The order is opposed by the owner and operator of the facility, which, under an agreement with the state, is preparing to bring in patients as early as this month.
Thirty people would qualify for placement, including 20 from the Department of Correction, according to state officials.
Town officials say those individuals pose a risk to public safety and place an added burden on police, fire and ambulance services. A restraining order would maintain the status quo until the town's lawsuit for a permanent injunction goes to trial, Town Attorney Morris B. Borea said.
After it came to light in December, the state's plan to contract with the 95-bed facility, currently vacant, was greeted with near universal alarm by the town's officials and its nearly 20,000 residents. The lawsuit was filed.
A quiet courtroom, not beneath the Capitol dome, is where the matter likely will be decided. The emerging case touches on home rule — state vs. municipal powers — public safety and the interpretation of zoning regulations, specifically those governing non-conforming uses of property.
Although not a party to the lawsuit, the state is a major player in the drama. 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
The defendants in the lawsuit — iCare Management LLC and SecureCare Realty LLC — argue that they are acting on the state's behalf and enjoy the same freedom from suit the state does. The case should be dismissed "because the suit is barred by sovereign immunity and by the 'home rule' provisions'' of the state constitution, according to a dismissal motion filed by the defendants' attorney, Jonathan M. Starble.
"The project should be entitled to the same shield of sovereign immunity that would exist if the State had chosen to develop the nursing home on its own,'' he argued, in one of two long memorandums arguing against the issuance of the restraining order and for the suit's dismissal.
According to the defense court documents, iCare was selected by the DMHAS as its vendor last June. Its representatives learned over the summer of 2012 that the nursing home at 60 West St., previously licensed for 120 beds until closed by a court receiver, was up for sale.
A tour of the facility in August found it to be fully equipped, in turnkey condition. Its owners had invested $1.5 million in the facility in 2009-2010 following its acquisition from the Haven HealthCare bankruptcy.
After receiving the letter of agreement from the state, SecureCare Realty bought the property for $1.9 million in November 2012, and the business has incurred another $119,000 in acquisition and startup costs, according to an affidavit by Christopher Wright, president of iCare, and its associated entities SecureCare Realty and SecureCare Options.
In its complaint, the town argued that it was never the legislature's intent to open such nursing homes, housing potentially dangerous inmates and mental patients, within residential neighborhoods. It would pose a public safety risk to residents and visitors, including people using the town's Elm Ridge Park and Dinosaur State Park.
If the lawsuit survives the motion to dismiss, which will be argued later, the zoning issue will emerge front and center. The town claims that the former nursing home, first opened in 1967, operated as a prior, nonconforming use in a residential zone. When it shut down, that use ceased and any reopening would require local permitting.
The defendants say that the closing in 2011 was involuntary, vigorously opposed by the previous ownership in court and that the nonconforming use remains with the property. An email and subsequent letter from Kim Ricci, planning director and assistant zoning officer, states "[T]he use of the property as a convalescent home is a legal nonconforming use [and] will be allowed to continue," according to defense documents. Ricci declined comment.