SPECIAL VENUE: SHELTER ISLAND SCHOOL AUDITORIUM
Members of ZBA present: Chairman Joanne Piccozzi, William Johnston III, Peter Ruig, Patricia Shillingburg. Doug Matz was not present.

            More than 350 residents, year-round and part time, poured into the Shelter Island school auditorium as ZBA Chairman Joanne Piccozzi attempted to open the hearings at 7:30 p.m. Finally she was able to call the meeting to order at 7:37, and dispense with the first three public hearings: Van der Eems was adjourned till November 24; Hoffman was held over until the environmental consultant could supply elevations for the neighbor-supported project; Carragher home renovation which exceeds 50% was held over; the Heights Property Owners Corporation
supports the project. 

            The fourth hearing concerned appeal by Hathaway Realty Corp., d.b.a. Ram’s Head Inn, from the Building Department’s determination that the proposed conversion from a pre-existing, non-conforming business in a residential neighborhood to a substance abuse rehabilitation facility, constitutes a change of use.  Town Attorney Laury Dowd noted that the Suffolk County Planning Commission notified the town that it would not interfere with local zoning regulations, but that if the ZBA determines that a variance is necessary for this project, then it must be submitted to the County Planning Commission for review. 

            Attorney Dowd then listed the letters which had been written to the ZBA on this matter, briefly summarizing each one. Ulrich Ambest & Miles Gerstein/Susan Davis wrote in support of the Building Department’s determination; Janet Hawkins said the Town is not geared for such a facility; Howard Snoweiss worried about the strain on the Town’s emergency and police services; Bill Persky mentioned the paparazzi who would be attracted to celebrity clients; Julie Rice echoed the concern about our limited resources; Jean McClintock wrote about the need for psychiatrists and other medical personnel at such a facility; Elizabeth and Bill Pedersen spoke of the need for a special license for such a facility; Linda Holmes pointed out the medical orientation of such a facility; Janet Roach, Gerald Mallow, Dick Meike, Karen Boltax, Steve Levy, Cindy & Leggett Flynn, and the Heights Property Owners Corporation all wrote in support of the Building Department position. 

            ZBA Chairwoman Piccozzi set the framework for this hearing: pursuant to Section 133-32 of the Town Code, the ZBA is designated to hear this matter. She reminded the audience that the issue to be considered is the appeal of the owners of the property from the Building Department’s determination that the proposed rehab facility represents a change in the non-conforming use of the premises. She said that whether the proposed change is desirable or consistent with the neighborhood is not an issue; that would be determined at a second hearing under Section 133-23 of the Town Code, if a special permit is applied for. At that point, she said, comments on the appropriateness of the use would be helpful. All speakers must focus just on the issue of change of use, and that only one person at a time may speak, limited to two minutes. It was noted that a court reporter is present, who can only record remarks of one person at a time. 

            Leading off the presentations was attorney John Bennett, representing the owners of the property. He introduced his co-counsel Mary Ann Wong, from another law firm which specializes in Federal laws regarding civil rights issues. Ms. Wong said that to rule against the lessee, Safe harbor Retreat, the ZBA would be in violation of the Americans With Disabilities Act, and Fair Housing/Rehabilitation Acts. Recovery from substance abuse is a protected condition under Federal laws, she alleged; therefore a negative decision by this Board would be presumptively discriminatory and therefore unlawful. (Her remarks were greeted with guffaws from the audience, which Chairman Piccozzi said must stop.)
            Mr. Bennett said the Building Department’s determination that the current pre-existing use of the premises does not include members of the public undergoing recovery from substance abuse is in error, because use prior to the adoption of our zoning code does not pertain to the occupant of the property, but to the use of the land. Only the people using the premises would change; the premises will continue to be “open to the public”, and is not a club. Rooms would be rented, as they are currently, and the facilities such as the restaurant, tennis, spa, and sailing would continue. He alleged that the lawsuit by the Ram Island Association against the Ram’s head Inn for over-use of the premises was adjudicated in favor of the Inn and
upheld by the Appellate Court, which said that extensive use of the premises had been common in the past. He cited an October 14, 1997 letter from the Town Building Department verifying that the Inn is a non-conforming pre-existing use. He stated that the facilities would
continue to be operated as they had been since 1921. He said the framework for this application was within a legal precedent saying that zoning statutes must be construed in favor of property owners, upholding Common Law that a person can do what he wants with
his property, as long as it doesn’t create a nuisance.

