Judge Hears Arguments In Rocky Hill Nursing Home Case; Delays Decision

Crime, Law and JusticeLaws and LegislationReal EstateJustice SystemRocky Hill

A Superior Court judge listened to competing arguments for one hour Tuesday, then delayed action on the Town of Rocky Hill's request for a restraining order to prevent the transfer of state prison inmates and mental patients into a private nursing home at 60 West St.

"I'll get to it as soon as I can. I am not going to enter an order at this time,'' Judge Antonio C. Robaina said at the end of the Tuesday morning hearing, held in a small second-floor courtroom in the Superior Court building on Washington Street.

Town Attorney Morris B. Borea had asked for an immediate order to halt the 95-bed facility from opening. The order would remain in force until a trial could be held in the town's lawsuit seeking a permanent injunction against the property owner and the nursing home operator.

"At this point, the equities favor the town. We understand that they will do this right away if this is not granted today," Borea said.

Robaina didn't say when he will make his ruling, indicating he wanted to review the arguments raised by both sides.

Town officials maintain that the proposed facility is a thinly disguised prison where potentially dangerous felons will be kept under tight security. Allowing such a facility to open in a residential neighborhood would pose a safety risk to residents, unduly burden local emergency services and undermine local constitutional protections to regulate property, Borea argued.

Jonathan M. Starble, the attorney for iCare Management LLC and SecureCare Realty LLC — the nursing home operator and the property owner — argued that the court lacks legal authority to issue a restraining order before hearing the defendants' motion to dismiss the lawsuit.

That motion holds that the defendants, by acting as agents of the State of Connecticut, enjoy sovereign immunity, freeing them from suit and local interference.

"You can't put aside this motion to dismiss and grant a TRO,'' Starble argued.

The hearing highlighted arguments, detailed in lengthy briefs and supported by competing lists of exhibits, filed beforehand by the two sides. Disagreements over the facts of the dispute and applicable case law were pronounced, particularly about the nature of the proposed facility.

Is it a new type of correction facility, as the town claims, or a nursing home designed for patients who are not wanted elsewhere?

"This case was brought based on a lot of emotions and a lot of myths. My clients have no intention of operating a prison in Rocky Hill. Not only do they have no intention, they have no right to open a prison in Rocky Hill,'' Starble said.

"These are not going to be inmates and this is not going to be a prison,'' he said. "They are nursing home level of care people."

Beyond semantics, the two sides differ on whether the facility should be allowed to open under existing zoning restrictions.

The town claims that when the previous nursing home on the property closed in 2011, its permitted, nonconforming use ended. The previous owners conceded that the property was "functionally obsolete for its primary use as a nursing home,'' according to a town exhibit, and negotiated a reduction in the assessment from $5.9 to $1.9 million.

When SecureCare Realty purchased the property for $1.9 million in November, the conveyance was "subject to zoning restrictions,'' Borea said, and the proposed facility would be illegally nonconforming,

Starble countered, arguing his clients exercised "great diligence" in researching the property. The town zoning officer confirmed that the nonconforming use of the property remained valid, he said, "and my clients relied on that representation'' before acquiring the property. The defense exhibits include an e-mail and letter from town zoning official Kim Ricci that the defendants' say confirm their zoning interpretation.

Although not a party to the lawsuit, the State of Connecticut is a major player in the dispute. Since 2011, the Malloy administration has been looking for a way to move very sick and terminally ill patients out of its facilities and into private nursing homes to reduce long-term care costs. Three state agencies, led by the Department of Mental Health and Addiction Services, were involved in soliciting bids, selecting and negotiating with the vendor. A letter of agreement was sent in October, with a final contract between DMHAS and SecureCare Options LLC signed Jan. 30, 2013.

The state anticipates that the private facility, the first of its kind in the state, will qualify for $5.5 million annually in federal Medicaid reimbursements.

State officials have said they have 30 patients – including 20 from the Department of Correction, currently qualified for placement in the facility.

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