangement" ; 42 C.F.R. § 483.10(e)(5); " [the] right to choose activities, schedules (including sleeping and waking times), health care and providers of health care services consistent with his or her interests, assessments, plan of care and other applicable provisions of this part" ; 42 C.F.R. § 483.10(f)(1); " [t]he right to make choices about aspects of his or her life in the facility that are significant to the resident" ; 42 C.F.R. § 483.10(f)(2); " [the] right to interact with members of the community and participate in community activities both inside and outside the facility" ; 42 C.F.R. § 483.10(f)(3); and " [the] right to receive visitors of his or her choosing at the time of his or her choosing, subject to the resident’s right to deny visitation when applicable, and in a manner that does not impose on the rights of another resident." 42 C.F.R. § 483.10(f)(4). Those regulations also dictate discharge and transfer activities. 42 C.F.R. § 483.15(c)(1)(I); 42 C.F.R. § 431.200.
The defendants argue that 60 West is licensed by the state and the federal government to operate a nursing home. If the use were otherwise, it would be required to obtain different permits, but none was required. See Salerni v. Scheuy, 140 Conn. 566, 571, 102 A.2d 528 (1954) (" [t]he difference between the sale of beer only in a restaurant and the sale of all liquors therein is so great that our law requires a different permit from the liquor control commission for each of the two kinds of business" ); cf. Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 717-18, 519 A.2d 49 (1986) (concluding that proposal for unlimited flights would require permit and be change of character of heliport). Other than Ricci’s unsupported conjecture, there was no testimony that 60 West’s residents were not subject to the same federal and state regulations imposing conditions on nursing homes and their residents.
Additionally, Rianna Gingras, the parole manager of the department of correction, testified that 60 West’s residents that were placed by the department of correction were not in custody, but rather under community supervision as all parolees and placed at 60 West only because of medical need. She indicated that, unlike a halfway house which was required to take a parolee, 60 West had the ability to reject such placement. She also noted that a parolee would be free to leave if medically cleared.
Michele Clemens, the director of nursing at 60 West with a twenty-year background in nursing home care, testified that 60 West was organized and provided care like any other nursing home. It had patients with medical problems similar to those in any other nursing home and the employees were not involved with the enforcement of parole conditions.
Leah Taglucop, the current nurse supervisor of the 7 a.m. to 3 p.m. shift who had worked at the predecessor nursing home, testified that the prior operation was busier, had more beds, and more dementia patients. Nevertheless, the nursing care provided was the same as before and the facility was safer now with more employees to provide care to the patients. She, like Clemens, emphasized that her job was to provide care no matter what the background of the patients.
The plaintiffs presented the state’s request for proposals and the defendants’ response; Exh. 10; as evidence that the 60 West operation is really a department of correction facility for " individuals [who] may be transitioning from a correctional facility, have criminal justice involvement and/or be transitioning from a higher level of care provided by the Department of Mental Health and Addiction Services." Exh. 9, p. 1. The plaintiffs also introduced page thirty-one from the 2014 Department of Correction’s annual report which stated, " The Mental Health Unit provided specialized supervision and support to offenders on parole and transitional supervision who either have a current diagnosis of a significant mental health disorder or who have been voted to medical or compassionate parole. These offenders are released to the community with a detailed plan for both treatment and supervision. This unit also continued to provide supervision for all offender-patients residing at 60 West, the highly-skilled nursing home for Department of Correction offender-patients and Department of Mental Health and Addiction Services patients requiring long-term care. When being considered for this placement, offenders are assessed medically and behaviorally and then presented to a board of psychiatrists to determine any risk factors. The goal of this assessment is to confirm that a person is so medically compromised that he or she no longer poses a risk to public safety. The nursing home is the first of its type in the country." Exh. 24.
Ironically, the plaintiffs’ argument in opposition to the motion to dismiss in Securecare I was that 60 West was not a department of correction operation while the defendants asserted that 60 West was an arm of the state. Rocky Hill v. SecureCare Realty, LLC, supra, 315 Conn. 276.
The plaintiffs also maintain that the commissioner release program under General Statutes § 18-100i, providing for the referral to 60 West with the possibility of return to prison, was more evidence of the Department of Correction’s control. Gingras testified that those referred to 60 West were so medically impaired that a return to prison has never happened. She also averred that parole officers are at the facility on a regular basis and that her office provided information to the Rocky Hill police department about certain patients.