             He further pointed out that the Town zoning code does not clearly define or limit the use of a “hotel”. If the ZBA agrees with the Building Department, he cautioned, then it would be ruling against people because of who they are. He said the recent editorial in the Reporter may be correct: that our zoning code does need to be more specific.  He cited the intense public pressure on the ZBA, and reminded the members that the ZBA cannot legislate,but can only interpret the present code.  Chairman Piccozzi then asked Mr. Bennett: “Are you saying that no permits are needed here?” He answered that licensing would indeed be required. She then asked: then how is this not a change in use? Mr. Bennett answered that a Health Dept. permit would be needed for more “guests”, but that the use has not changed. Other permits, he posited, are “not relevant.” ZBA member Peter Ruig asked “What is a ‘post-detox’facility? Bennet replied: “I am not totally qualified to answer that question; I am not a health care provider.” However, he said that a detox unit has a physical component; once a person is removed from that type of care, he is then in need of rehabilitation. Mr. Ruig asked: “Does a doctor need to say this is a post-detoxification position the person is in?”  Mr. Bennet replied: “We will get a health care provider to answer you.”
            He then introduced Dr. Nicholas Capriani (sp?), a Certified Social Worker who teaches at Stony Brook University and trains CSWs. He defined a Rehab facility as a sub-acute treatment facility, involving intense counseling and therapy.  Chairman Piccozzi then asked if these “transient” people coming to the facility must be referred there for treatment. Mr. Bennett answered that the Shelter Island Code does not define “transient.” Chairman Pccozzi pressed: Then this facility is NOT open to the “general public”; thus it is reverse discrimination because if I don’t have an addiction I can’t come to your place.” (Her remark was greeted with applause.)  Mr. Bennett replied that “transient” refers to the length of the stay; there is an ambiguity in the definition.  Town attorney Dowd asked a series of questions about the staff of the proposed facility: Would there be a medical support staff?
A: There will always be a nurse on duty.
Q: The reason for that?
A: To “provide a service to the guests.”
Q: The name of the license required:
A: An 819 treatment license
Q: How many “guests” would be there at one time?
A: a maximum of 22
Chairman Piccozzi then noted: “In your letter of application to the ZBA you said the facility would be detox and post-detox.”
A: “consider [the letter] amended. I apologize for any confusion.”
Town attorney Dowd asked: Would medication be required at the facility?
A: yes
Q: would a doctor be present at the facility?
A: no
Q: would there be a nurse 24/7?
A: yes
Q: what other staff will be there?
A “I have no information on that”        Peter Ruig asked: What percentage of the “hotel” would be for the public?
A “the entire use will be open to the general public.”
Q: “I can’t imagine wanting to go there for a vacation.”
            ZBA member Patricia Shillingburg asked: “if it’s open to the general public, can I call and make a reservation for a room if all 22 rooms are not occupied?” 
            Chairman Piccozzi declared: “there is a bar on the premises. You can’t have detox people in a bar.”
            Peter Ruig noted: “the recidivism rate is quite high for this population. If only one nurse is on duty, isn’t that a strain? Can the CSW answer?” A: no
            Laury Dowd asked: Would the guests be driving to the facility? What about parking?”
A “I can’t answer that. It’s not germane.”

Q: Are the guests expected to stay for an assigned period, or can they come and go?
A: yes, they will be able to participate in activities off the premises.
            Peter Ruig: Are you familiar with Silver Hill in Connecticut? It is a rehab facility which has been operating for 25 years  Bennett: “I don’t know how other facilities are relevant.” He referred board members to Attachment E in the papers he handed each one at the beginning of the hearing.

