DERBY Proposed Findings

8/9/2019 DERBY Proposed Findings

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UNITED STATES DISTRICT COURTDISTRICT OF CONNECTICUT

VALLEY HOUSING LIMITED PARTNERSHIP : CIVIL ACTION (TLM)

and HOUSING OPERATIONSMANAGEMENT ENTERPRISE (HOME), Inc. : NO: 306CV01319

Plaintiffs

VS.

CITY OF DERBY and : March 10, 2010DAVID KOPJANSKI, Zoning EnforcementOfficer and Building Official, in his official capacity

Defendants

DEFENDANTS’ PROPOSED FINDINGS OF FACT

INTRODUCTION

This is a fair housing discrimination claim brought by the plaintiffs a non-profit organization, who

until shortly before the filing of the present lawsuit kept the true nature of their project in Derby a

closely guarded secret. Their secretive plan, hatched at the corporate level by Home Inc officials;

Brett Hill and Christopher Peterson was to keep Derby officials and residents in the dark about the

nature of their project until shortly before the pulling of the building permits so as not to provoke a

“NIMBY” reaction. The plan was to hire “well respected professionals”; Attorney Dominick Thomas

and Architect Joseph Migani to carry out the plan by arranging for private meetings with Derby

Case 3:06-cv-01319-TLM Document 160 Filed 03/10/10 Page 1 of 45



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officials shortly before applying for building permits Certificates of Zoning Compliance (CZC).

Plaintiff’s architect, Joseph Migani had prepared plans about the scope of the proposed renovation

work on and shared those plans with Derby’s Zoning Enforcement Official (ZEO) David Kopjanski

in winter of 2004. During that meeting, Mr. Kopjanski advised Mr. Migani that due to the scope of

the work and based upon Derby zoning regulations, the plaintiff would have to apply for a variance

if off-street parking could not be provided because the cost of the renovation exceeded 50% of

replacement cost new value (RCNV). At no time during that meeting or subsequent meetings

between Mr. Migani and Mr. Kopjanski did Mr. Migani ever advise Mr. Kopjanski that the plaintiff’s

properties might house persons with disabilities

The defendants never premised the denial on a change in use. It was based solely upon

Derby Zoning regulation Sec. 195-80C(3) and 195-20H which required developers planning on

performing renovations the cost of which would exceed 50% of the Replacement Cost New Value

(RCNV) provide the off-street parking on the property. These same regulations were cited to other

property owners contemplating major rehabilitation projects in Derby’s CDD. The plaintiffs’ claim of

pre-textual discrimination in denying their building permits is also belied by the fact that Mr.

Kopjanski met with Plaintiffs’ representatives after May 25, 2004 in an effort to see if off-street

parking could be provided on some of Plaintiffs’ properties. The City’s attempt to assist the plaintiffs

in obtaining zoning compliance continued past the ZBA’s denial of the appeal and request for

variance into the Staffieri administration.

Plaintiffs failed to request a reasonable accommodation under the FHA or ADA in early




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2004 or May 25, 2004 by requesting a variance to waive the off-street parking requirement. Such a

request would have served two purposes; it would have put Derby on specific notice of the nature

of plaintiffs’ project and would have mitigated plaintiffs’ damages. However, plaintiffs in keeping

with their corporate strategy of keeping the nature of the project under wraps until they secured a

building permit, elected to pursue the matter as a purely a zoning issue. Plaintiffs failed to apply for

a CZC so they could take an immediate appeal in May, 2004. Instead, they waited until February

28, 2005 to apply for the CZC so as to perfect an appeal to the ZBA.

While it is true that the defendant Kopjanski and members of the ZBA were aware that the

plaintiffs’ tenants may include persons who may require “support services” as provided by the

plaintiffs’ service provider, the Birmingham Group Health Services (BGHS), at no time during the

plaintiffs zoning application process did the plaintiffs indicate that the term; “support services” was

to be limited to those services provided to disabled persons as defined by the FHA or ADA. In fact,

BGHS provided support services to disabled and non-disabled persons alike. So, reference by the

plaintiffs to BGHS as their service provider would not put anyone on notice that the persons who

might be living in the plaintiffs’ properties were, in fact, disabled.

The mayor did not indicate to Mr. Kopjanski or the members of the ZBA that he opposed

the project because it was for persons with disabilities. The ZBA agreed with Mr. Kopjanski

interpretation of Derby regulations based upon its review of the basis for his opinion, and it own

research. As to the request for a zoning variance, this was denied because the plaintiffs did not

demonstrate a hardship. Plaintiffs’ request for a variance did not even address the parking issue.




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As to damages, plaintiffs claim that they were delayed until September, 2007 in obtaining

CHFA financing due to Derby’s discriminatory practices. The simple truth is that as this writing,

the plaintiffs have still not complied with all of CHFA’s funding requirements such that they are

entitled to financing. Presently, CHFA records indicate that plaintiff is not approved for financing.

DEFENDANTS’ PROPSED FINDING OF FACTS

1. Plaintiff, Valley Housing Limited Partnership is a Connecticut limited partnership.

2. Plaintiff, HOME Inc. is a non-profit developer, incorporated in the State of

Connecticut. HOME Inc. is the developer for Valley Housing Limited Partnership.

3. Plaintiffs, Valley Housing Limited Partnership and Plaintiff, HOME Inc. acted in a

joint venture to develop properties in Derby, Connecticut, located at 175-177 and 225-227 Caroline

St., and 16 Fourth St. in Derby, CT. Plaintiffs’ properties were located in the Central Density District

(CDD) of Derby. They have been referred to collectively as “the plaintiffs” by the parties in this

action. The three multi- family properties were purchased in February, 2004 by VHLP and have

been referred to collectilly as “the Derby properties” by the parties in this action. Valley Housing’s

plan was to relocate the residents of the three buildings and then renovate the interior of the

building, ending up with the same number of apartments (15).

4. Brett Hill has been the Executive Director of Home Inc since it was founded in 1987

and acted for the plaintiffs in a representative capacity in his dealings concerning the Derby

properties.




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5. Christopher Peterson been the Director of Real Estate Development for Home Inc.

At all times mentioned in plaintiffs’ complaint and acted for the plaintiffs in a representative capacity

in his dealings concerning the Derby properties.

6. Joseph Migani is the architect who was engaged by the plaintiffs to design their

renovation plans for the properties they purchased in Derby, Connecticut, located at 175-177 and

225-227 Caroline St., and 16 Fourth St. in Derby, CT and acted for the plaintiffs in a representative

capacity in his dealings concerning the Derby properties.

7. Attorney Dominick Thomas is the attorney who was engaged by the plaintiffs to

handle the zoning issue compliance issues for the properties they purchased in Derby,

Connecticut, located at 175-177 and 225-227 Caroline St., and 16 Fourth St. in Derby, CT and

acted for the plaintiffs in a representative capacity in his dealings concerning the Derby properties.

Attorney Thomas was long time practitioner in the area of zoning law and had an intimate

understanding as to the history of how other properties gained zoning approval in the City of Derby.

Attorney Thomas drafted a zone text change

8. The defendant David Kopjanski is the the City of Derby’s “ZONING OFFICER”

which as defined by the Charter is “ The administrative officer designated to administer the Zoning

Ordinance and issue zoning permits.”

9. Pursuant to § 195-138 A (1) the Zoning Officer has the authority to enforce Derby

zoning regulations and shall have such powers and authority as enumerated in Chapter 124 of

the Connecticut General Statutes, as amended.




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10. The defendant City of Derby is a Connecticut municipality organized and existing

under the laws of the State of Connecticut. Its powers are limited by C.G.S. § 7-148. It is not

empowered by the State of Connecticut to decide zoning appeals or to grant variances.