Section 18-100i provides:
In evidence, and referred to by the town repeatedly, are the select pages from the Connecticut sex offender registry showing twelve offenders currently residing at 60 West. Exhs. 29-40. In addition to those living at 60 West, the court received testimony that currently five other individuals on the sex offender registry currently live in Rocky Hill and do not require such medical care.
Clearly, the plaintiffs are concerned about the concentration of individuals with criminal records. Two people with homes abutting the facility testified concerning their fears of such individuals and the impact of the fear on their families’ lives. Additionally, Lieutenant Ryan Klett, patrol commander of the Rocky Hill police department, testified that there were currently twelve sex offenders residing at 60 West.
Justice Berdon’s dissenting comments concerning NIMBY in an admittedly different situation are worth noting. " If ... the plaintiff is pleading ‘NIMBY’- that is, not in my backyard- as a basis of its claim for an injunction, thereby attempting to use the power of the judiciary to prevent the poor from having access to housing in East Hartford, justice necessitates a resolution of the underlying issues today. " (Emphasis in original.) Housing Authority v. Papandrea, 222 Conn. 414, 434, 610 A.2d 637 (1992) (Berdon, J., dissenting.)
Michael Landi, administrator of 60 West, averred, however, that the sex offenders admitted to 60 West do not present a danger to the public, particularly in light of their " physical and cognitive chronic conditions" that are " severe chronic and debilitating ... conditions." Three of the residents are in their 70s, one is in his 80s and one is in his 90s. All are medically ill. Exhs. 29-40.
In the present case, 60 West is simply caring for its patients in line with Connecticut’s legislative policy concerning parole, i.e., " there is a reasonable probability that such inmate will live and remain at liberty without violating the law and that ... such release is not incompatible with the welfare of society." General Statutes § 54-125a(a)(2)(A). The plaintiffs seeks to prevent 60 West from providing care to these medically needy persons by arguing that their presence in the nursing home turns it into a prison and, thus, is an impermissible expansion of the legal nonconforming use. This court rejects such an argument.
According to the testimony and evidence, the 60 West operation was similar to any other nursing home. While some patients may have had certain parole conditions, which were not known or enforced by nursing home employees, the testimony indicates that such a situation exists at all nursing homes. Moreover, not all of the patients were state referrals. Clemens testified that 60 West does not admit dangerous individuals and has rejected some referrals based on safety concerns. The fact that 60 West had a security guard, who acted as a visitor concierge, does not seem to be unusual either. It is also true that there was a secure unit- just as there had been in the prior operation- for patients with dementia and other medical conditions. None of this suggests that the nursing home operation became a prison.
While Ricci testified that " it’s not a nursing home, it’s a facility that serves as a transition facility between people that are either in custody or under control of Department of Corrections, Department of Mental Health and Addiction Services," she never visited the home. Neither she nor anyone from the town testified based on first-hand knowledge about the conditions at 60 West.
" In deciding whether the current activity is within the scope of a nonconforming use consideration should be given to three factors: (1) the extent to which the current use reflects the nature and purpose of the original use; (2) any difference in the character, nature and kind of use involved; and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property." Zachs v. Zoning Board of Appeals, supra, 218 Conn. 332. In the present case, the property was used in 1967 as a nursing home for purposes of caring for patients and it continues to be used for this purpose. Thus, the current use reflects the nature and purpose of the original use as a nursing home. See Helicopter Associates, Inc. v. Stamford, supra, 201 Conn. 714 (" [f]or a use to be ‘known in the neighborhood,’ not only must the premises have been adapted for a given purpose, but the premises must also have been employed within that purpose" ).
Further, there are no material differences in the character, nature, and kind of use involved. Notwithstanding this attempt to distinguish the former use from the present use, " [s]uch changes cannot reasonably be said to involve differences in the character of the nonconforming use rather than increases in the volume of business within the scope of the original use." Zachs v. Zoning Board of Appeals, supra, 218 Conn. 332-33. " [A] change in intensity ... is not an acceptable criterion for determining whether a proposed use is a change in use or a continuation of an existing use." DiBlasi v. Zoning Board of Appeals, 224 Conn. 823, 833, 624 A.2d 372 (1993). In fact, the evidence suggests that 60 West is a less intense use. There arc fewer beds now and Taglucop testified that there are fewer patients than before. Additionally, the testimony indicates that the nursing home operation is no different than that of the prior use or than that of another nursing home; the activities are the same. " More of the same ... cannot be the basis for a finding of an unlawful expansion of a prior existing nonconforming use. It is, instead, the essence of a lawful intensification of a prior existing nonconforming use." Hall v. Brazzale, 31 Conn.App. 342, 349, 624 A.2d 916, cert. denied, 227 Conn. 905, 632 A.2d 691 (1993).
