STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY CHRISTOPHER A. COLE and REHABILITATION SUPPORT SERVICES, INC., Petitioners, -against- NOTICE OF PETITION THE TOWN OF ESOPUS, BUILDING INSPECTOR and ZONING ENFORCEMENT OFFICER TIMOTHY KEEFE, Index No.: and THE TOWN OF ESOPUS ZONING BOARD OF APPEALS, Respondents-Defendants. ORAL ARGUMENT REQUESTED PLEASE TAKE NOTICE, that upon the annexed Petition of Christopher A. Cole and Rehabilitation Support Services, Inc., duly verified the 14" day of March, 2016, the affidavit of Timothy Fogarty, duly sworn to on the 14" day of March, 2016, and the Memorandum of Law dated the 15" day of March, 2016, together with the exhibits attached to the foregoing, pursuant to Article 78 of the CPLR, the petitioners will move the Columbia County Supreme Court at a term thereof to be held at the Albany County Courthouse, 16 Eagle Street, Albany, New York 12207, on the 30" day of April, 2016, at 9:30 o'clock in the forenoon of that day, or as soon thereafter as counsel may be heard, for an Order: (a) pursuant to CPLR 7803(2) and 7803(3) reversing the February 16, 2016 Resolution of the Respondents in its entirety; and further (b) directing that the Town of Esopus Zoning Board of Appeals issue an approval reversing the ‘August 10, 2015 determination of Building Inspector/ZEO Keefe and declaring that the petitioners proposed use of 141 Prospect Street as residence for women recovering from alcoholism and/or substance abuse constitutes a one family residence under the §123-61 of the‘Town of Esopus Zoning Code and the Schedule of Permitted Uses set forth in the Town of Esopus Zoning Code; and further (c) awarding Petitioners their costs, expenses and reasonable attorneys’ fees incurred herein; and further (d) together with such additional or different relief as the Court shall seem just and proper. PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §7804(c), you are required to serve a verified answer at least five (5) days prior to the return date herein, PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §7804(e), you are required to annex to your answer certified transcripts of the records of proceedings subject to this review, as well as any and all affidavits to be used herein. Dated: March 17, 2016 By: Hudson, (518) 828-2021STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY CHRISTOPHER A. COLE and REHABILITATION SUPPORT SERVICES, INC., Petitioners, -against- VERIFIED PETITION THE TOWN OF ESOPUS, BUILDING INSPECTOR and ZONING ENFORCEMENT OFFICER TIMOTHY KEEFE, Index No.: and THE TOWN OF ESOPUS ZONING BOARD OF APPEALS, Respondents-Defendants. Petitioners, Christopher A. Cole and Rehabilitation Support Services, Inc., by and through their attorneys, Freeman Howard, P.C., as and for their Verified Petition, respectfully show this Court and allege as follows: JURISDICTION AND VENUE 1. Jurisdiction is conferred upon this Court pursuant to Section 7801 of the Civil Practice Law and Rules of the State of New York. 2. Venue is appropriate in Albany County pursuant to Section 506(b) of the Civil Practice Law and Rules of the State of New York. THE PARTIES 3. Petitioner Christopher A. Cole is the owner of real property located at 141 Prospect Street in the Town of Esopus, New York (“subject premises”), which bears tax map number 56,059-1-6 and is located in the R-12 zoning district of the Town of Esopus.4, Petitioner Rehabilitation Support Services, Inc. (“RSS”), is a 501(¢)(3) not-for- profit corporation duly incorporated and authorized pursuant to the laws of the State of New York and United States of America, with a principal place of business located at $172 Western Tumpike, Altamont, New York 12009. 5. Petitioner RSS is a contract vendee with Petitioner Cole for the purchase of the subject premises for the purpose of constructing a single family residence for women who have successfully completed a chemical dependency program and are recovering from alcoholism and/or substance abuse. 6 Upon information and belief, respondent Town of Esopus is a municipal corporation duly organized pursuant to the laws of the State of New York. 7. Upon information and belief, respondent Timothy Keefe is the Building Inspector and Zoning Enforcement Officer (“ZEO”) for the Town of Esopus. 8. Upon information and belief, respondent Town of Esopus Zoning Board of Appeals (the “ZBA”) is an administrative body of the Town of Esopus statutorily responsible for deciding any question involving the interpretation of any provision of the Town of Esopus Zoning Code upon appeal from a decision of the Town of Esopus Building Inspector and Zoning Enforcement Officer. SUMMARY OF PROCEEDING 9. This proceeding is brought pursuant to Article 78 of the Civil Practice Law and Rules (“CPLR) seeking to annul, vacate and set aside the February 8, 2016 Resolution (“Resolution”) of the Town of Esopus Zoning Board of Appeals which determined that thepetitioners proposed use of the subject premises was not a permitted use under the Town of Esopus Zoning Code. 10, The Esopus ZBA’s resolution denying the RSS application was arbitrary and capricious for the reason that the ZBA failed to properly review the RSS application under the applicable provisions of the Esopus Zoning Code, based its denial upon factors that are without merit in law or fact, and erroneously cited irrelevant factors as a pretext to denying the application. 11. Accordingly, the Town of Esopus Zoning Board of Appeals’ February 16, 2016 Resolution denying petitioners” application was arbitrary and capricious, contrary to state and federal law, violative of the New York and United States Constitution, and must be vacated. FACTUAL AND PROCEDURAL BACKGROUND 12, Petitioner Rehabilitation Support Services, Inc. ("RSS") seeks to establish a residence for women recovering from alcoholism and/or substance abuse at a 2+ acre property located at 141 Prospect Street in the Town of Esopus, New York. 13, RSS is a not-for-profit mental health and rehabilitation agency whose mission is to enrich and empower the lives of consumers by providing services and opportunities for meaningful emotion, social, vocational and educational growth. 14, Sixteen women will reside in RSS's proposed two-story house located at 141 Prospect Street in the Town of Esopus, Ulster County, New York. 15, The residence will provide safe, supervised, residential housing with the goal of maintaining an abstinent lifestyle,16. The residence is not a detox facility, and no nursing or medical services will be provided there. Residents will have already completed a long-term treatment program and will be transitioning to the sober living environment to be provided by RSS before fully integrating back into society. 