11. The Derby Zoning Board of Appeals was not named as a defendant in this action.

12. Only those municipalities that have zoning commissions are required to have a

Zoning Board of Appeals. Derby’s ZBS was empowered by law to hear appeals where it is alleged

that there is an error in any order, requirement or decision made by the official and to grant

variances in the application of the zoning bylaws, ordinances or regulations in harmony with their

general purpose and intent and with due consideration for conserving the public health, safety,

convenience, welfare and property value. The Board may reverse or affirm, wholly or partly, or may

modify the order, requirement or decision appealed from, and shall make such order, requirement

or decision as in its opinion ought to be made in the premises and shall have the powers of the

officer from whose order, requirements or decision the appeal was taken, provided that the

affirmative vote of four members shall be necessary to reverse or modify the order, requirement or

decision appealed from. The ZBA may grant variances from the strict application of these

regulations when, by reason of exceptional narrowness, shallowness, shape or substandard size of

specific parcels of property, the strict application of these regulations or amendments thereto would

result in unusual difficulty or unreasonable hardship upon the owner of said property; provided that

such relief or variance can be granted without substantial impairment of the intent, purpose and

integrity of these regulations. Uses not permitted as of right in any particular zoning district shall not




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be permitted in that particular zoning district by variance. Before granting a variance on the basis of

unusual difficulty or unreasonable hardship, there must be a finding by the Board of Appeals that

all of the following conditions exist

(1) That if the owner complied with the provisions of these regulations, he would not be

able to make any reasonable use of his property.

(2) That the difficulties or hardship are peculiar to the property in question, in contrast

with those of other properties in the same district.

(3) That the hardship was not the result of the applicant's own action.

(4) That the hardship is not merely financial or pecuniary.

16. Pursuant to the City of Derby’s Charter, Chapter 195, a “ZONING PERMIT”

otherwise referred to as a Certificate of Zoning Compliance (CZC) is a document signed by the

Zoning Officer, as required in the Zoning Ordinance, as a condition precedent to the

commencement of a use or the erection, construction, reconstruction, restoration, alteration,

conversion or installation of a structure or building, which acknowledges that such use, structure or

building complies with the provisions of the municipal zoning or authorized variance therefrom.

17. Pursuant to § 195-138 B (1) Zoning permits are required prior to the construction,

reconstruction, change of use, enlargement, extension, moving or structural alteration of any

building and prior to any occupancy or use or change in use of any land, building or other structure

or part thereof, an application for a zoning permit shall be submitted to the zoning officer. If the




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Zoning Officer determines that the proposed building or other structure or use is in compliance with

these regulations, he/she shall issue a zoning permit.

18. Derby Zoning regulation Sec. 195-80C(3) provides: To grant a building permit for

the reconstruction, structural alteration, restoration or repair of a structure used for a non-

conforming use, to an extent exceeding in aggregate 50% of the replacement cost of such

structure.

19. § 195-87(F) of Derby's zoning regulations provides that "A nonconforming building

or structure that is not devoted to a nonconforming use may be reconstructed, structurally altered,

restored or repaired in whole or in part, without the need of a variance, but must get a Zoning

Certificate of Compliance from the Zoning Officer." 1

1 Plaintiffs’ Statement of Fact # 22 mischaracterizes § 195-87(F) because it omits the important clause “but mustget a Zoning Certificate of Compliance from the Zoning Officer.” Plaintiffs represented that the defendant“admitted” that this statement of fact was accurate in their italics source of information section, when thedefendants never did.




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20. The current Derby zoning regulations, which are codified in the Derby code at

Chapter 195, were adopted in 2000; and designate the area where these subject properties are

located as the Center Design Development District zone (CDD).

21. The three properties at issue constitute nonconforming buildings, because the City

of Derby adopted new zoning regulations effective January 26,2000, that imposed density and off

street parking requirement in the CDD Zone which effectively rendered all multi-family housing

units in that area non-conforming.

22. Section 195-20(H), pertaining to the Center Design Development District (CDD)

Zone, provides: “Residential Density. Residential density may be approved up to 12 dwelling units

per acre, provided that all requirements and standards for the proposed residential use and for

other proposed uses are met. In cases where existing buildings are being renovated for reuse as

residential dwellings, densities higher than twelve (12) may be approved by the Commission. In

these instances, the allowable density shall not exceed the site’s ability to accommodate its own

on-site parking requirements or jeopardize the intent or other requirements of the zone. The

parking requirements shall be 1.5 spaces per dwelling unit unless fewer parking spaces are

allowed for the proposed use under Article 195-54-Parking Spaces, Number and Location.”

23. § 195-87(F) of Derby's zoning regulations provides that "A nonconforming building

or structure that is not devoted to a nonconforming use may be reconstructed, structurally altered,




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restored or repaired in whole or in part, without the need of a variance, but must get a Zoning

Certificate of Compliance from the Zoning Officer."

Changes in Derby zoning regulations affected properties in the CDD zone.

24. The lack of parking in the Caroline Street neighborhood was a major concern to City

planners and residents of the neighborhood alike.

25. One of the effects of the Derby zoning regulations in dispute in this case was to

require developers of properties that were going to expend a sum greater than 50% of replacement

cost new value in renovating existing properties in the CDD zone to provide off-street parking to

ameliorate the effects of the shortage of parking.

26. If developers of properties that were going to expend a sum greater than 50% of

replacement cost new value in renovating existing properties in the CDD zone could not provide

off-street parking they could apply to the Derby’s Zoning Board of Appeals (ZBA) requesting a

variance.

27. A variance could be granted by showing that the required number of parking spaces

required by Derby zoning requirements could be provided due to a hardship.

28. The Derby zoning regulations in dispute in this case were not a pre-text for

discrimination and applied to all developers regardless of who the intended residents of a particular

property might be.

29. That all properties in the CDD zone were subject to the same regulations with

respect to obtaining a CZC for undertaking renovations for re-use as residential structures.




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PLAINTIFFS’ ATTEMPTED TO HIDE THEIR INTENTIONS WITH RESPECT TO THE USEOF THEIR PROPERTY FROM MR. KOPJANSKI

30. Plaintiffs were aware prior to applying for CHFA financing that zoning approval

was a pre-condition of obtaining CHFA financing.

31. Plaintiffs recognized as early as December 20, 2002 that the three properties they

selected in Derby posed substantial development challenges including, a difficult zoning

environment.

32. Plaintiffs’ development model as of December 20, 2002 was to avoid the need for a

discretionary zoning permit. Plaintiffs assumed that zoning would be as a matter of right in Derby.

Plaintiffs recognized however, that this zoning assumption had to be confirmed by City officials

before moving forward with their project. Plaintiffs failed to confirm their assumption that zoning in

Derby was as a matter of right before purchasing the three properties in Derby by obtaining a legal

opinion and by consulting with Derby zoning officials. Plaintiffs’ relied

33. As of February, 2003, the plaintiffs “tenant profile” profile did not include persons

with disabilities, and the participants from BGHS, then known as Valley Mental Health Center, were

to be participants in the “umbrella program” who were victims of domestic violence. These persons

would not be considered “disabled” within the meaning of the FHA or ADA.

34. Prior to applying for zoning permits, plaintiffs adopted a corporate strategy to keep

the City of Derby and its residents in the dark about the nature of their project so as not to provoke

a “NIMBY” reaction. The plaintiffs plan was to hire a locally prominent attorney (Attorney Thomas)

and architect (Mr. Migani) to arrange a private meeting with Derby officials right before building




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officials were pulled so as not to stir up local opposition to their project.

