RETURN DATE: DECEMBER 18, 2012 DOCKET NO. HARTFORD DISPENSARY VS.

TORRINGTON PLANNING AND ZONING COMMISSION SUPERIOR COURT JUDICIAL DISTRICT OF LITCHFIELD AT LITCHFIELD NOVEMBER 28, 2012

APPEAL COMPLAINT To the Superior Court for the Judicial District of Litchfield at Litchfield comes the plaintiff, Hartford Dispensary, to appeal from a decision of the defendant, the Torrington Planning and Zoning Commission ("the Commission"). Plaintiff appeals and says: PARTIES 1. The Hartford Dispensary (the "Plaintiff), the applicant, is a Connecticut

corporation with a principal place of business at 335 Broad Street, Manchester, CT 06040. The Hartford Dispensary was created in 1871 to provide outpatient medical care for the indigent residing in the greater Hartford area. In response to a heroin epidemic in the 1960's and the lack of available methadone treatment facilities in the state of Connecticut, the Hartford Dispensary in 1971 began operating methadone treatment centers. Currently, the Plaintiff operates licensed facilities in Hartford, Manchester, Willimantic, New London, Norwich, New Britain and Bristol and serves 4,100 patients per day.

2.

The Plaintiff has an agreement to purchase property located at 241 Kennedy

Drive in Torrington ("the Property") and authority from the property owner to apply for zoning approval. 3. The Commission is the entity authorized by the City of Torrington pursuant to

Chapters 124 and 126 of Connecticut General Statutes to regulate land use in the City of Torrington.
FACTS

4.

Due to patient needs, the Plaintiff sought to open a medical facility in the City

of Torrington and conducted a lengthy and extensive search for an appropriate location. 5. The Plaintiff found a suitable location and entered into an agreement with the

property owner, The Connecticut Rivers Council, Inc., Boy Scouts of America, to purchase the Property. The Property was previously leased to the nearby Charlotte Hungerford Hospital, who used it as a child psychiatric center from 2000 until 2011. 6. The Property is located in an Industrial Park ("IP") zone. The Plaintiff's

intended use on the Property is equivalent to a physician's office or a medical office designed to attract and serve patients and clients on the premises. Under Torrington Zoning Regulations § 3.0, et seq., the Plaintiff's intended use would have been permitted in an IP zone without the need for a special exception. Even though the Plaintiff intended to renovate and increase the size of the building located on the Property, Plaintiff would

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have only been required to obtain site plan approval pursuant to Torrington Zoning Regulation § 8.4. 7. During the Plaintiff's search for a suitable location in Torrington and

negotiation to purchase the Property, rumors started to swirl about a methadone treatment clinic in the community. Some members of the community opposed the Plaintiff's plans in a classic case of NIMBY-ism: Not In My Backyard. This sentiment was expressed by those in the Torrington government, including the Mayor and City Planner. 8. Prior to submitting an application to the Commission, representatives of the

Plaintiff met with Torrington's Mayor, Ryan Bingham, the City Planner, Martin Connor, and other government officials on March 13, 2012 to informally discuss the Property and the Plaintiff's intended use. 9. The Mayor and the City Planner opposed the Plaintiff's intended use and Mr.

Connor even stated that he did not want such a facility in Torrington. The Mayor also signed a petition opposing the Plaintiff's intended use on the Property a few days thereafter. 10. Shortly after the initial informal meeting, the Commission sought to amend its

regulations in order to create a more burdensome process for the Plaintiff to obtain zoning approval in order to prohibit the Plaintiff from operating a methadone treatment center at the Property.

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11.

On March 23, 2012, only ten days after the informal meeting, Mr. Connor

drafted a memorandum to the Commission recommending that the Commission adopt a zoning regulation amendment for an Alternate Incarceration, Substance Abuse/Mental Health, Medical Marijuana Dispensary Overlay Zone (the "ASM Zone Amendment"). An ASM Zone would only apply to the following five uses: A. Alternate Incarceration Facilities. B. Substance Abuse/Mental Health diagnosis and treatment facilities. C. Substance Abuse/Mental Health walk-in emergency clinics. D. Substance Abuse/Mental Health counseling services, groups or clinics. E. A Medical Marijuana Dispensary licensed by the State of Connecticut. 12. An ASM Zone would not be permitted in residential zones or the downtown district and could only be located in Local Business ("LB"), Industrial Park ("I") and Industrial Park ("IP") zones. 13. The ASM Zone Amendment required that "the location of the facility [ ] be

compatible with the neighborhood in terms of traffic, noise, illumination and number of patients/clients served." 14. Additionally, the Commission could "impose such additional conditions and

modifications as it finds necessary to protect the public health, safety and welfare.' 15. The ASM Zone Amendment was scheduled for a public hearing on April 25,