17, For many of the women residing in the house, RSS will help facilitate the reunification of children with their mothers and entry back into the workforce. Residents will have access to educational and job opportunities, while adhering to structured monitoring protocols. 18, ‘The women at the residence will live together as a family. They will cook together, maintain the residence together, and assist each other in their recovery from alcoholism and/or substance abuse. 19. The proposed residence came about as the result of an April 10, 2008 Request for Proposals (the “RFP”) issued by the Ulster County Mental Health Department (UCMHD") identifying the need for a community residence exclusively dedicated to serving this community of women in Ulster County. A copy of the Request for Proposal is annexed hereto as Exhibit A. 20. Inthe RFP, Ulster County noted that the “{!Jocation of [the] Residence will be important [sic]. A populated location or a site located between 2 populated areas will be considered more desirable than a rural locale”. See Exhibit A, §9.0. 21. On June 3, 2008, RSS was notified by Ulster County that it was selected as the agency “to work with Ulster County to develop and operate a Woman's Community Residential Program” in accordance with the RFP. A copy of the June 3, 2008 correspondence from Ulster County is annexed hereto as Exhibit B.22. After searching for over four (4) years for a suitable site to locate the residence, in May of 2012, RSS identified a site at 141 Prospect Street in the Town of Esopus that fit the description of the type of site Ulster County said it was looking for in its RFP. See Exhibit A, §9.0. In response, the Ulster County Local Government Unit noted that it “fully supports this, project and is very pleased to see the project coming to fruition”. A copy of the statement from Ulster County is annexed hereto as Exhibit C. A Determination is made by the Building Inspector/ZEO that the RSS Project is a ‘Single Family Dwelling Under the Town of Esopus Zoning Code 23. In May of 2015, RSS was instructed to attend a pre-submission conference before the Town of Esopus Planning Board (“Planning Board”) to discuss its project. At the pre-submission conference, RSS was directed to submit an informal application to the Planning Board for review. 24. As instructed, on May 26, 2015 RSS submitted its application to the Planning Board for an interpretation of the Code related to the proposed residence. As outlined in the letter from RSS’s counsel that accompanied the application, RSS sought a determination from the Town of Esopus that the proposed residence was a residential one-family dwelling under the Esopus Zoning Code. (“RSS May 2015 Application”). A copy of the May 26, 2015 application and accompanying correspondence is annexed hereto as Exhibit D. 25. The RSS May 2015 Application set forth the intended use at 141 Prospect Street, provided an analysis of the Town of Esopus Zoning Code, and cited federal court cases that had previously held that group homes and substance abuse treatment centers are considered single family residences and dwellings. The RSS May 2015 Application further cited federal statutes and court decisions which noted that it is unlawful “to discriminate in the sale orrental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of ahandicap”. See Exhibit D. 26. Upon receipt of the RSS May 2015 Application, the Planning Board referred the matter to the Town of Esopus Building Department. On June 1, 2015, the Town of Esopus ‘Town Board held a meeting wherein the Board voiced their displeasure over the residential facility coming to the town. After acknowledging the public uproar that would likely follow the proposed residence, then Supervisor John Coutant noted that the proposed residence was not being constructed for nursing care or medical treatment, stating: “This is not paraplegic, handicapped or anything like this,” Coutant said. “This is for alcohol abuse and ...as I understand it the people are partially free to come and go as they want.” While the Town of Esopus has posted no minutes of this meeting on their website, The Daily Freeman newspaper reported on the meeting in a June 1, 2015 article entitled, “Esopus board upset over planned treatment facility.” A copy of the June 1, 2015 article from The Daily Freeman is annexed hereto as Exhibit E. 27. Thereafter, in a letter issued and transmitted on June 7, 2015, Town of Esopus Building Inspector and ZEO Timothy Keefe determined that the proposed residence was a single family dwelling under the Esopus Zoning Code. A copy of the June 7, 2015 determination from Timothy Keefe is annexed hereto as Exhibit F. 28. Specifically, Building Inspector/ZEO Keefe advised as follows: Please be advised that after careful review of the information provided by the applicant dated May 26, 2015, a review of the Building Code of NY and the Town of Esopus Zoning Code, the proposed construction of a single family dwelling for the purpose of Chemical Dependence Rehabilitation will not require a Special Use Permit or Site Plan approval. See Exhibit F.The Town of Esopus seeks to unwind the determination of its Building Inspector/ZEO 29. Upon information and belief, following respondent Keefe’s June 7, 2015 correspondence, officials within the Town of Esopus changed course and started down a path with the goal of unwinding Building Inspector/ZEO Keefe’s determination and thwarting RSS’s legal use of the subject premises. 30. On June 12, 2015, Supervisor Coutant was admitted to the hospital after feeling sluggish, Unfortunately, Supervisor Coutant passed away on June 19, 2015. A copy ofa June 19, 2015 Times Herald-Record newspaper article, “Esopus Supervisor John Coutant dies at age 69”, is annexed hereto as Exhibit G. 31. On June 15, 2015, Building Inspector/ZEO Keefe suddenly reversed course, writing to counsel for RSS advising petitioner to disregard his June 7, 2015 determination that the proposed use was a single family residence. Without citing any provision of the Esopus Zoning Code, any material fact related to the proposed use of the facility as a residence, or any statutory law or case law supporting t radical change in position, Mr. Keefe simply wrote: “Pursuant to information provided to my office by Town Counsel...”, a proposed site plan ‘would be needed to make a final determination on the RSS project. A copy of the June 15, 2015 correspondence from respondent Building Inspector/ZEO Timothy Keefe is annexed hereto as Exhibit H. 32. On June 18, 2015, after publicly acknowledging that they had no legal authority ‘over whether or not the residence proposed by RSS was permitted under the Esopus Zoning Code, the Esopus Town Board nonetheless proceeded to take public comments from membersof the community opposed to the residence. A