35. As part of plaintiffs’ strategy to obtain zoning approval using a low-profile method,

plaintiffs’ architect, Joseph Migani, first approached Derby’s ZEO, David Kopjanski on an informal

basis with his cost estimate for renovating the plaintiffs’ three Derby properties during the early

winter months (probably in February). Mr. Migani was advised at the first meeting that his plans

would not allow for the issuance of a CZC because of § 195-8O ( C) (3) and that off street parking

would be required or the plaintiffs would need to seek a variance. Mr. Migani did not advise Mr.

Kopjanski at this first meeting that the plaintiffs’ properties would be used for persons with

disabilities, so Mr. Kopjanski would have no basis for taking any action based upon any animus

towards housing for disabled persons.

36. Plaintiffs’ architect, Joseph Migani, met with David Kopjanski again on or about

May 25, 2004 and presented Mr. Kopjanski with plaintiffs’ formal plans for renovating their three

properties for the purpose of obtaining a CZC. Prior to the meeting, Mr. Migani was instructed by

Chris Peterson to delete all references to “Home Inc” and “supportive housing” on the drawings to

be submitted to Mr. Kopjanski. This instruction was in keeping with plaintiff’s strategy of keeping

Derby officials in the dark about the nature of their project.

37. At the meeting of May 25, 2004 Mr. Migani never advised Mr. Kopjanski that the

plaintiffs’ properties may be used to house persons with disabilities. The plaintiffs application for a

CZC indicated that the plaintiffs’ Derby properties would retain the original use of their Derby

properties as; multi-family residential. The plaintiffs “statement of use” submitted with their




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application for a CZC did not indicate that the properties would house persons with disabilities.

38. Although Mr. Migani may have mentioned to Mr. Kopjanski that Birmingham Group

Health Services (BGHS) may be the support service provider for the project, this reference would

not mean that the plaintiffs’ properties would house persons with disabilities because BGHS

provides support services for disabled and non-disabled persons alike.

38. At the meeting of May 25, 2004 Mr. Migani was advised that a CZC could not be

issued because of Derby zoning regulation § 195-80( C) (3) and because Mr. Kopjanski had

determined that the plaintiffs’ properties were a non-conforming use. This determination had

nothing to do with the status of plaintiffs’ intended residents.

40. Plaintiffs were aware on or about May 25, 2004, after their architect, Joseph Migani,

met with David Kopjanski that a CZC could not be issued for their Derby properties within the CDD

without a formal review by the ZBA because the cost of improvements (renovations) for their

properties exceeded 50% of the assessed value of the property and no site plans were submitted

showing off-street parking.

41. Even though the plaintiffs claim in their sworn interrogatory responses of January 4,

2007 that Mr. Migani told Mr. Kopjanski as of May 25, 2004 that their properties would be used for

persons with disabilities, they never raised any concern to any Derby official that Mr. Kopjanski’s

actions were motivated by any animus towards housing for disabled persons.

42. Plaintiffs’ sworn Interrogatory response of January 4, 2007 averred that Mr. Migani

told Mr. Kopjanski in the winter 2004 meeting that the housing was for persons with disabilities.




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According to Mr. Migani’s sworn testimony, this was response is not true. Mr. Migani testified that

he and Mr. Kopjanski never discussed whether the housing was for people with special needs, it

was just “housing”.

43. After Mr. Migani was deposed about the issue on April 13, 2007 and after plaintiffs

learned of the mayor’s trip to CHFA in May 2004 to review CHFA documents which disclosed to

the Mayor the true nature of plaintiffs’ project, the plaintiffs’ changed their January 4, 2007 sworn

interrogatory responses about the date of Mr. Migani’s first meeting with Mr. Kopjanski from “

shortly after the purchase of the property in the winter of 2004” to May 25, 2004 in their amended

Interrogatory response of May 2, 2007.

44. Plaintiffs again swore under oath in their amended interrogatory response of May 2,

2007 that Mr. Migani advised Mr. Kopjanski that the housing was for persons with disabilities,

notwithstanding Mr. Migani’s sworn testimony of April 13, 2007 that the nature of the project was

never discussed.

45. The change of dates in plaintiffs “amended” Interrogatory responses as to the initial

meeting between Mr. Migani and Mr. Kopjanski was designed to fit plaintiffs’ conspiracy theory that

Mayor Garafalo “poisoned the well” prior to the meeting between Mr. Kopjanski and Mr. Migani on

May 25, 2004 with respect to the plaintiffs’ zoning application.

46. Plaintiffs’ change in their sworn interrogatory response as to in the initial meeting

dates between Mr. Migani and Mr. Kopjanski was to provide the Mayor as a backup source of

knowledge as to Mr. Kopjanski’s understanding as to the nature of plaintiffs’ project before Mr.




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Kopjanski advised the plaintiffs again on May 25, 2004 that off-street parking or a variance would

be required to get zoning approval..

47. Plaintiffs were aware on or about May 28, 2004, after their architect, Joseph

Migani, met with Derby’s ZEO, David Kopjanski on or about May 25, 2004 that a CZC could be

issued for their properties notwithstanding §195-80 C (3) if they provided a site plan based upon an

A-2 survey prepared by a licensed land surveyor that demonstrated that the required number of off-

street parking spaces would be provided.

48. Subsequent to Mr. Kopjanski’s denial of a CZC to plaintiffs on May 25, 2004, and

prior to their formal application for a CZC on February 28, 2005, the plaintiffs attempted to show

that parking could be provided on their two Caroline Street properties. However, plaintiffs never

submitted a site plan with their CZC applications for their Derby properties showing that the

properties had the required number of off street parking spaces per § 195-20H. During same time

period, the plaintiffs’ representatives presented various alternatives to the plans filed on May 28,

2004 that would allow them to obtain a CZC without requiring the specific variance required by

Derby zoning regulation § 195-80 ( C) ( 3) to include, providing off-street parking and a modification

of construction costs to reduce the RCNV number to below 50%. 2

49. Although the plaintiffs attempted to show that off street parking could be provided at

their Caroline Street properties, the plaintiffs never provided Mr. Kopjanski with an engineered site

plan showing that the required number of off street parking spaces could be provided at their

2 The plaintiffs’ modification of construction cost was an attempt to show that the RCNV could be less than 50% ifthe plaintiffsutilized original construction techniques and materials. Something, the plaintiffs never intended to do.




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Caroline Street, Derby properties.

50. Because the plaintiffs never provided Derby’s ZEO with a site plan that showed that

the required number of parking spaces was being furnished for their Derby properties, Mr.

Kopjanski concluded that the three Derby properties must remain classified as nonconforming uses

and advised them that the plaintiffs would require a variance under § 195-80 C (3).

51. During the attempts to gain zoning approval by supplying alternative plans after the

attempt to get a CZC on May 25, 2004, the plaintiff never represented to Mr. Kopjanski that they

believed he was withholding approval of the CZC because of the status of the intended residents of

their properties, nor did they advise the defendants of the plaintiff’s disabilities.

THE MAYOR DID NOT INFLUENCE MR. KOPJANSKI’s DECISION ON THEPLAINTIFFS ATTEMPT TO GET A CZC

52. When Mr. Migani first approached Mr. Kopjanski in the early months of the winter of

2004, and disclosed the scope of plaintiffs’ project and was advised that either off street parking or

a variance would be required, Mayor did not know of the nature of plaintiffs’ project.

53. When Mr. Migani first approached Mr. Kopjanski on the May 25, 2004, about

obtaining a CZC for plaintiffs’ project, the Mayor had not advised Mr. Kopjanski of the nature of

plaintiffs’ project

54. At no time prior to the plaintiffs’ formal application for a CZC on February 28, 2005,

did Mayor Garafalo advised David Kopjanski what he knew about plaintiffs’ project or how he felt

about plaintiffs’ project.