Finally, the court finds DiBlasi v. Zoning Board of Appeals, supra, 224 Conn. 823, apposite. In DiBlasi, the court affirmed a trial court’s holding that the board erred in denying the plaintiff the right to continue a nonconforming use by substituting one business office use for another. Id., 833. The " difference" was that adult probation was the new tenant. Id., 825.
The trial court stated, " The C.L. & P. office use was an acceptable office use; the construction office use was an acceptable office use; the plumbing supply office use was an acceptable office use. However, the adult probation office use was considered as constituting a change in use. There is no basis for such a distinction in Connecticut law. There is no basis for such a distinction under the Litchfield zoning regulations. The zoning regulations do not provide a definition of ‘office use.’ " DiBlasi v. Litchfield Zoning Board of Appeals, Superior Court, judicial district of Litchfield, Docket No. 055783 (January 3, 1992, Pickett, J.) .
Litchfield’s planning and zoning commission had received a petition from neighboring residents which stated, " WE, THE UNDERSIGNED, ARE EXTREMELY CONCERNED ABOUT THE PROPOSED MOVE OF THE ADULT PROBATION OFFICE TO THE WHITE BIRCH CONSTRUCTION COMPANY BUILDING ON ROUTE 202 WHICH IS IN OUR RESIDENTIAL (R-80) NEIGHBORHOOD. ALSO THE PROXIMITY OF THIS PROPOSED OFFICE TO THE HIGH SCHOOL AND MIDDLE SCHOOL SHOULD BE A MAJOR CONCERN TO EVERYONE." (Internal quotation marks omitted.) Id., 828 n.7.
In the present case, the claimed difference in use is based upon a perceived change in the patient population notwithstanding the evidence was that all nursing home populations are changing. Indeed, Landi testified that over the last two decades nursing homes now care for younger patients with behavioral issues associated with mental illness, substance abuse and other conditions. Regardless, " the identity of a particular user of the land is ‘irrelevant to zoning.’ " Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996); see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992), p. 88 (" zoning power may only be used to regulate the ‘use, not the user’ of the land" ).
With no change in the activities regarding the use, the court need not address whether there is " any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property." See Zachs v. Zoning Board of Appeals, supra, 218 Conn. 332. Suffice it to say that any evidence presented on the negative effects on the neighborhood were based on speculation and the perceived change in the patient population not upon the activities on the property.
In summary, the court finds that the defendants have sustained their burden to prove the continuation of a nonconforming use; see Lane v. Cashman, supra, 179 Conn.App. 439; and that the plaintiffs have not met their burden to prove that the defendants’ activities are an illegal extension or change of the nonconforming use. See Cummings v. Tripp, supra, 204 Conn. 95.
Therefore, judgment enters for the defendants in SecureCare I and II and the two land use appeals are moot.
3.1 PURPOSES
3.1.1 R-40: This district is composed of certain lands and structures in the Town having a low-density single-family residential character. A principal objective is to create a living environment of high standards for single-family dwellings, and to make it possible to efficiently program, install and maintain public facilities and services in terms of need resulting from a defined intensity of land use.
3.1.2. R-20: This district is intended to permit a limited increase in density while maintaining an environment of high standards and to make it possible to program, install, and maintain public facilities in terms of need resulting from a defined intensity of land use.