copy of the June 18, 2015 minutes of the Esopus Town Board are annexed hereto as Exhibit I. 33. On June 19, 2015, Kyle Barnett was appointed Supervisor for the Town of Esopus following John Coutant’s sudden, unexpected death. See Exhibit G. 34. Approximately 2 weeks later, in correspondence dated July 6, 2015, Keefe again wrote to counsel for RSS, this time advising petitioner that an application for a Building Permit would now need to be filed with the Town, at which point a referral would be made to the Planning Board for their consideration. A copy of the July 6, 2015 correspondence from. Building Inspector/ZEO Timothy Keefe is annexed hereto as Exhibit J. 35, Based upon the inconsistent positions being forwarded by the Town of Esopus, on August 3, 2015, RSS once again requested a code interpretation from Building Inspector/ZEO Keefe that the proposed use at 141 Prospect Street constituted a single family residence. A copy of the August 3, 2015 interpretation request is annexed hereto as Exhibit K. 36. On August 10, 2015, Timothy Keefe issued a second opinion letter, this time completely reversing his prior finding, and baselessly declaring that the residence at 141 Prospect Street proposed by petitioner RSS was a “convalescent home” and that pursuant to the Schedule of Permitted Uses in the Esopus Zoning Code, it constituted “Nursing and personal care facilities” that were not permitted in the R-12 zoning district. See Exhibit L. 37. Up until August 10, 2105, no changes were made to the proposed project after respondent Building Inspector/ZEO Keefe’s June 7, 2015 determination that it was a single family residence. Petitioner RSS had not changed the nature of the proposed use (a single residence serving women who had successfully completed a treatment program), the numberof beds at the residence (16 beds) or the location of the residence (141 Prospect Street). See Exhibits F and L. 38. In fact, at no time during that period did RSS provide any information to Building Inspector/ZEO Keefe that nursing care would be provided at the residence. 39. While nothing with regard to the RSS project had changed, what had changed ‘was that community opposition had formed against the project and the Town of Esopus was under new leadership. Between the June 7, 2015 and August 10, 2015 determination of the Building Inspector/ZEO, the Esopus Town Board (i) held two public meetings to discuss an issue over which they acknowledged they had no authority, (ji) had solicited an intense amount of public outcry against the proposed residence, and (iii) had a newly appointed ‘Supervisor who had just taken over for five term supervisor John Coutant, See Exhibits E and I. 40. Upon information and belief, Building Inspector/ZEO Keefe changed his mind solely based on community opposition to RSS's proposed residence. Interestingly, his August 10, 2015 determination does not dispute that the proposed structure is a single family dwelling, nor does it find that the residents of the structure are not the functional equivalent of a family. Rather the sole basis for Building Inspector/ZEO's denial of the residential use at 141 Prospect Street is his finding that the proposed use in the single family residence it L. constitutes a “convalescent home”. See Ex! 41, Inhis August 10, 2015 determination, Building Inspector/ZEO fails to cite a single material fact in the RSS application, a single provision of the Esopus Town Code, a provision of the New York State Building Code, or any state or federal statutory or case lawin support of his newfound conclusion that the proposed single family residence at 141 Prospect Street is a “convalescent home”, See Exhibit L. 42. Petitioners filed an appeal of Building Inspector/ZEO Keefe’s August 10, 2015 interpretation to the Town of Esopus Zoning Board of Appeals (“ZBA”) on September 4, 2015. A copy of the September 4, 2015 appeal is annexed hereto as Exhibit M. Town of Esopus Zoning Code 43, The Zoning Code for the Town of Esopus is set forth in Chapter 123 of the Town Code. (“Zoning Code”), A copy of Chapter 123 of the Esopus Town Code is annexed hereto as Exhibit N. 44, Section 123-6 (D) of the Esopus Zoning Code sets forth the description of the R- 12 zoning district, providing: D. R-12 Moderate Density/Hamlet Residential District. The Moderate Density/Hamlet Residential District has been established to regulate development in two distinct categories of town: the areas in and around Port Ewen developed within the water and sewer districts and the rural hamlet areas in the southern part of Town which were developed at a higher density than the surrounding area but which lack central utilities. To reflect the varied utility services in this district, development density is based on a sliding scale, geared to the availability of central water and/or sewer service, ranging from 1/3 of an acre to one acre per dwelling unit. Two-family homes are also permitted and multifamily housing is permitted under certain conditions. See Exhibit N. 45. Under “Schedule of Permitted Uses” in the Zoning Code, a one-family dwelling is permitted as of right in the R-12 zoning district. A copy of the Schedule of Permitted Uses is annexed hereto as Exhibit O. 46. Section 123-61 of the Zoning Code further provides the following relevant definitions with regard to dwelling units:DWELLING - A building designed or used principally as the living quarters for one or more families (see residences). DWELLING, ONE-FAMILY — A detached building containing only one dwelling unit. DWELLING UNIT - A building or entirely self-contained portion thereof designed for occupancy by only one family (including any domestic staff ‘employed on the premises) and having complete cooking, sanitary and sleeping facilities for the exclusive use of the occupants of the dwelling unit. A boardinghouse, convalescent home, dormitory, fraternity or sorority house, hotel, inn, lodging or rooming house, nursing or other similar home or other similar structure shall not be deemed to constitute a dwelling unit. 47, Neither the term “family”, “one-family” or “single family” is defined anywhere in the Town of Esopus Zoning Code. See Exhibit N. 48. Building Inspector/ZEO Keefe’s August 10, 2015 determination did not find that the proposed structure at 141 Prospect Street was not a one-family dwelling. Rather, the sole basis for his determination that the proposed residential use was not permitted in this R-12 zoning district was his unsubstantiated declaration that it was a “convalescent home” falling, under the “Nursing and personal care facilities” use category in the Esopus Zoning Code, See Exhibit L and O. 49. Section 123-61 of the Zoning Code defines “convalescent home” as follows: SKILLED NURSING HOME or CONVALESCENT