55. Prior to the plaintiffs’ application for a CZC on February 28, 2005, Mr. Kopjanski




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advised the Mayor that there may be a problem with the plaintiffs’ properties complying with Derby

zoning regulations and that the plaintiffs may have to go to the ZBA. Mayor Garfalo simply advised

Mr. Kopjanski to follow the zoning regulations.

56. Mr. Kopjanski and the Mayor never discussed rumors that the plaintiffs’ properties

might be used as a “halfway house”.

DEFENDANT KOPJANSKI HAD A RATIONALE, NON-DISCRIMINATORY BASIS TO

DENY PLAINTIFFS” APPLICATION FOR A CZC.

57. On or about February 28, 2005 when Mr. Kopjanski formally denied the plaintiffs’

request for a certificate of zoning compliance, the plaintiffs were advised that the reason for the

denial of the certificate was because the estimated cost of the projects exceeded 50% of the Tax

Assessor’s Replacement Cost New Values (hereinafter “RCNV”) for the buildings covered by the

plaintiffs’ request and that the properties would not meet the density and parking requirements of

Derby’s Regulation Section 195-20H therefore a specific variance per Section 195-80c (3) would

be required.

58. Zoning Enforcement Officer, David Kopjanski, determined that the plaintiffs’

properties were a non-conforming use because the applications submitted for a CZC demonstrated

that the properties failed to meet the density requirements of Derby zoning regulation § 195-20H

because they failed to satisfy the off-street parking requirement of 1.5 spaces per dwelling unit,

relying on the definition of “non-conforming use” as defined by Derby zoning regulation § 195-7:

NON-CONFORMING USE — A use or activity which was lawful prior to the adoption, revision or




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amendment of a zoning ordinance but which fails, by reason of such adoption, revision or

amendment, to conform to the present requirements of the zoning district.

59. Because Zoning Enforcement Officer, David Kopjanski, determined that the

plaintiffs’ properties were a non-conforming use and because the plaintiffs’ renovation plans

indicated that the cost of reconstruction, structural alteration, restoration or repair their structure

exceeded in aggregate, 50% of the replacement cost of such structure, that the plaintiffs needed to

apply the the ZBA for a variance in accordance with Section 195-80 (C)(3).

60. Plaintiffs’ intended use of their Derby properties to provide housing for persons with

mental illness, a history of substance abuse and persons with HIV/AIDS was not a factor under §

195-80 ( C) (3).

61. That at the time of plaintiffs’ presentation of their plans for renovation of their Derby

properties to David Kopjanski there was no legal precedent establishing the plaintiffs’ entitlement to

a CZC as a matter of right because the plaintiffs had not yet won their appeal of ZBA’s decision at

the State Superior Court level.

62. On February 28, 2005 the plaintiffs filed three provisional applications for

certificates of zoning compliance with Derby’s ZBA , appealing from Derby’s ZEO denial of the

CZC.

63. The explanation as provided by Derby’s ZEO, David Kopjanski, in the written

memorandum to the ZBA dated March 29, 2005 as to the basis for his denial of the CZC contained

the same explanation he provided to plaintiffs’ architect, Joseph Migani on or about May 28, 2004.




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64. At all times mentioned in plaintiffs’ complaint, David Kopjanski, was a zoning official

of high character that enforced Derby zoning regulations uniformly based upon his interpretation of

them without regard to the status of the applicant. Mr. Kopjanski had discretion, based upon his

professional judgment, as to whether site plan review was required with respect to a building permit

application based upon the scope of work presented in an application for a building permit

65. The position taken by David Kopjanski’ in denying the plaintiffs’ certificate of zoning

compliance was based solely upon his interpretation of Derby zoning regulations and the fact that

the plaintiffs’ application revealed that the cost of renovating the plaintiffs’ properties exceeded

50% of the replacement cost of the properties.

66. Prior to the plaintiffs’ service of their Complaint upon the defendant, David

Kopjanski, on or about August 24, 2006, the plaintiffs nor their representatives never specifically

advised David Kopjanski that the properties as described in their complaint were intended for use

by persons with mental or physical disabilities or were HIV positive.

67. The plaintiffs’ zoning application in Derby was not an application for a special use

permit such that the defendants would have been on notice that the plaintiffs’ intended to change

the use of their Derby properties from multi-family to a group home for unrelated individuals.

Plaintiffs’ Statement of Use filed with the application for CZC did not indicate that some of the

persons that would be living in plaintiffs’ properties were persons with disabilities as defined by the

FHA or ADA.

68. During the meeting referenced in Plaintiffs Proposed Findings of Fact #68, ,




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Corporation Counsel Richard Buturla never admitted to Attorney Thomas that Mr. Kopjanski’s

interpretation of Derby zoning regulations violated state law or made no sense

DAVID KOPJANSKI NOT FINAL DECISIOBN MAKER ON PLAINTIFFS” ZONINGAPPLICATION

69. Zoning Enforcement Officer, David Kopjanski, was not the final decision maker as

to the propriety of the issuance of the plaintiffs’ certificate of zoning compliance (hereinafter “CZC”)

based upon the applications for renovations submitted for their three Derby properties.

70. Derby’s ZEO issued a written memorandum dated March 29, 2005 explaining that

he denied the plaintiffs a CZC based upon his interpretation of § 195-20H.

71. Derby’s ZBA held a duly noticed public hearing on the three applications filed with

Derby’s ZBA on March 30, 2005 which was continued to April 21, 2005 and concluded on June 16,

2005.

PLAINTIFFS’ NEVER DISCLOSED TO DERBY OFFICIALS OR DERBY RESIDENTSTHAT SOME OF THEIR INTENDED RESIDENTS MAY BE DISABLED BY REASON OFMENTAL ILLNESS, SUBSTANCE ABUSE OR HIV/AIDS

72. At the January, 2005 neighborhood meeting, plaintiffs’ representative, Dominick

Thomas never disclosed that some of their intended residents may be disabled by reason of

mental illness, substance abuse or HIV/AIDS.

73. Plaintiffs never raised, as an issue at the ZBA level, that some of their intended

residents may be disabled by reason of mental il lness, substance abuse or HIV/AIDS.

74. The ZBA appeal was limited to the appeal of Kopjanski’s interpretation of Derby




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zoning regulations

75. Prior to the plaintiffs’ service of their Complaint upon the defendants on or about

August 24, 2006, the plaintiffs nor their representatives never specifically advised any member of

Derby’s Zoning Board of Appeals that the properties as described in their complaint were intended

for use by persons with mental or physical disabilities or were HIV positive.

76. Although the defendant Kopjanski and members of the ZBA were aware that the

plaintiffs’ tenants may include persons who may require “support services” as provided by the

plaintiffs’ service provider, the Birmingham Group Health Services (BGHS), at no time were these

individuals advised by the plaintiffs that these persons were disabled as defined by the FHA or

ADA. The mere mention of BGHS would not give notice that the intended residents would be

disabled because BGHS provides support services to disabled and non-disabled persons alike. 3

77. Mr. Thomas, plaintiffs’ attorney never defined “support services” to any Derby

official to mean that such services were for persons who were disabled under the FHA or ADA. In

fact, BGHS provided support services to disabled and non-disabled persons alike. So, reference to

BGHS as a service provider would not put anyone on notice that the person who might be living in

the plaintiffs’ properties was, in fact, disabled.