2012. The minutes for the public hearing indicate that Mr. Connor's asserted basis for the

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ASM Zone Amendment was the potential legislation authorizing the dispensing of medical marijuana in Connecticut and resulting problems that have occurred upon the enactment of similar legislation in other states. 16. As of the date that Mr. Connor proposed the ASM Zone Amendment (March

23, 2012), the proposed medical marijuana legislation had not even been considered by the House of Representatives or Senate, let alone signed by the Governor into law. 17. At the public hearing on April 25, 2012, the Commission did not offer any

basis for including the other four uses in the ASM Zone Amendment, including the Plaintiff's intended use for the Property. 18. On April 25, 2012, the Commission approved the ASM Zone Amendment

and created the ASM Zone, which is now codified as Torrington Zoning Regulation § 4.16, et seq. 19. On June 11, 2012, the Plaintiff held a pre-application meeting with the Mayor,

Corporation Counsel, City Planner, Wetlands Agent, Director of Development, Chief of Police, Fire Marshal, Town Engineer and other government officials. While only requiring a site approval review before enactment of the ASM Zone, the Plaintiff now was instructed by the Commission that it needed to apply for a Zone Change to an ASM Zone along with site plan approval. 20. The Plaintiff continued to prepare its application despite the mounting

opposition. The City Planner even responded to a newspaper's question concerning

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whether the Plaintiff would apply by stating: "I'm sure, unfortunately, they're going to apply." Emphasis Added. 21. On July 5, 2012, the Plaintiff filed the Application for Zone Change from IP

to Alternate Incarceration, Substance Abuse/Mental Health, Medical Marijuana Dispensary Overlay Zone (ASM Zone) and Site Plan application (collectively, the "Application"). The Plaintiff intended to operate the facility under the name Torrington Health & Recovery Center. 22. The initial public hearing occurred on September 12, 2012. The Plaintiff

presented its Application and offered testimony related to several topics, including the adequacy of the parking on the Property, the minimal impact that the planned use would have on traffic, the need for such a facility in Torrington, the negligible effect on neighboring property valuations, and the lack of criminal activity at similar facilities. The public was also afforded an opportunity to comment on the Application. 23. Due to outstanding questions raised by the Commission and Torrington

officials, both prior to and at the initial public hearing, the public hearing was continued until October 10, 2012. 24. The Plaintiff responded to the Commission's questions and presented

additional evidence at the October 10, 2012 hearing. The public was again afforded an opportunity to comment on the Application.

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25.

The hearing was continued again to October 24, 2012. The public hearing

was officially closed on October 24, 2012. 26. In line with his earlier indication that he did not want a methadone treatment

clinic in Torrington, Martin Connor prepared a memorandum recommending denial of the Application. The memorandum claimed that the denial was based on inadequate parking, the driveway and parking lot being safety hazards, the proposed facility not being compatible with neighborhood, impact on property values, and the lack of visibility from the road, which would make the facility less secure. 27. vote of 4-1. 28. The Motion to Deny the Application borrowed heavily from Martin Connor's On November 14, 2012, the Commission voted to deny the Application by a

memorandum. 29. Notice of the denial was published in the Waterbury Republican-American on

November 16, 2012. 30. 31. Plaintiff files this timely appeal on November 30, 2012. The Plaintiff is aggrieved as (a) it is the contract purchaser for the Property

subject to the Application and (b) the denial of the Application by the Commission adversely affects its rights and interests.

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CLAIMS ON APPEAL FIRST COUNT: ASM ZONE AMENDMENT
32. The action of the Commission in approving the ASM Zone Amendment is

arbitrary and capricious, an abuse of its discretion, is ultra vires and beyond the scope of the Commission's jurisdiction, is not supported by evidence in the record and constitutes a denial of the Plaintiff's state and federal constitutional right to equal protection under the law. The ASM Zone Amendment is also legally defective because it imposes vague standards on an application which are incapable of being understood and met by an applicant, goes beyond standards set by town and state regulations, exposes applicants to inconsistent and arbitrary requirements and sets standards for methadone treatment clinics that are more stringent than those set for other medical facilities and thereby imposes barriers to patients' ability to access services. 33. The specific defects of the ASM Zone Amendment are: (a) The ASM Zone is illegal and unconstitutional as it violates the

Americans with Disabilities Act (42 U.S.C. § 12101, et seq; the "ADA") because it intentionally discriminates against, has a discriminatory effect on, and fails to make a reasonable accommodation to qualified individuals with disabilities, the Plaintiff's patients and prospective patients; (b) The ASM Zone is illegal and unconstitutional as it violates the

Rehabilitation Act of 1973 (29 U.S.C. § 793, et seq.) because it discriminates against

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qualified individuals with disabilities, the Plaintiff's patients and prospective patients, and upon information and belief, the Commission and the City of Torrington receive Federal financial assistance; (c) The ASM Zone is illegal and unconstitutional as it violates the Equal

Protection clause of the Fourteenth Amendment to the United States Constitution by discriminating against persons with disabilities, is based upon irrational prejudices against and perceptions of methadone patients and is not rationally related to a legitimate government interest; (d) The ASM Zone is illegal and unconstitutional as it violates the Equal