HOME - A facility operated for the purpose of providing lodging, board and nursing care to sick, invalid, infirm, disabled or convalescent persons for remuneration. See Exhibit N. 50. Section 123-10 (B) of the Zoning Code provides that questions involving the classification of a particular use are to be determined by reference to the Standard Classification (SIC) Manual. Section 123-10 (B) specifically states as follows:The Use Schedule is based on the categories and terminology used in the Standard Industrial Classification (SIC) Manual published by the Federal Office of Management and Budget (1987 Edition). In the case of a questi or interpretation as to the classification of a particular use, the definitions and categories used in the SIC Manual shall prevail, unless otherwise specifically defined in § 123-61 of this chapter, in which case the use is noted with an asterisk (*), 51. Under the “Schedule of Permitted Uses” set forth in the Esopus Zoning Code, “Nursing and personal care facilities” is further defined by reference to SIC Manual number (805). See Exhi 0. 52. SIC Manual Industry “Group 805: Nursing and Personal Care Facilities”, is contained under “Major Group 80: Health Services”. As set forth in the manual, “This group includes establishments primarily engaged in furnishing medical, surgical and other health services to persons...”. A copy of the Major Group 80 Health Services Classification is annexed hereto as Exhibit P. 53. SIC Manual Industry “Group 805: Nursing and Personal Care Facilities” contains three sub-classifications defining the uses under this category: (i) 8051 Skilled ‘Nursing Facilities; (ii) 8052 Intermediate Care Facilities; and (iii) 8059 Nursing and Personal Care Facilities, Not Elsewhere Classified. See Exhibit P. 54, The “8051: Skilled Nursing Care Facilities” classification is described as, “Establishments primarily engaged in providing inpatient nursing and rehabilitative services to patients who require continuous health care, but not hospital services...”. Cited examples of this type of facility include “Nursing homes, skilled”, “Mental Retardation Hospitals” and “Convalescent Homes with continuous nursing care”. A copy of the 8051 Skilled Nursing Facilities classification is annexed hereto as Exhibit Q.58. The RSS residence will not be providing inpatient nursing care, will not be providing continuous medical care under the direction of a physician, and is not a Medicare certified skilled nursing facility. 56. The “8052: Intermediate Care Facilities” classification is described as “Establishments primarily engaged in providing inpatient nursing and rehabilitative services, but not on a continuous basis...”. Cited examples of this type of facility include “Nursing, Homes, intermediate care” and “Intermediate Care Facilities”. A copy of the 8052 Intermediate Care Facilities classification is annexed hereto as Exhibit R. 57. The RSS residence will not be providing inpatient nursing care, will not be providing weekly inpatient consultations with a registered nurse, is not delivering skilled nursing care, is not a nursing home or intermediate health care facility, and will not be a Medicare certified intermediate care facility. 58. The “8059: Nursing and Personal Care Facilities, Not Elsewhere Classified” classification is described as “Establishments primarily engaged in providing some nursing and/or health related care to patients who do not require the degree of care and treatment that a skilled or intermediate care facility is designed to provide. Patients in these facilities, because of their mental or physical condition, require some nursing care, including the inistered administering of medications and treatments or the supervision of self-ad ‘medications in accordance with a physician’s orders...”. Cited examples of this type of facility include “Rest homes with health care”, “Psychiatric patient’s convalescent homes”, “Convalescent homes for psychiatric patients, with health care”, and “Homes for the mentally retarded, with health care”. A copy of the 8059 Nursing and Personal Care Facilities, Not Elsewhere classification is annexed hereto as Exhibit S.59. The RSS residence will not be providing any nursing care, will not be a nursing home and is not a Medicare certified health care facility. 60. Pursuant to the foregoing, respondent Building Inspector/ZEO Keefe’s August 10, 2015 finding that the RSS residence constituted a “convalescent home” is contrary to the express language of the Esopus Zoning Code which defines “Nursing Home or Convalescent Home” as a “facility operated for the purpose of providing lodging, board and nursing care to sick, invalid, infirm, disabled or convalescent person for renumeration.” See Exhibit N. Respondent Keefe failed to recite any evidence, and the record is void of any evidence demonstrating that nursing care would be provide at this residence. See Exhibit L. 61. Similarly, respondent Building Inspector/ZEO Keefe’s August 10, 2015 determination is contrary to the SIC Manual classifications incorporated into the Esopus Zoning Code. There is no evidence in the record supporting respondent Keefe’s determination that the residence proposed by RSS at 141 Prospect Street is a type of “Nursing Home”, “Mental Retardation Hospital” or “Intermediate Care Facility” contemplated by the SIC Manual classifications. See Exhibits P, Q, R, and S. 62. Respondent Building Inspector/ZEO Keefe arbitrarily and capriciously disregarded the fact that no nursing care was to be provided at the 141 Prospect Street residence, that any health care provided to the residents would be provided off site, strictly on an as-needed basis, and that the residents of 141 Prospect Street would not be receiving any skilled nursing care at the residence. 