3 Plaintiffs Statement of Fact # 32 that “Defendant Kopjanski believed, by the time he first denied CZC for the properties on May

24, 2004 because he believed the properties were intended for occupancy by persons with disabilities is a grossmischaracterization. First, plaintiffs did not apply for a CZC until February 28, 2005. Second, the deposition testimony of Mr.Kopjanski is unequivocal that he did not know that some of the intended person may be disabled until after he was served withthe instant lawsuit. Similarly, Plaintiffs’ Statement of Fact # 33 has no factual basis. The testimony of Mr. Kopjanski and Mayor Garafalo is that they never discussed the project. Plaintiffs’ Statement of Fact # 36 does not establish that Mr. Kopjanski hadnotice that some of the intended residents may be disabled for reasons already explained. The mere mention of BGHS would notgive notice that the intended residents would be disabled because BGHS provides support services to disabled and non-disabledpersons alike.




22

78. In Mr. Thomas’ presentation to the ZBA on March 30, 2005, Attorney Thomas made

it clear that the projects were not going to be “halfway houses” and the persons who would be

living in the houses may be coming from the Umbrella program, a program for victims of domestic

violence. These individuals are not necessarily disabled. Mr. Thomas never mentioned that the

intended residents could be disabled.

PLAINTIFFS’ VARIANCE REQUEST DID NOT SEEK A WAIVER OF THE OFF-STREETPARKING REQUIREMENT AS A REASONABLE ACCOMMODATION

79. On April 27, 2005, the plaintiffs also filed applications for variances in response to

Derby’s ZEO’s decision to deny them a CZC., claiming as a hardship the inability to renovate the

three subject properties and bring them up to building code at a cost of less than 50% of

replacement cost new value.

80. The applications for variances were withdrawn at a public hearing on May 19, 2005

for failing to notify abutting land owners and re-submitted on May 20, 2005.

81. On June 16, 2005, the ZBA resumed its public hearings on the appeals from the

ZEO’s denial of the CZC and on the application for variances after which the ZBA denied plaintiffs’

appeals and the variance application.

82. The ZBA formally stated its reasons for its decisions and said reasons are

contained in the transcript of the June 16, 2005 hearing.

83. That at the time of plaintiffs’ prosecution of their appeal to the ZBA there was no

legal precedent establishing the plaintiffs’ entitlement to a CZC as a matter of right because the

plaintiffs had not yet won their appeal of ZBA’s decision at the State Superior Court level.




23

84. The plaintiffs never attempted to show the ZBA that complying with Derby’s zoning

regulations, § 195-80 ( C ) (3) by providing off-street parking would cause them an undue hardship.

The effect of Derby zoning regulation 195-80 C (3) was to require owners of properties who were

performing major renovations to their properties the cost of which exceeded 50% of RCNV to

provide off-street parking on their properties.

85. The plaintiffs could have provided the required number of off-street parking spaces

as required by Derby zoning regulations on their properties located at Caroline Street but elected to

contest David Kopjanski’s interpretation of Derby zoning regulations that bore on their application

for a CZC..

86. The plaintiffs could have requested a variance from the required number of parking

spaces per Derby zoning regulations for their Fourth Street property on the basis of undue

hardship due to lack of the necessary space that would be required to provide the required number

of parking spaces on that property.

87. The plaintiffs did not seek a variance from the parking requirements of Derby

regulation from Derby’s ZBA.

88. The plaintiffs’ application for a variance only asked that the plaintiff not be required

to comply with Derby’s zoning regulation § 195-80 ( C ) (3)..

DERBY HAD A LEGITIMATE GOVERNMENT INTEREST IN UPHOLDING ITS ZONINGREGULATIONS




24

Derby had a legitimate government interest in applying their zoning regulations uniformly

without regard to the status of the applicant.

89. The lack of adequate parking spaces to accommodate the number of drivers who

lived in the Caroline Street neighborhood where plaintiffs’ properties were located was a problem

for residents of the neighborhood when plaintiffs purchased their properties.

90. Derby had a legitimate government interest in increasing the number of off-street

parking spaces in the Caroline Street neighborhood so as to facilitate traffic flow which would

improve public safety and quality of life for residents of the Caroline street neighborhood where

plaintiffs’ properties were located.

91. Derby had a legitimate government interest in increasing in decreasing the density

of the number of off-street parking spaces in the Caroline Street neighborhood to improve public

safety and quality of life for residents of the Caroline street neighborhood where plaintiffs’

properties were located.

THE DESCRIPTION OF BGHS AS THE PLAINTIFFS’ SERVICE PROVIDER WOULDNOT PUT ANYONE ON NOTICE THAT THE PLAINTIFFS’ INTENDED RESIDENTS DISABLEDBY REASON OF MENTAL ILLNESS, SUBSTANCE ABUSE OR HIV/AIDS

92. At all times mentioned in plaintiffs’ complaint, the Birmingham Group provided

services to clients that included persons who were not disabled within the meaning of the Fair

Housing Act or the American with Disabilities Act.

93. At all times mentioned in plaintiffs’ complaint, the plaintiffs never defined the term

“supportive housing” to Derby officials or Derby residents so as to mean that it only applied to




25

persons who were disabled within the meaning of the Fair Housing Act or the American with

Disabilities Act.

94. The description of the intended residents of the plaintiffs’ properties “as clients of

the Birmingham Group who needed supportive housing” could include persons who were not

disabled within the meaning of the Fair Housing Act or the American with Disabilities Act because

the Birmingham Group also provided social services to persons who were not disabled within the

meaning of the Fair Housing Act or the American with Disabilities Act .

95. The description of the intended residents of the plaintiffs’ properties as clients of the

Birmingham Group who needed supportive housing would not necessarily advise David Kopjanski,

the public or members of Derby ZBA or Derby residents that the persons who would be residing in

plaintiff’s properties were disabled within the meaning of the Fair Housing Act or the American with

Disabilities Act.

96. No member of Derby’s ZBA were specifically aware that plaintiffs properties were

intended for use by persons with mental illness, a history of substance use or with HIV/AIDS prior

to their decision to deny the plaintiffs’ appeal or request for a zoning variance.

97. Former mayor Mark Garafalo never advised David Kopjanski or any member of

Derby’s Zoning Board of Appeals that the plaintiffs’ Derby properties were intended for use by

persons with mental illness, a history of substance use or with HIV/AIDS, pursuant to his policy not

to share information across boards or officials.

MAYOR GARAFALO DID NOT DIRECT OR INSTRUCT DERBY ZONING OFFICIALS TODENY PLAINTIFFS’ ZONING APPLICATION BECAUSE THE PLAINTIFFS’ INTENDED




26

RESIDENTS MAY BE DISABLED BY REASON OF MENTAL ILLNESS, SUBSTANCE ABUSEOR HIV/AIDS

98. Mark Garafalo did not direct or instruct David Kopjanski to deny the plaintiffs’

application for a certificate of zoning compliance because Mark Garafalo was opposed to the

plaintiffs’ project.

99. Mark Garafalo did not direct or instruct any member of the ZBA to deny the

plaintiffs’ appeal of David Kopjanski denial of the plaintiffs’ application for a certificate of zoning

compliance because Mark Garafalo was opposed to the plaintiffs’ project.

THE ZBA DID NOT DISCRIMINATE AGAINST THE PLAINTIFFS IN MAKING THEIRDECISIONS

100. The zoning regulations at issue in this case did not bear more heavily on the

plaintiffs than it did on any other applicant. During the ZBA hearings on plaintiffs’ zoning appeal

and request for a variance, no members of the ZBA made any statement indicating an animus

toward plaintiffs’ intended residents as persons with disabilities.

101. Derby’s ZBA did not deviate from normal procedures in passing on plaintiffs’ zoning

appeal or request for variance. Derby’s ZBA held duly noticed hearings on plaintiffs’ zoning appeal

and request for a variance and allowed for public comment at the hearings.