            Patricia Shillingburg noted: “We haven’t had an opportunity to read what you’ve just handed us.”  Bennett: “I will get you an expanded narrative.”

            Building Dept. attorney Anthony Pasca was the next to speak. He is from the firm of Esseks & Angell, [which has been representing the Town Planning Board since 1972]. He noted that the Building Department’s decision is whether going from a hotel to a rehab center
constitutes a change of use. He stated that the Building Dept. did not decide what guests could stay at the facility; the Dept. stated no opinion as to whether the change is desirable; and did not offer what change of use would require permits, or whether the change would fit our building code. He then enumerated what points the Building Dept. considered in making its determination:
. Zoning code: how different types of use are classified. Commercial accommodations, rest homes —all have different classifications.
. The level of care there will be: a supervisory stay.
. Could you have a hotel and simultaneously offer a substance abuse service?
. Is this an accessory use? Is it customary?An accessory use must be subordinate to the main use. The proposed facility, he said, IS the main use, and it is not the customary use of a hotel.
. While it is true that zoning laws are construed to be in favor of the property owner, non-conforming uses are not. They are designed to limit the use of the premises.
. the building code defines this type of facility as a separate category of use.
. A hotel is a transient residential use. A post-detox facility is an institutional use, and has higher safety requirements.
. the Suffolk County Sanitary Code requires an application for a change of use. A drug rehabilitation center is a separate use according to the Health Dept.
. the State Mental Hygiene Law is highly regulated by the Office of Alcohol and Substance Abuse Services (OASAS). Its requirements are very detailed. No hotel is required to comply with its regulations, but a treatment facility is.  He then cited precedents set earlier by Town ZBA decisions: the Loinig application: in 1963 an inn was changed to a proprietary [elder care] home [Belle Crest]. In 1985 the use was changed back to an inn. In 2003 the owner asked the ZBA to approve that this is not a change of use. The ZBA said OK but imposed conditions, which shows that this is indeed a change of use. Ram’s Head wants to say that this is an as-of-right use, which you can’t do in a non-conforming facility. the Perlman application in 2003, changing from a hotel to a music school: the ZBA said it is a change of use and imposed conditions.
Mr.Pasca addressed Ms. Wong’s assertion that the Building Dept’s determination is discriminatory. The Building Dept. has not said that people with a certain background can’t stay at this place.
. According to OASAS, local zoning laws must be complied with. So the Building Dept, is sticking to a presumptively neutral code.  He closed his presentation by asserting that if you gathered 100 former ZBA officials and 100 other experts in this room, you would not be able to find any expert to say this is not a change of use.
            Chairman Piccozzi asked would the Building Dept., State and County laws
have to be complied with? A: yes; She then asked: can you mix populations under the OASAS regulations: A: not familiar with OASAS requirements; She then asked: What was the “unsolicited” letter in their file? Mr. Pasca replied that Mary Wilson had been asked by the applicant to put her opinion in writing, and she did so. Her letter was solicited.

            Frank Eisler, of the Finkelstein firm, representing the Ram Island Assn., spoke next. He said he joined in all the arguments being made by Mr. Pasca. The applicant, he said, was “A lot like Alice in Wonderland.” It belies all logic, he said, to say this use is not a change. The 2003 Loinig decision, he noted, was a decision by the ZBA that the use from a proprietary facility to an inn was, indeed, a change. When you go from a proprietary elder care facility to an inn, you
have made a change to a lower classification of use; so the ZBA’s precedent established in the Loenig decision requires you [the ZBA] to find this a change in use.  He then quoted the applicant’s own words in submitting a “PRELIMINARY CERTIFICATION” form to OASAS, describing the use as a facility for “in-patients”. “That doesn’t sound like a hotel”, he observed. He read further from the application, which described the facility as “A comprehensive in-patient treatment program at a private location.,” at which “anonymity” would be of key importance. Staffing to be required would be for 10 full time clinical personnel for 30 patients, who would be found qualified to be there. A psychiatrist and a medical doctor would be on call 24/7. Mr. Eisler noted “this is a screening process. There is no concierge. You must be qualified for this program. “If I’m not cleared, I can’t get in there.” Further staffing requirements listed in the application: I full time registered nurse; 1 nurse’s aide; 4 additional qualified personnel; 2 CSWs; 1 MSW (Master Social Worker’s degree); a dietician certified by the State. The applicant’s claim, he said, “Defies all logic.” The State Building Code requires more stringent criteria for this type of facility.