63. Moreover, respondent Building Inspector/ZEO Keefe disregarded the New York State Building Code classification for the type of use proposed by RSS. The NYS Office of Alcoholism and Substance Abuse Services (“OASAS”) has created occupancy classificationsfor the Building Codes of New York State, Pursuant to Part 819, Chemical Dependence Residential Services with five (5) to sixteen (16) beds are classified as an R-4 occupancy classification. Section 310.1 of the 2010 Building Code of New York State (“BCNYS") expressly states: R-4 Residential occupancies shall include buildings arranged for occupancy as residential case/assisted living facilities including more than five but not more than 16 occupants, excluding staff. See Exhil M. 64. The BCNYS further states that R-4 occupancies shall comply with the Residential Code of New York State (“RCNYS”). Section R101.2.1 of the 2010 RCNYS states: ‘Where a building or premises under the custody, licensure, supervision or jurisdiction of a department or agency of the State of New York is regulated as a one or two-family dwelling or multiple single-family dwelling (townhouse), in accordance with established laws or regulations of that department or agency, said buildings or premises, such as a community residence or hospice residence, and their accessory structures shall comply with this code. See Exhibit M. 65. Inhis second determination on August 10, 2015, Respondent Keefe completely disregarded and ignored both the occupancy classifications of OASAS and the salient sections of the New York State Building Code. See Exhibit M. 66. Finally, respondent Building Inspector/ZEO Keefe ignored the materials provided by petitioner RSS which demonstrated that denial of the proposed single family residence at 141 Prospect Street for use by individuals recovering from alcohol and drug dependency would be discriminatory. See Exhibit M.67. _ Notwithstanding the clear language of the Town of Esopus Zoning Code, the SIC Manual classifications, provisions of the New York State Building Code, and the relevant case law, Building Inspector/ZEO Keefe nonetheless inexplicably reversed his June 7, 2015 finding and arbitrarily and capriciously determined on August 10, 2015 that the residential home proposed to be constructed at 141 Prospect Street was an unpermitted convalescent home. Proceedings before the Town of Esopus ZBA 68. Petitioner RSS appeared before the Town of Esopus ZBA at is regular meeting on October 20, 2015. Thereafter, a public hearing on the petitioners’ application was held on November 17, 2015 and December 15, 2015. 69. RSS submitted a Memorandum of Law in Support of its application on ‘November 17, 2015 which once again laid out the factual basis and legal standards that should be applied to its proposed project. A copy of the November 17, 2015 Memorandum of Law is annexed hereto as Exhibit T. 70. Atno time was any information provided to the ZBA demonstrating that the residence was going to be providing any type of nursing care, health care and/or other medical services. Rather, at the public hearing, counsel for RSS made it clear to the ZBA that RSS ‘would not be providing any type of medical care or operating the residence as a nursing home. Specifically, at the public hearing on November 17, 2015, RSS counsel Paul Freeman stated the following: And what we are proposing is a single-living residence that will provide a family living arrangement for women who are transitioning back into society, those who have suffered from alcohol abuse or drug abuse. What we are not is a facility, What we are not is a treatment facility. What we are not is a er and/or a nursing home. What we are is a residence that is providing people who have gone through those programs...is a chance to come back into a life in a familysetting where they are living together with other similar women who have tried to address the substance abuse issues so that they can transition themselves back into society. A copy of the transcript taken of the November 17, 2015 public hearing is annexed hereto as Exhi U, 71. Imresponse thereto, ZBA attorney Peter C. Graham, Esq. wrote a letter to the ZBA dated December 15, 2015 wherein he stated “... Nothing in that Memo changes my opinion that the proposed use is not entitled to the benefit of one family dwelling under the Town of Esopus Zoning Code...”. Attorney Graham did not recite any provisions of the Esopus Zoning Code, any provision of the SIC Manual, any provision of the New York State Building Code and/or state or federal case law in support of his opinion. A copy of Peter C. Graham’s December 15, 2015 correspondence is annexed hereto as Exhibit V. 72. Rather, attorney Graham simply referred to a one page Executive Summary (which he erroneously claimed was prepared by petitioner RSS ) that he alleged showed a deliberate strategy by petitioner to circumvent the Town of Esopus Zoning Code by calling the structure a single family residence. See Exhibit V. 73. Inpoint of fact, this Executive Summary referenced in attorney Graham’s letter was part of a Feasibility Study performed by Architecture + of Troy, New York for the New York State Dormitory Authority (DASNY), not RSS. As specifically set forth in the Executive Summary, “This study was prepared by architecture + at the request of the Dormitory Authority on behalf of the New York State Office of Alcoholism and Substance ‘Abuse Services to determine if the property at 141 Prospect Street would be able to appropriately serve the agency, its clients and its staff...” Thus, this study was not performedby RSS, but was rather carried out under the auspices of DASNY and the NYS Office of Alcoholism and Substance Abuse Services (OASAS). See Exhibit V. 74, Further, the findings of this Feasibility Study were completely consistent with the factual evidence and law submitted to the ZBA by the petitioner, namely, that Appendix S of the New York State Building Code explicitly defines an OASAS Part 819 chemical dependence residential services facility housing 5-16 residents as a residential structure as opposed to a commercial structure, See Exhibit V. 75. The Feasibility Study thus found that construction of a 16 bed facility, as, proposed by RSS, was a single family dwelling under the Town of Esopus Schedule of Uses, just as Building Inspector/ZEO Keefe had first determined in June 2015. See Exhibit V. 76. ZBA attorney Graham’s erroneous declaration that the aforesaid study was conducted by RSS as part of a deliberate strategy, and his erroneous characterization of the contents of the Feasibility Study inappropriately tainted the ZBA’s review of the subject application. See Exhibit V 71. Noother evidence was submitted by Building Inspector/ZEO Keefe in support of his August 10, 2015 determination that the residence at 141 Prospect Street was a nursing and personal care facility as opposed to a single family residence under the Esopus Zoning Code. 78. Inaresolution dated February 8, 2016, the Esopus ZBA refused to overturn the August 10, 2015 determination of Building Inspector/ZEO Keefe that the use proposed by RSS was a “convalescent home” constituting a “Nursing and personal care facilities” that is. not permitted in the R-12 zoning district. A copy of the February 16, 2016 resolution of the Town of Esopus ZBA is annexed hereto as Exhibit W.79. Respondents’ February 16, 2016 ZBA Resolution arbitrarily and capriciously cites five factors for its determination that that proposed residence cannot be a single family dwelling under the Code: (1) the layout and operation of the proposed residence; (2) the “transient nature” of the intended occupants; (3) the “open campus” and intended occupants? backgrounds; (4) neighborhood opposition and characteristics; and (5) other considerations. 