3.2 PRINCIPAL USES
3.2.1. The following principal uses shall be permitted as a matter of right in all residential districts subject to the issuance of any necessary zoning and building permits:
A. single-family dwellings,
B. farms, orchards, raising of crops, raising of livestock, and
C. multi-family housing developments in existence as of February 1, 2006.
3.2.2. The following principal uses shall be permitted in all residential districts subject to Site Plan Approval in accordance with Section 8.2 and subject to the applicable standards of Sections 6 and 7:
A. public schools and public buildings,
B. cemeteries, and
C. accessory apartments in compliance with Section 6.7.
3.2.3. The following principal uses shall be permitted in all residential districts subject to approval of Special Permit and Site Plan Approval in accordance with Sections 8.2 and 8.3 and subject to the applicable standards of Sections 6 and 7 :
A. commercial greenhouses as part of an existing nursery operation,
B. churches, synagogues and places of worship,
C. community and municipal buildings for non-profit organizations,
D. public utilities,
E. public and private recreational facilities,
F. group day care homes,
G. conservation design subdivisions in the R-40 district only,
H. housing for the elderly and assisted living facilities,
I. active-adult housing, and
J. any other use similar to a use permitted by Special Permit in a residential district, as determined by the Commission. Exhibit (Exh.) 42, pp. 31-32.
The parties agree, however, that the two land use appeals are controlled by this decision. Thus, this court does not address the board’s determination that it had no jurisdiction to decide the appeals. Perhaps the board made its determination based upon the untimeliness of the appeals or maybe the board realized that it did not have jurisdiction due to the judicial proceeding.
" Assisted living residents usually live in their own apartments or rooms and share common areas. They have: access to many services, including up to three meals a day; assistance with personal care; help with medications, housekeeping and laundry; 24-hour supervision, security, and on-site staff; and social and recreational activities ... " Nursing homes, also called skilled nursing facilities, provide a wide range of health and personal care services. Their services focus on medical care more than most assisted living facilities. These services typically include nursing care, 24-hour supervision, three meals a day, and assistance with every day activities. Rehabilitation services, such as physical, occupation, and speech therapy, are also available. " Some people stay at a nursing home for a short time after being in the hospital. After they recover, they go home. However, most nursing home residents live there permanently because they have ongoing physical or mental conditions that require constant care and supervision." In the present case, the evidence presented clearly illustrated that 60 West provided care tending toward the higher level care of a nursing home. Regardless, any difference in character between a nursing home and an assisted living facility- or for that matter a secured assisted living facility- is not meaningful as the regulations do not differentiate these uses. See DiBlasi v. Zoning Board of Appeals, 224 Conn. 823, 833, 624 A.2d 372 (1993).
(a) The Commissioner of Correction, at the commissioner’s discretion, may release an inmate from the commissioner’s custody, except an inmate convicted of a capital felony under the provisions of section 53a-54b in effect prior to April 25, 2012, or murder with special circumstances under the provisions of section 53a-54b in effect on or after April 25, 2012, for placement in a licensed community-based nursing home under contract with the state for the purpose of providing palliative and end-of-life care to the inmate if the medical director of the Department of Correction determines that the inmate is suffering from a terminal condition, disease or syndrome, or is so debilitated or incapacitated by a terminal condition, disease or syndrome as to (1) require continuous palliative or end-of-life care, or (2) be physically incapable of presenting a danger to society.
(b) The Commissioner of Correction may require as a condition of release under subsection (a) of this section that the medical director conduct periodic medical review and diagnosis of the inmate during such release. An inmate released pursuant to subsection (a) of this section shall be returned to the custody of the Commissioner of Correction if the medical director determines that the inmate no longer meets the criteria for release under subsection (a) of this section.
(c) Any inmate released from the custody of the Commissioner of Correction pursuant to subsection (a) of this section shall be supervised in the community by the Department of Correction.
In the present case, this nursing home has several " difficult to place" patients; Exh. 9; who are on parole and living in the community as any other parolee or those medically referred from a prison. The placement of these patients has caused a NIMBY reaction. " NIMBY conflicts arise from projects that typically generate widely dispersed benefits while imposing concentrated costs, such as homeless shelters, prisons, airports, sports stadiums, and waste disposal sites. Despite the social desirability of such projects, they often provoke intense local resistance that harnesses the political process to block construction of the proposed facility." Kennedy v. Upper Milford Township Zoning Hearing Board, 575 Pa. 105, 125 n.27, 834 A.2d 1104 (2003), quoting B. Richman, " Mandating Negotiations To Solve The NIMBY Problem: A Creative Regulatory Response," 20 UCLA J. Envtl. L. & Pol’y 223, 223 (2001/2002). " A NIMBY attitude is often shaped by specific fears, including increased crime, poverty, and service and education costs, coupled with decreased property values and open space preservation." C. Scally, " The Nuances of NIMBY: Context and Perceptions of Affordable Rental Housing Development," 49 Urban Affairs Review 718, 720 (September 2013).