102. Derby’s ZBA did not fail to consider normal substantive criteria in passing on

plaintiffs’ zoning appeal or request for variance. It considered the zoning regulations at issue, heard

testimony from David Doades, the City’s former city-planner as to the basis for the zoning




27

regulation changes when Derby implemented its CDD zone, and considered the arguments for and

against upholding Mr. Kopjanski’s denial of the CZC.

103. Animus towards plaintiffs’ target population was not a factor in the position taken by

the ZBA in deciding plaintiffs’ zoning appeal and request for a variance. The issues before the

ZBA were limited to; whether David Kopjanski properly interpreted Derby zoning regulations and

whether plaintiffs’ variance request demonstrated a hardship. The vote to uphold Mr. Kopjanski’s

decision was based upon the merits of his rationale as expressed in his memorandum to the Board

and his comments at public hearing and the merits of the arguments made by plaintiffs’ attorney

Dominick Thomas. The decision on plaintiffs’ variance request was based upon the plaintiffs’

failure to show a hardship in complying with zoning regulations.

104. Prior to the ZBA hearings on plaintiffs’ zoning appeal and request for variance,

there was little if any public outcry in opposition to the project. There was no letter writing

campaigns, no rallies, no handbills posted and no letters to the editor of local newspapers.

105. The public participation in plaintiffs’ zoning hearings indicated that members of the

public were ill-informed about the nature of plaintiffs’ projects as evidenced by their comments at

ZBA hearings. The ZBA’ decision was not motivated by the political acts of the citizenry but rather

on presentation of the applicant, the basis for the zoning officers’ decision and the ZBA research

into and consideration of the issues presented by plaintiffs’ zoning appeal and variance request.

106. At the first ZBA hearing on the plaintiffs’ appeal, plaintiffs’ attorney, Dominick Thomas

in response to a newspaper article that characterized plaintiffs’ project as a “halfway house”, set




28

the record straight and advised the ZBA that the plaintiffs project would not be a “halfway house”

but rather “supportive housing” for people receiving services from Birmingham Group such as

family from the Umbrella Group (domestic violence program). Attorney Thomas did not describe

the project as one serving person with, mental il lness, dual diagnosed with substance abuse issues

or persons with HIV/AIDS.

107. ZBA members did not vote to uphold David Kopjanski’s decision to deny the

plaintiffs application for a certificate of zoning compliance based upon any comments made by the

former mayor Mark Garafalo that demonstrated an animus towards persons with disabilities. The

Mayor’s comments did not address the status of the intended residents. .

108. Mayor Garafalo would, from time to time, attend zoning hearings.

109. David Kopjanski never made any statements evidencing that he acted unfavorably

on the plaintiffs’ application for a certificate of zoning compliance because the plaintiffs’ properties

were intended for use by persons with mental il lness, a history of substance use or with HIV/AIDS.

110. Mark Garafalo nor any other Derby Official ever made any statements at any

hearing before Derby’s Zoning Board of Appeals on the plaintiffs’ appeal or request for a zoning

variance that they were opposed to plaintiffs’ project because it would house persons with mental

illness, a history of substance use or with HIV/AIDS.

111. No member of Derby’s Zoning Board of Appeals ever made any statements to the

effect that they acted unfavorably on the plaintiffs’ application for a certificate of zoning compliance

or application for a variance because the plaintiffs’ Derby properties were intended for use by




29

persons with mental illness, a history of substance use or with HIV/AIDS.

112. On June 14, 2005, during the pendency of the plaintiffs’ ZBA appeal and two days

before the ZBA reached its decision, plaintiffs’ representatives held a neighborhood meeting about

their project that was sparsely attended (only 5 neighbors attended) The purpose of the meeting

was to clear up rumors and misunderstandings about the project.

113. That prior to the initiation of the plaintiffs’ federal lawsuit, the plaintiffs never advised

any member of Derby’s ZBA that they consider their actions to be in violation of the Fair Housing

Act or the Americans with Disabilities Act.

114. That prior to the initiation of the plaintiffs’ federal lawsuit, the plaintiffs never advised

David Kopjanski that they consider his actions to be in violation of the Fair Housing Act or the

Americans with Disabilities Act.

115. That subsequent to ZBA’s denial of the plaintiffs’ application for a CZC, and while

their appeal was pending in Superior Court, the plaintiffs applied to the City of Derby to have its

properties approved as affordable housing. This application did not indicate that the properties

would be used to house persons with mental il lness, a history of drug abuse or with HIV/AIDS.

REASONABLE ACCOMMODATION

116. The zoning regulations at issue did not act as an impediment to gaining housing for

disabled persons and waiving the zoning requirements as an accommodation to the plaintiffs would

have provided them with a “greater” rather than an “equal” access to housing.

117. If the plaintiffs had presented a reasonable accommodation request to David




30

Kopjanski when they first approached him with their project plans and advised him that their

properties were for persons with disabilities, Mr. Kopjanski would have advised plaintiffs to include

in their appeal of his decision of his denial of the CZC or in their request for a variance that their

request for accommodation was related to off-street parking and that the people living in the

buildings have a mental or physical disability an don’t necessarily drive automobiles.

118. If plaintiffs believed that they were eligible to obtain a CZC due to the disabled

status of some of their residents, the plaintiffs could have requested a reasonable accommodation

from Derby Zoning Officials as early as May, 2004 or at the latest by February 28, 2005.

119. The plaintiffs never gave the City a chance to accommodate them through the

City’s established procedures before they appealed Mr. Kopjanski’s decision or requested a

variance in February and May 2005, respectively. Plaintiffs’ variance request cannot be fairly

characterized as reasonable accommodation because it did not request that Derby zoning officials

waive enforcement of a zoning regulation or otherwise make housing more accessible to

handicapped persons due to a disability. For example, the hardship listed in plaintiffs’ request for a

variance was not to waive the off-street parking requirements because parking wasn’t needed due

to their occupants’ handicapped status. The plaintiffs’ variance listed as a hardship “would not be

able to renovate the building, improve the structure and make code repairs. No increase in footprint

or units.” The plaintiffs did not cite the disabled status of some of their proposed residents as a

basis for their need to seek a variance from the requirements of any Derby zoning regulation

before Derby’s ZBA.




31

120. Plaintiffs letter to Derby’s Corporation Counsel dated July 13, 2006, was the first

time requested that the defendants grant them a reasonable accommodation pursuant to the Fair

Housing Act with respect to any applications they made to the City of Derby or to any of its officials

that related to any of the properties owned by the plaintiffs as described by the plaintiffs in their

complaint.

121. That the July 13, 2006 letter requesting a reasonable accommodation pursuant to

the Fair Housing Act never asked as reasonable accommodation a waiver as to any Derby zoning

regulation or advised Derby zoning officials what type of accommodation they were seeking.

122. The plaintiffs’ letter of July 13, 2006 requesting a reasonable accommodation

pursuant to the Fair Housing Act was never accompanied by any application and supporting

documents outlining why the plaintiffs believed they were entitled to a reasonable accommodation

or specifying what type of modification of rules or policies was being requested based upon a

particular disability.

123. Shortly prior to receiving the plaintiffs’ reasonable accommodation request,

Corporation Counsel Joseph Coppola and Mayor Stefarri met with plaintiffs in an effort to gain

them zoning compliance and indicated to the plaintiffs that if they could show off street parking at

the Caroline Street properties they could zoning compliance for that property. The new

administration also indicated it would work with plaintiffs to work out a deal where the plaintiffs

could use city owned property for parking for the Fourth Street property. This offer was declined.

At no time during this meeting did the plaintiffs mention that some of their intended residents might




32

be disabled.