80. With regard to the layout and operation of the proposed residence, there is nothing in the Esopus Zoning Code that states that a "single family dwelling” had to be of a certain size, dimensions, layout or operation, and, indeed, the Town's definition of “dwelling” contemplates that a family may have domestic staff employed on the premises. See Exhibit N. 81. _Inits resolution, the Respondent ZBA fails to acknowledge and/or otherwise address the fact that the Esopus Code does not prohibit any other person or entity in the town from constructing a structure of the same size, dimension, layout or proportion as the proposed residence for occupancy. See Exhibit N. Respondent ZBA also failed to acknowledge and/or otherwise address that the size of the structure or the number of occupants are not restricted under the Code in any manner. See Exhibit N. 82. There is no provision in the Esopus Zoning Code that requires a "single family dwelling” to be a certain size or operation, See Exhibit N. 83. Most importantly, respondent Building Inspector/ZEO Keefe’s August 10, 2015 determination did not dispute petitioner RSS’s contention that the structure to be built at 141 Prospect Street was a single family dwelling unit. Rather, respondent Keefe’s sole basis for finding that it was not a single family residence was his determination that the use was one of a “convalescent home”. See Exhibit L.84, With regard to whether the RSS residence was a "single family dwelling”, the RSS residence should have been judged on its own merits rather than in comparison to surrounding dwellings as the Town's usual procedure is to judge a residence on its own merits rather than in comparison to other dwellings or residences in its vicinity. 85. _ With regard to the second factor cited in the Resolution, the Respondent ZBA also attempted to rely on the occupancy time of the intended occupants of between 5 to 9 months for the assertion that they are “transients”. see Exhibit W §§ III[A][1}, IV[E]. 86. Asset forth in the Memorandum of Law accompanying this affidavit, it is clear that residents of a home for recovering alcoholics and drug addicts cannot be considered “transient” in nature. Case law on this issue could not be more clear and demonstrates that the occupants of the proposed residence, being recovering addicts of alcohol and drug abuse, are not considered transient, but rather permanent residents. Any attempts by Respondent ZBA to claim the occupants would be “transient” is thus in violation of applicable laws. 87. Furthermore, there is nothing in the Esopus Zoning Code that prevents any home in the R-12 District from renting to third parties for a day, a week, a month or several months. See Exhi N. Asaresult, the fact that the occupants may only reside at the proposed residence for a period up to nine months is irrelevant to the determination of whether the proposed residence is a single family dwelling under the Code. See Exhibit N. 88. On the third cited factor in the Resolution, the Respondent ZBA based its conclusion on speculative and irrelevant arguments that the intended occupants of the proposed residence will be allowed (i) to leave the proposed residence to smoke, (ii) “congregate at the public street frontage of the site, adjacent to a narrow roadway”, (iii) to leave the “Open Campus” and (iv) “participants of unknown criminal background checks“will be wandering through the surrounding neighborhood”. See Exhibit W §§ VIC]; VID]; VIF]. Once more, without citing any authority, Respondent fails to acknowledge that any other owner of property in the R-12 District of the Town of Esopus is allowed to leave their property, “smoke” in public, wander the streets and congregate in public places. In point of fact, if the intended occupants were not allowed to leave the proposed residence this could, arguendo, point to something different than a single family home. 89. Further, without legal support, Respondent claims that the fact that background checks are not done on the occupants must somehow be indicative of the proposed residence not being a single family residence. This argument defies common sense and points to the ‘outward prejudicial nature of Respondent's decision. Irrefutably, any other residents would be entitled to occupy properties in the R-12 District of the Town of Esopus without criminal background checks. 90. The ZBA's determination that the proposed residence cannot be a single family dwelling singles out this single family residence from the others within the town and treats it entirely different. Such action likewise demonstrates the town’s own prejudices against the people seeking to reside in the proposed residence because of their disabilities. Therefore, the cited “findings of fact” in the February 16, 2016 ZBA Resolution do not rationally relate to any finding that the proposed residence is not a single family dwelling under the Code. 91. The fourth factor cited in the February 16, 2016 Resolution is equally specious and without merit, neighborhood opposition and characteristics. This cited factor is simply a thinly veiled nod to the prejudices expressed by members of the respondent ZBA and the community that has no rational relationship to the Esopus Zoning Code or other applicable laws, See Exhibit W §§ IV[C]; VID}; VIF]. Even though the intended occupants areadmittedly women recovering from alcohol and substance dependency, in the February 16, 2016 ZBA Resolution, Respondents rely on community fears and prejudices by claiming that the Petitioner “provide[s] services to persons with ‘severe and persistent’ mental illness”. See Exhibit W § IV[A]. Also, despite the fact that the intended occupants will all have ‘completed a detox program and be in active off-site counseling services, in the very next sentence, Respondents further rely on community fears and prejudices by claiming that the “residents will be alcohol or substance abusers”. See Exhibit W § IV [B]. 92. After noting that they received strong neighborhood opposition some of which were “specific to the proposed site of the” proposed residence Respondent then proceed to yield to community opposition and prejudices in denying Petitioners’ application. See Exhibit WS IViA}. 93. Respondent fails to cite any applicable legal authority for its assertions that these factors are relevant to its Code interpretation. Respondent likewise fails to note how its “findings” are relevant to the determination of whether the proposed residence is a single family dwelling. Respondent further fails to allege or claim that any other home in the R-12 District cannot be used without “criminal background checks”, have occupants that smoke and ‘wonder around the community. In reality, the only conclusion that these “findings” actually support is that the Code was strictly construed in favor of Respondents in an arbitrary and capricious attempt to keep it out of their community by classifying the proposed residence as, anything but a single family dwelling. 