Published May 15. 2013 7:00PM Updated May 16. 2013 7:13PM
Waterford — After nearly five months of meetings, legal advice and independent research, members of the Zoning Board of Appeals on Wednesday denied an application to turn a vacant Rope Ferry Road nursing home into a sober living facility for 144 men.
The ruling on the application filed by the Stonington Institute came with a 5-0 vote, with member Joseph Fillippetti filling in as chairman. Chairman E. Peter Bendfelt was absent.
Members said they believed there was no hardship proved by the applicant and that the zoning board has no authority to create a use for the property that is not found in the town's zoning regulations.
Stonington Institute was seeking a use variance to the former nursing home property to allow the proposed sober living facility to operate in a residential zone.
The organization, also known as Stonington Behavioral Health Inc., has the option to file an appeal in federal court within 15 days. It could argue that by denying the proposed sober living facility, the zoning board violated two federal laws: the Fair Housing Act and the Americans with Disabilities Act.
Both federal laws allow individuals access to fair opportunities to live in supported housing environments in residential zones. The laws do not place a number on what constitutes a family or what constitutes a home.
"The applicants have existing properties within the community and surrounding communities that go along with our zoning regulations," member Catherine Newlin said. "They're of smaller scale, but with limitations that are permitted within our regulations. I don't see their hardship. I think it's more financial. There are other uses in R-40 that this building could be used for."
The property has sat vacant for two years, despite marketing efforts to sell it.
"The issues in this case have been difficult to decipher because there are really two applicants, the property owner and the business owner," member Joshua Friedman said. "The property owner is claiming a hardship, and I don't believe they've proven one. The business owner is asking us to change something that doesn't appear in the zoning regulations in the town of Waterford."
Finding another facility like the one proposed by Stonington Institute was a challenge for the zoning board, as there isn't a facility of its size and purpose in the country, Friedman said.
He said the ZBA doesn't have the "power to create a new zoning category."
Members of the zoning board have met twice in executive session with an additional lawyer to discuss the federal laws.
"The only concern is who's going to sue who," Bendfelt said. "There are members on the board that are afraid they can be individually sued, but we're ensured that the town has good enough insurance and that we won't be able to be sued individually, but I guess anything is possible."
Though he wasn't able to attend the meeting Wednesday evening, he said on Tuesday that he was leaning toward a "no" vote. He said the scale of the facility was "more like an institution or a boarding house" rather than a sober house.
"The federal law says we have to give reasonable consideration and the word 'reasonable' is always in there," Bendfelt said. "It (the law) doesn't say we have to approve anything. It just says we have to be reasonable, and I don't think 144 people is reasonable."