Protection clauses of the Connecticut Constitution by discriminating against persons with disabilities, is based upon irrational prejudices against and perceptions of methadone treatment patients and is not rationally related to a legitimate government interest; (e) Amendment; The Commission lacked jurisdiction to pass the ASM Zone

(0

The Commission did not provide any basis or authority for the

application of the ASM Zone to any of its covered uses besides the medical marijuana dispensary; (g) The ASM Zone Amendment impairs the Plaintiff's right to the

reasonable use of the Property; and

(h)

The ASM Zone Amendment affords the Commission unfettered

discretion to deny an otherwise satisfactory application based on vague and illusory standards.

SECOND COUNT: DENIAL OF APPLICATION
1.-33. Paragraphs 1-33 of the First Count are repeated here as if fully set out here. 34. The action of the Commission in denying the Application is arbitrary and

capricious, an abuse of its discretion, is ultra vires and beyond the scope of the Commission's jurisdiction, is not supported by evidence in the record and constitutes a denial of the Plaintiff's state and federal constitutional right to equal protection under the law. The denial of the Application is also legally defective because it imposes vague standards on the Application which are incapable of being understood and met by an applicant, goes beyond standards set by town and state regulations, and exposes applicants to inconsistent and arbitrary requirements in excess of those applied to other medical facilities. 35. The specific defects of the denial of the Plaintiff's Application are: (a) The Commission made findings and reached conclusions that were

inconsistent and contrary to the evidence and testimony presented to it; (b) The Commission's denial was not supported by substantial evidence,

and evidence was not introduced to contradict the evidence submitted in support of the Application;

(c) the Property; (d)

The Commission impaired the Plaintiff's right to the reasonable use of

The Commission did not grant the Application although it met the

requirements for approval; (e) The Commission relied on information that was impermissible or

inaccurate and deprived the Plaintiff of a fair hearing that comports with procedural due process; (f) The Commission and other Torrington officials were biased against

the intended use on the Property. The denial of the Application was based on stereotypes of and a general stigma against methadone treatment and substance abuse patients that have been proven to be untrue and unwarranted. This includes the Commission's focus on nearby recreation and day care facilities, "loitering" concerns, property valuation issues, and heightened "security" concerns due to the impaired visibility of the Property. (g) From the commencement of the Plaintiff's expression of its intention to

site a methadone treatment center in Torrington, the consideration of its Application was doomed to failure, as the Mayor, City Planner and others indicated that they did not want such a use in Torrington. In reaching the decision on the Plaintiff's Application, the Commission did not fully and fairly weigh the evidence submitted to the Commission during the public hearings and base its decision on that evidence. The Commission's

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decision on the Plaintiff's Application was the result of pre-determination by one or more members of the Commission, who never wavered from initial objection to the Application. (h) The finding that the Application did not comply with Torrington Zoning

Regulation §4.16.6.0 ("The location of the facility shall be compatible with the neighborhood in terms of traffic, noise, illumination and number of patients/clients served. The facility shall be compatible with its setting in terms of scale, materials and design") is in error and not supported by evidence in the record. The Plaintiff submitted evidence and expert testimony during the public hearing that was not rebutted by evidence or expert testimony. The Commission also ignored that the Property was used as a child's psychiatric facility for the prior eleven years, and the Plaintiff's intended use would have been substantially similar to the prior use so that it would be equally compatible with the neighborhood. (i) The finding that the proposed parking on site was inadequate is in

error and not supported by evidence in the record. The Application complied with the parking requirements of Torrington Zoning Regulation § 5.13.4 and the City Planner previously stated that only 14 spaces would be required at the Property. The finding also ignored additional measures proposed by the Plaintiff including off-site parking for employees who would take a shuttle to the facility as well as a lease for additional parking in an adjacent lot in order to appease any parking concerns and also ignored evidence of similar satisfactory parking arrangements at the Plaintiff's other clinics.

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DEMAND FOR RELIEF The Plaintiff seeks the following relief: 1. That the Court sustain the appeal, reverse the decision of the Commission,

declare that the ASM Zone Amendment is unconstitutional and void, and order the Commission to grant the Application; 2. 3. Costs; and Such other relief as appears equitable and appropriate to the Court.

Dated at Hartford, Connecticut this 28 th day of November, 2012. Plaintiff-Appellant Hartford Dispensary

By: Diane W. Whitney Jonathan A. Kaplan Pullman & Comley, LLC 90 State House Square Hartford, CT 06103-3702 Juris No. 409177 Telephone 860 424 4300 Facsimile 860 424 4370 Its Attorneys

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Please enter the appearance on behalf of Plaintiff-Appellant Hartford Dispensary of: Pullman & Comley, LLC 90 State House Square Hartford, CT 06103-3702

ACTIVE/55164.35/JKAPLAN/3927100v4

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