94. The final factor cited in the Resolution is nothing more than a laundry list of prejudicial mischaracterizations that bear no rational relation to the Esopus Zoning Code, the construction of the residence, or its intended use. Rather, the Respondent ZBA improperlyrelied on opposition stated by State Assemblyman Kevin Cahill and Ulster County Legislator Carl Belfiglio to the Petitioners’ Application. The opposition imposed by these elected officials do not relate to the use of the proposed residence, but only to the status of the intended occupants of the proposed residence. See Exhibit W at ex. 11, See Exhibit 3. These opposition statements show nothing more than a furtherance of the discriminatory nature of their constituents and an unfettered attempt by elected officials to perpetuate hatred and fear for the intended occupants’ disabilities. Also, these statements defy the express statements of Ulster County when accepting RSS’s request for proposals. Indeed, after identifying the site at 141 Prospect Street in the Town of Esopus after an approximate four year search, the Ulster County Local Government Unit noted that it “fully supports this project and is very pleased to see the project coming to fruition. See Exhibit B and Ex. C at pe.5. Assuch, these statements cannot constitute a rational basis for the February 16, 2016 ZBA Resolution. 95. Finally, yet another remarkable attempt by Respondents to justify their discriminatory intent took place during the vote on the February 16, 2016 ZBA Resolution, where ZBA Chairperson Kathy Kiernan recited to the Board that she conducted her own independent research, which was not part of the proceedings or record, to determine the definition of “family”. 96. — Without question, the current version of the Esopus Code that was enacted in 2012 provides no definition for the term “Family”. See Exhibit N. 97. Notwithstanding, Chairperson Kiernan recited a repealed definition of “family” from a prior Esopus Code for her assertion that the proposed residence is not a single familydwelling under the Town's Code. A copy of the respondent ZBA’s Addendum to its February 16, 2016 Resolution is annexed hereto as Exhibit X. 98. In this respect, in the previous version of the Town's Code, filed with the New York State Department of State on September 5, 1980, the Code defined family as: ‘One or more persons occupying a dwelling unit as a single-non-profit housekeeping unit. More than five persons, exclusive of domestic servants, not related by blood, marriage or adoption, shall not be considered to constitute a family. A copy of the prior Esopus Zoning Code adopted in September 198 is annexed hereto as Exhibit Y. 99. Later, that section of the Code was expressly repealed. Strictly construing the current Code against Respondents (because any requirements from the Code that a family be “no more than five persons not related by blood, marriage or adoption”, were intentionally deleted), Respondents must have intended for there to be no limit on the number of persons constituting a “family” and there to be no requirement that a family be related by blood, ‘marriage or adoption. Thus, notwithstanding Chairperson’s improper and unjustified reliance on a repealed version of the Code, when the Code is appropriately strictly construed against Respondents, the proposed residence falls squarely into the definition of a single family dwelling. See Exhibits N and Y. 100. Pursuant to the foregoing, none of the factors recited by Respondents in the February 16, 2016 ZBA Resolution refute the single family nature of the propose residence. 101. The respondent ZBA's affirmation of respondent Keefe’s second determination on August 10, 2015, namely, that the proposed RSS residence was a "convalescent home" even though no nursing care is to be provided there relied upon and was responsive to neighborhood opposition based upon conclusory and speculative attitudes towards peoplewith disabilities, and was based on considerations irrelevant to the usual standards and procedures used in determining whether a residence is a "single family dwelling" for the purpose of the Zoning Code, 102. The respondent ZBA's affirmation of respondent Keefe’s second determination ‘on August 10, 2015 that the proposed RSS residence was a "convalescent home" even though the residence will not be providing nursing care as required of a facility within that definition demonstrates its own prejudices against the people to reside in the proposed RSS residence because of their disability. Likewise, the ZBA's decision to ignore the finding of the New York State agency charged with licensing this residence (OASAS) that this is a residential structure further demonstrates the arbitrary and capricious nature of the ZBA’s determination. 103. Inaffirming the August 10, 2015 determination of respondent Building Inspector/ZEO Keefe, the Esopus ZBA completely disregarded material issues of law and fact. The ZBA determined that the residence at 141 Prospect Street was a “Nursing and Personal Care facility” despite the fact that there was absolutely no evidence in the record that any nursing care would be provided at the site, the residence was not going to be licensed as a skilled nursing facility under Medicaid, and the proposed use ran counter to each of the SIC Manual Classifications expressly referenced in the Town of Esopus Code. See Exhibits P,Q.R and S. 104, The ZBA further disregarded the fact that the 16 bed residence had been designated with a R-4 Occupancy Classification (residential structure) by the NYS Office of Alcoholism and Substance Abuse Services (OASAS) pursuant to Part 819, Chemical Dependence Residential Services. See Exhibit M.105. The ZBA also disregarded Section 310.1 of the 2010 Building Code of New York State (“BCNYS”) classified the proposed structure as a residential dwelling. See Exhibit M. 106. Moreover, the ZBA disregarded the fact that denial of the proposed single family residence at 141 Prospect Street for use by individuals recovering from alcohol and drug, dependency would be discriminatory. See Exhibit M. 107. Finally, the respondents” deviated from their usual procedure of judging whether a residence is a single family dwelling on its own merits, without regard to other residences, which is evidence of discrimination. 