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Tusten officials weigh action; seek second legal opinion in Narrowsburg school matter

Tusten councilmember Tony Ritter, left, disagreed with the town attorney Jeffrey Clemente, right, about whether the town should file an amicus brief to support the lawsuit regarding the sale of the Narrowsburg School.

By Fritz Mayer
August 20, 2014

The Tusten town board voted three to two to get a second legal opinion about whether it is advisable for the town to file an amicus brief to support the lawsuit brought by Brendan and Kathy Weiden and 12 other residents against the board of the Sullivan West Central School District, and also to determine if the town had any claim against the school board.

The lawsuit claims the school district made several errors in the proposed sale of the Narrowsburg school. The school board agreed to sell the building to Joan Buto, who wants to open a drug rehab facility in it.

Councilmember Tony Ritter’s concern has been with the 14-acre lot on Kirk Road that went along with the purchase of the building. He said that was never listed on the Multiple Listing Service and never made available to the general public. He said early in 2013, the town board was told by the school district superintendent, Nancy Hackett, that the parcel was not for sale, and also said that the town would be notified if it came up for sale.

Town attorney Jeffrey Clemente said the town has no claim and should not file an amicus brief. He said, “We asked a question, ‘is it available?’ and the answer was ‘no.’ Now the fact that she said, ‘We’ll let you know when it is,’ is not a legally binding event.”

The board voted three to two to get a second opinion from the Albany law firm Whiteman Osterman & Hanna LLP, which has been retained for use by the zoning board of appeals and the planning board, should the drug and alcohol rehabilitation project at the school move beyond its current phase.

Code Enforcement Officer Gary Amerbach informed the board that he had been contacted by Buto’s attorney, who explained how the attorney felt the project could fit with the existing zoning regulations, and by an engineer with a slightly different plan.

But Amerbach said his opinion is that the proposed facility doesn’t fit in with town zoning, and Buto is free to appeal that decision to the zoning board of appeals or seek an interpretation or clarification on the matter from the New York Department of State in Albany. So far, there has been no application for a variance.

There was quite a bit of discussion about a letter written by Councilmember Ned Lang sent to planning board chairman Ed Jackson. Jackson had said that the planning process for the rehab facility could take up to a year, and expressed other views on the topic.

Lang wrote Jackson a letter and copied Buto and her attorney and said, “I strongly urge you to rethink your position on this matter to avert almost certain litigation and its potential cost.”

Discrimination against drug or alcohol rehab facilities

In a letter from Tusten councilmember Ned Lang to Ed Jackson, chairman of the planning board, Lang wrote, “The planning board and zoning board will not be reviewing the use of the property as federal law trumps local zoning, when property is used to assist disabled Americans.”

While there are three federal laws that prohibit states from discriminating against drug and alcohol rehabilitation facilities and group homes, and the people who might inhabit them, it does not appear to be the case that developers of these facilities can simply ignore local zoning codes.

Saul Spigel, a chief analyst for the Connecticut General Assembly, wrote in a 2009 report that there are three federal laws mean to prevent discrimination against people with disabilities, and that includes those addicted to substances such as alcohol: the Fair Housing Amendment Act (FHAA), the Americans with Disabilities Act and the Rehabilitation Act of 1973. But none of these laws is absolute.

Spigel writes, “none of these laws protect people who currently use illegal drugs. The FHAA also excludes (1) people convicted of illegally manufacturing or distributing drugs, even if they have a disability, and (2) people with disabilities who present a direct threat to other people or their property.”

He writes that under the FHAA, “It is unlawful to discriminate in the sale or rental of, or otherwise make unavailable or deny, a dwelling because of a disability of the buyer or renter, anyone associated with the buyer or renter, or anyone who may live in the dwelling. The act also requires governments to make ‘reasonable accommodations’ in rules, policies, practices, or services that are needed to provide equal housing opportunities for this population; refusal to do so is discrimination. Courts have defined ‘reasonable’ to mean a change that would not (1) fundamentally alter the nature of the rules, procedures, or neighborhood; (2) impose an undue financial or administrative burden on the government; or (3) undermine the legitimate purpose of the rule.”

A document on the website of the New York State Office of Alcohol and Substance Abuse Services, which licenses rehab facilities in the state, says, “All services and facilities are required to adhere to all applicable building codes, as appropriate, including but not limited to… any and all applicable local occupancy, use, building and zoning laws.”