            Regarding the claims of Federal law compliance: “this is a smoke screen. No one is being discriminated against if a decision is made that the facility constitutes a change of use. “there is a lot of stuff, a lot of words and no substance” to the applicant’s claims. He further noted that the Ram Island Association’s lawsuit included a stipulation by the court that the Ram’s head Inn had to comply with. He then cited the Nyack vs. Daytop Village Case, in which the State Court of Appeals said this use does not pre-empt local zoning: a hotel was being changed to a rehab facility, and the State’s highest court upheld the Nyack ZBA.

            Mr. Bennett was then given the opportunity for rebuttal. He said in the Loinig case, the zoning code defines a nursing home, so it is “of no use here.” The Perlman case, he asserted, is also “of no use”. He said “We will comply with Building Dept. and other codes.” Laury Dowd then asked about the work sheet to OASES cited by Mr.Eisler. “I haven’t examined that document”, Mr. Bennett replied.

            Mr. Eisler then asked if other attorneys would have the opportunity for further comment, and Chairman Piccozzi affirmed that this hearing will be continued.

            Members of the audience were then (finally) given an opportunity to speak.

            Peter Ables, who teaches zoning and planning, said that the preserving of a non-conforming use was to protect that particular use, not a new one. The Americans with Disabilities Act accommodates disabled people. The Town cannot allow a residential change like this; the intent of the use and the number of employees constitutes a change. Sean McLean, president of the Shelter Is. Chamber of Commerce said the C of C supports the Building Dept. determination and urges the ZBA to come to the same conclusion.

            Tim Hogue, president of the Shelter Island Assn., said the SIA is concerned by this attempt to bypass the zoning ordinance. It is “Disingenuous and not believable”, he said. The ZBA must uphold the Building Department.  “To do otherwise would set a precedent.” Heurged the ZBA to rule in favor of the Town.

            Matt Bonora, a real estate broker for 40 years, noted “Currently, we enjoy the highest property value in the region. We don’t want to lose that. This issue puts that on the line.” When he takes clients past the Ram’s Head Inn, they always admire it. Lately, he has had to say that they are considering changing the use to a rehab facility.  The clients then ask him to turn the car around; they do not want to buy property near such a facility.

            Don Bindler said Mr. Bennett made the case of why this matter needs
to go before the ZBA. The argument of civil rights is “specious. The facility would constitute reverse discrimination against us, because we could not go there.”

            Marcel Zartcati : (sp?) Mr. Bennett said people at the facility would be free to come and go, but in his letter to the Reporter he said they would be transported by ambulance to the facility. This is nothing but a scam to enrich the applicant. It has nothing to do with helping people.

            Linda Holmes, who wrote a letter to the ZBA members on Aug. 19, said she had chaired the Town Drug Abuse Prevention Council for 10 years. During that time, she was appointed to the Planning Committee for our annual Statewide Substance Abuse conference, and became acquainted with several staff people at OASAS, as well as people in the treatment community, some of whom were setting up rehab facilities. She became familiar with the medical criteria involved in licensing such facilities, and stated that the proposed facility is definitely a change of use, for the many reasons that attorneys Pasca and Eisler had articulated. She urged the ZBA to concur with the Building Department’s determination.
            Martin Inbinder, (sp?) a psychiatrist, pointed out that people who come to a rehab facility do so under extreme duress, often as a last resort. “They are frightened and need a lot of help. Keep that in mind”, he told the ZBA” when you make your decision.”

            Chairman Piccozzi said the hearing will remain open until the next ZBA meeting, on September 24. She adjourned the session at 9:40 p.m.

Respectfully submitted,
Linda G. Holmes
for the League of Women Voters of Shelter Island