108. Finally, all of the foregoing was undertaken by Respondent “behind closed doors”, without a single word of public deliberation having occurred on the decision. Rather, the Respondent Zoning Board of Appeals began the “decisional phase” of their procedure by taking tums reading from a pre-prepared “findings statement” without ever uttering a single word in public about how they arrived at any of the findings, who proposed the findings, what conversation went into the wording of the findings or the rationale or reasoning behind making such findings, all in violation of the Open Meetings Law of the State of New York. (Public Officers Law, Art. 7). AS AND FOR A FIRST CAUSE OF ACTION 109, Petitioners repeat and reallege each and every allegation set forth in paragraphs “1” through “108” as if more fully set forth herein. 110. Respondent Town of Esopus Zoning Board of Appeals adopted a resolution on February 16, 2016 affirming the August 10, 2015 determination of Building Inspector/ZEO Keefe in violation with Town of Esopus Zoning Code §123-61, the Schedule of PermittedUses set forth within the Esopus Zoning Code and the SIC Manual classifications incorporated by reference in the Esopus Zoning Code. 111, The February 16, 2016 resolution of the Respondent Town of Esopus Zoning Board of Appeals is illegal, arbitrary and capricious, not adequately supported by the evidence in the record, violates the Town of Esopus Town Code, violates New York Town Law §267- (1), and is therefore null and void and must be vacated. 112. Accordingly, the Town of Esopus Zoning Board of Appeals’ purported denial of the petitioner's application was arbitrary, capricious, and contrary to law. 113, Pursuant to the foregoing, the petitioners respectfully demand judgment vacating, annulling and setting aside the Town of Esopus Zoning Board of Appeals" denial of petitioners’ application for an interpretation and directing that the Town of Esopus Zoning Board of Appeals issue an approval reversing the August 10, 2015 determination of Building Inspector/ZEO Keefe and declaring that the petitioners proposed use of 141 Prospect Street as residence for women recovering from alcoholism and/or substance abuse constitutes a one family residence under the Town of Esopus Zoning Code. AS AND FOR A SECOND CAUSE OF ACTION 114. Petitioners repeat and reallege each and every allegation set forth in paragraphs “1” through “113” as if more fully set forth herein. 115. The February 16, 2016 resolution of respondent Town of Esopus Zoning Board of Appeals in affirming the August 10, 2015 determination of Building Inspector/ZEO Timothy Keefe with respect to petitioners proposed construction of a residence at 141Prospect Street for women recovering from alcoholism and/or substance abuse is illegal and void in that such action violates the New York State Constitution and must be vacated. 116. Accordingly, the Town of Esopus Zoning Board of Appeals’ purported denial of the petitioner’s application was arbitrary, capricious, and contrary to law. 117, Pursuant to the foregoing, the petitioners respectfully demand judgment vacating, annulling and setting aside the Town of Esopus Zoning Board of Appeals* denial of petitioners’ application for an interpretation and directing that the Town of Esopus Zoning Board of Appeals issue an approval reversing the August 10, 2015 determination of Building Inspector/ZEO Keefe and declaring that the petitioners proposed use of 141 Prospect Street as residence for women recovering from alcoholism and/or substance abuse constitutes a one family residence under the Town of Esopus Zoning Code. AS AND FOR A THIRD CAUSE OF ACTION 118. Petitioners repeat and reallege each and every allegation set forth in paragraphs “1” through “117” as if more fully set forth herein. 119, The February 16, 2016 resolution of respondent Town of Esopus Zoning Board of Appeals in affirming the August 10, 2015 determination of Building Inspector/ZEO Timothy Keefe with respect to petitioners proposed construction of a residence at 141 Prospect Street for women recovering from alcoholism and/or substance abuse is illegal and void in that such action in discriminatory on its face and must be vacated. 120. Accordingly, the Town of Esopus Zoning Board of Appeals’ purported denial of the petitioners” application was arbitrary, capricious, and contrary to law.121. Pursuant to the foregoing, the petitioners respectfully demand judgment vacating, annulling and setting aside the Town of Esopus Zoning Board of Appeals’ denial of petitioners’ application for an interpretation and directing that the Town of Esopus Zoning Board of Appeals issue an approval reversing the August 10, 2015 determination of Building Inspector/ZEO Keefe and declaring that the petitioners proposed use of 141 Prospect Street as residence for women recovering from alcoholism and/or substance abuse constitutes a one family residence under the Town of Esopus Zoning Code. WHEREFORE, based upon the foregoing, petitioners respectfully demand judgment as. follows: ‘A. Onthe First, Second, and Third Causes of Action (a) pursuant to CPLR 7803(2) and 7803(3) reversing the February 16, 2016 Resolution of the Respondents in its entirety; and further (b) directing that the Town of Esopus Zoning Board of Appeals issue an approval reversing the August 10, 2015 determination of Building Inspector/ZEO Keefe and declaring that the petitioners proposed use of 141 Prospect Street as residence for women recovering from alcoholism and/or substance abuse constitutes a one family residence under the §123-61 of the Town of Esopus Zoning Code and the Schedule of Permitted Uses set forth in the Town of Esopus Zoning Code. B. Granting such other and further relief as the Court may deem just and proper.Dated: March 15, 2016 By: Freeman Howard, P.C. Paul M. Freeman, Esq. ‘Matthew J. Griesemer, Esq. Attorneys for Petitioner Residential Support Services, Inc. 441 East Allen Street Post Office Box 1328 Hudson, New York 12534 Phone: (518) 828-2021 Fax: (518) 828-2420VERIFICATION STATE OF NEW YORK) )ss: COUNTY OF COLUMBIA ) TIMOTHY J. FOGARTY, as Director of Facilities of Rehabilitation Support Services, Inc., being duly sworn, deposes and says: Lam the Director of Facilities of Rehabilitation Support Services, Inc., a petitioner in the instant proceeding, have read the annexed Petition and the same is true to my knowledge, except as to those matters therein which are stated to be alleged upon information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon the following: Conferences with my attorneys, review of information assembled throughout the course of this matter, my attendance at meetings of the Town of Esopus Zoning Board of Appeals and meetings with Town of Esopus officials, as well as my other personal involvement in the underlying facts and circumstances of the within proceeding/action. LY, bthy F Fo; Swor to before me this farch, 2016. ic gar to sommes bans Febuay 1, a