THE DEFENDANTS DID NOT TREAT PLAINTIFFS” COMPARATORS DIFFERENTLYTHAN THE WAY THEY TREATED THE PLAINTIFFS

124. Pursuant to Derby’s regulations, the proper way to obtain an amendment of a

zoning regulation is through an application to the planning and zoning board.

125. The developer of the Lincoln School elderly housing project sought and received

from the Planning and Zoning Commission an amendment to the regulation governing off street

parking which lowered the number of off street parking spaces that would be required for the

approval of their project before they submitted their application to Derby’s ZEO, David Kopjanski.

126. The Lincoln School project did not require a variance because its parking met the

parking requirements of Article 7, Sec. 195-54 of the zoning which required one parking space per

housing unit per the state schedule for elderly housing. Parking for elderly units would be one

space per unit regardless of the zone the project was located in. The Lincoln School project’s site

plan as presented to Mr. Kpojanski in conjunction with the application for a CZC met zoning

requirements had previously been approved by the Planning and Zoning Commission. Because

Lincoln School satisfied the off-street parking requirements, the 50% RCNV rule would not be

applicable. Prior to Lincoln School’s application for a CZC, Derby zoning regulation for a non-

conforming properties, was modified

127. The site plan submitted by the developer of the Lincoln School elderly housing

project to Derby’s ZEO, David Kopjanski in connection with the application for a CZC had the

required number of parking spaces as approved by the Planning and Zoning Commission such that




33

the application satisfied the site density requirement for off street parking such that their application

qualified for a CZC.

128. The plaintiffs could have sought an amendment from the Planning and Zoning

Commission to modify the off- street parking requirements for their Derby properties prior to

applying for a CZC.

129. The plaintiffs did not seek an amendment from the Planning and Zoning

Commission to modify the off-street parking requirements for their Derby properties prior to

applying for a CZC or anytime thereafter

130. The owners of properties in Derby located at 81-85 Minerva Street and 161-163

Caroline Street provided Mr.Kopjanski renovation plans for these properties that demonstrated that

the estimated cost of renovating these properties did not exceed 50% of the Tax Assessor’s

Replacement Cost New Values.

131. Mr. Kopjanski had no evidence that renovation plans for these properties (81-85

Minerva Street and 161-163 Caroline Street) that demonstrated that the estimated cost of

renovating these properties did not exceed 50% of the Tax Assessor’s Replacement Cost New

Values were fraudulent.

132. Derby’s ZEO, David Kopjanski, relied upon the same Derby zoning regulations in

deciding whether to grant or deny the plaintiffs’ application for a CZC when he decided whether to

grant or deny on the applications from other property owners who owned non-conforming property

in Derby’s CDD who sought to do major renovations to their residential properties. 81-85 Minerva




34

Street and 161 Caroline Street, did require a site plan review, were entitled to a CZC and did not

require a variance because the scope of the work did not exceed 50% RCNV. The 81-85 Minerva

Street and 161 Caroline Street projects unlike plaintiffs’ Derby Projects, were not a “gut rehab”

projects because they did require replacement of interior partitions, floors or replacement of stairs

The scope of work for these projects was significantly less intensive than the scope of work

presented to Mr. Kopjanski on the project plans for plaintiffs Derby property plans, which indicated

that all floor/ceilings and interior partitions would be removed, leaving just the building envelope.

133. Rick Dunne was at the time of the plaintiff’s application for a certificate of zoning

compliance and for a long time prior there to, the Economic Development Coordinator for the City

of Derby and shared an office with the defendant, David Kopjanski. He considers Mr. Kopjanski to

be of high character and a zoning officer that goes by the book without regard to the status of the

applicant.

134. David Kopjanski was named in this case in his official capacity only. Mr. Kopjanski

was not the final decision maker on plaintiffs’ zoning application. Mr. Kopjanski is not an entity

under the FHA or ADA.

135. Derby’ s Zoning Board Appeals, nor its individual members were not named as

defendants in this action. Derby’s ZBA is a separate entity created by statute and empowered

pursuant to C.G.S. Sec 8-6 to decide zoning appeals and grant variances.




35

136. The City of Derby has no power to veto, modify or ratify ZBA decisions.

137. The plaintiffs claim in their Claims for Relief that the “defendants” acted improperly

towards them. The only defendants named in the case were David Kopjanski and the City

of Derby. The plaintiffs did not name the ZBA or its members as defendants or allege that

they were final policy makers of the City Derby so as to impose respondeat superior liability

on the City under Sec. 1983.

PLAINTIFFS’ TARGET TENANT POPULATION DID NOT HAVE TO INCLUDEPERSONS WITH DISABILITIES

138. Plaintiffs target tenant population did not have to include persons with disabilities.

Plaintiffs target population included Families with Special Needs. These families include one or

more adult and at least one dependent child whose ability to successfully maintain housing and

employment is limited by mental illness, substance abuse, HIV/AIDS and/or domestic violence.

Plaintiffs’ plan also included housing for individuals who were aging out of the State’s child welfare

system. Accordingly, under plaintiffs’ plan, their properties could be, but did not have to be

populated by persons defined as disabled by the FHA or ADA, such as “active’ substance abusers

and victims of domestic violence or young adults.

139. If Plaintiffs’ target tenant population includes alcoholics or substance abusers, their

addiction does not substantially limit one or more major life activities.




36

140. Plaintiffs’ target tenant population included active drug and/or alcohol users who are

not considered disabled under the FHA or ADA.

141. Plaintiffs tenant population did not have to include persons with disabilities for

plaintiffs to obtain CHFA financing. In fact, plaintiffs applied for zoning approval to the city of Derby

for their project as “affordable housing” which would not require the plaintiffs to house persons with

disabilities in their properties.

DAMAGES:

142. Derby’s actions did not cause the 39 month delay period plaintiffs’ claim (June,

2004- August, 2007). Plaintiff did not formally request a CZC until February, 2005, so at the

earliest, their damages period should commence on February 28, 2005.

143. Derby’s alleged actions were not the sole cause of a delay in commencing

rehabilitation of plaintiffs’ properties. CHFA documents record that as early as December 2003,

plaintiffs were deficient in meeting financing criteria for funding their project. From December 2003

until February 11, 2010, plaintiffs have failed to satisfy CHFA funding requirements such that they

could proceed with their project. During this period, plaintiffs received numerous correspondences

from CHFA indicating that their financing application was incomplete and there were numerous

issues with respect to the project that jeopardized their right to retain the reservation of funding.

For example, as of September 19, 2008, with respect to plaintiffs’ invitation to proceed under Next




37

Steps Round II issued on September 7, 2007, CHFA observed that the plaintiffs failed to provide,

on a timely basis, revised and updated construction and development costs and budgets and

insufficient support for operating expenses. CHFA also raised major concerns, including; that total

development costs exceeded projections, possible problems with structural integrity of the

buildings, possible inability to satisfy State accessibility requirements, and local parking

requirements and possible zoning issues with respect to apartment size/mix.

144. On December 2, 2008 Brett Hill confirmed that the expected closing date would

March 31, 2009. But subsequently, plaintiffs repeatedly asked for closing date closing date

extensions due to an inability to close because of incomplete building plans, problems with

contractors, and structural issues with the buildings. In December 2008, CHFA noted that the

plaintiff had allowed the Derby properties to deteriorate raising structural concerns with attendant

increased project costs.

145. Plaintiffs’ claim that increased project costs were due to Derby’s actions are

controverted by Brad Schide, a consultant who noted in October 28, 2008 that increased project

costs were due to severe blight of the subject properties, the need for substantial structural

framing, fire sprinklers, lack of ability to store construction materials on site

146. As recently as February 11, 2010, plaintiffs still could not obtain CHFA financing to

proceed with their renovation projects in Derby and Ansonia because plans and specifications for




38

the project were not finalized. Plaintiffs had not supplied an executed construction contract or the

building permit from Derby. Additionally, plaintiffs had not yet obtained a building permit from the

City of Ansonia because of fire code compliance issues, therefore they cannot proceed with

obtaining CHFA financing for their Derby/Ansonia projects.

147. Plaintiffs did not lose “promised” CHFA financing for rehabilitation in June 2004 due

to lack of Derby zoning approval because plaintiffs did not formally apply for Derby zoning approval

until February 28, 2005. (see Pltffs’ PFOF # 125) Moreover, plaintiffs’ CHFA financing approval

was predicated on other conditions in addition to zoning approval.

148. Plaintiffs were not delayed until in obtaining CHFA financing until September 2007,

solely due to a delay in obtaining Derby zoning approval because there were other conditions in

addition to zoning approval. Plaintiffs had a long history of not satisfying funding requirements in

timely manner.

149. Plaintiffs were not delayed 39 months in obtaining CHFA financing because; a)

there was no CZC denial until February 28, 2005, b) there were other funding requirements that

were not satisfied and c) they have still not satisfied CHFA requirement through no fault of the city

of Derby.

150. The plaintiffs would not have rehabilitated and acquired tenants for all of the

apartments by August 2006 or incurred expenses or losses because they would have had




39

financing and have completed all construction within two years. Even though the plaintiff’s

received CZC in February 2007 as of February 2010, three years later, they have not yet closed on

the loan or even begun to rehabilitate the property due to a myriad of factors un-related to any

action on the part of the city of Derby. Further, plaintiff could have continued to rent their

apartments at market rate. Instead, they elected to allow their properties to go vacant and

deteriorate.

151. Plaintiffs’ claim of damages of $839,165 is not caused by the “39 month” delay but

rather plaintiffs’ non-compliance with CHFA’s funding requirements including their delay in getting

for example; land surveys, appraisals, environmental studies and signed construction contracts.

152. Plaintiffs’ claim of increased construction cost of $159,419, increased construction

cost contingency fees cost of $12,993 and increased architects fees are not caused by the “39

month” delay but rather factors not considered in original estimates.

153. Plaintiffs never required a survey in 2004 because site plan review by planning and

zoning was not required because plaintiffs were not changing the original footprint of the building

nor providing for off-street parking for their three Derby properties. Surveyor retained in 2009 was

retained to address CHFA review comments of May 12, 2008.

154. Plaintiffs claim of the “39 month period of delay” of August , 2006 to October, 2009

causing the plaintiffs to incur $216,344 interest and $6,577 in fees is an arbitrary calculation of




40

damages based upon an arbitrary period with no relation to the period plaintiffs claim they were

delayed which is from June 2004 to August, 2007. Plaintiffs obtained their CZC in March, 2007

and would have been eligible for funding in September, 2007 had they complied with other CHFA

requirements. This they did not do. They caused delay in funding by not satisfying, in a timely

manner, CHFA funding requirements.

155. Plaintiffs claim of damages of legal fees totally $43,682 for handling the zoning

appeal could have been mitigated by requesting a reasonable accommodation in May, 2004 or

February, 2005 at the latest or by filing a lawsuit for injunctive relief. Instead, plaintiffs elected to

handle this case solely as a zoning matter, which caused the plaintiffs to incur this element of

damages.

156. Plaintiffs claim for $12,500 for an updated appraisal is not compensable because

the plaintiffs holding off the property past September, 2007 was not caused by any action of the

City of Derby.

157. Plaintiffs’ claim of $174,948 for additional net holding costs for the period of August,

2006 to October, 2009 is an arbitrary calculation of damages, based upon an arbitrary time period

that has no relation to the period plaintiffs claim they were delayed which is from June 2004 to

August, 2007. Further, plaintiffs’ delay in obtaining funding after September 2007 was of their own

making. In addition, the holding costs are unrelated to any actions on the part of Derby because




41

the plaintiff had to hold the property regardless. If the properties were allowed to go vacant utility

costs should not have been incurred. Additionally, plaintiff failed to mitigate this element of

damages by allowing their properties to go vacant and to deteriorate.

158. Plaintiffs’ claim of $70,309 costs to re-open apartments at 16 Fourth Street is in

unrelated to any actions on the part of Derby. At the time plaintiffs purchased this property it was

rented and producing rental income for the plaintiffs. It was plaintiffs’ decision to let this property

go vacant. Had the plaintiffs not made this decision many of the costs would not have been

incurred. Moreover, many of the costs are related to poor property management on the part of the

plaintiffs.

159. Plaintiffs’ claim of $49,620 staff costs is newly claimed element of damages seen

for the first time in Plaintiffs’ PFOF. Defendants asked for, and the plaintiffs were required to

produce a Statement of Damages. This element of damages was not included and as result

plaintiffs, should not be allowed to claim it at the time of trial.


causing the plaintiffs to incur $14,603 in “otherwise expected interest management fees” is an

arbitrary calculation of damages based upon an arbitrary period with no relation to the period

plaintiffs claim they were delayed which is from June 2004 to August, 2007. Plaintiffs’ own actions

or lack of action in prosecuting their CHFA application contributed to an increase in management




42

fee cost.


causing the plaintiffs to incur $ $56,764 in “otherwise unnecessary interest payments” is an

arbitrary calculation of damages based upon an arbitrary period with no relation to the period

plaintiffs claim they were delayed which is from June 2004 to August, 2007. Plaintiffs’ own actions

or lack of action in prosecuting their CHFA application contributed to an increase in interest

payments.

FAILURE TO MITIGATE DAMAGES

162. By failing to confirm that zoning as a matter of right was available in Derby before

purchasing their Derby properties, plaintiffs failed to mitigate damages.

163. By delaying filing their formal application for a CZC from May 25, 2004 to February

28, 2005, the plaintiffs failed to mitigate damages.

164. By failing to request a reasonable accommodation by seeking a variance of the off-

street parking requirement from the ZBA, plaintiffs failed to mitigate damages.

165. Plaintiffs based upon their beliefs that; 1) the Mayor opposed their project since

May, 2004, his vow to oppose the project and the Mayor’s public comments about the project and

plaintiffs’ belief that the defendants were in violation of the FHA and/or ADA by wrongfully

withholding issuance of the CZC because the Mayor and/or “the City” opposed the project for




43

discriminatory reasons, 4 the plaintiffs should have brought this case, seeking injunctive relief in

February, 2005 to require the defendants to issue all necessary permits to permit the plaintiffs to

perform the rehabilitation work at the three properties. By failing to bring the current claim in

February, 2005, seeking injunctive relief the plaintiffs failed to mitigate damages.

166. Plaintiffs failed to properly maintain their Derby properties while they were awaiting

final CHFA approval causing an increase in project costs.

4 See Plaintiffs’ PFOF for details as to their beliefs.




44

DEFENDANTS: CITY OF DERBY andDAVID KOPJANSKI

BY /S/John A. Blazi, Esq.Federal Bar No. ct01392786 Chase ParkwayWaterbury, CT 06708Telephone: (203) 596-0600

CERTIFICATION

This is to certify that a copy of the above has been e-mailed this 9th day of March

2010 to the following counsel of record by the court’s electronic filing system:

Amy Eppler-EpsteinShelley A. WhiteNew Haven Legal Assistance Assoc.425 State StreetNew Haven, CT 06510

David N. Rosen, Esq.

David Rosen Associates, P.C.400 Orange StreetNew Haven, Ct. 06511

/s/John A. Blazi, Esq.




45




Case 3:06-cv-01319-TLM Document 160-1 Filed 03/10/10 Page 1 of 11






























Documents

DERBY Proposed Findings