Plaintiff Safe Harbor Retreat, LLC proposed an “executive retreat” for persons suffering from alcoholism and other forms of substance abuse. Senior Building Inspector Thomas Preiato determined that Safe Harbor met the criteria of “functioning as a family unit” pursuant to sections 255–1–20 (Family) and 255–8–50 (Occupancy by a family). As a result of BI Preiato’s determination, Safe Harbor claims to have expended significant funds and effort to establish the Premises as a community residence. BI Preiato then reversed his position to Safe Harbor, informing Safe Harbor that it was operating an unauthorized “Semi–Public Facility, in a residential district,” and that, pursuant to Town Code, a “Special Permit” is required. Rather than seek a special permit from the Town’s Planning Board, Safe Harbor instead filed an “Application” to the Town’s ZBA to “appeal” BI Preiato’s determination, claiming that its residents continue to be treated as the functional equivalent of a family, apparently to relieve it from special permit and variance requirements of the Town Code.
According to the Town, Safe Harbor was required to obtain a “final decision” from the Town on its request to operate at the Premises, but failed to do so because it never applied for a special permit from the Town. The federal district court therefore found that because of Safe Harbor’s failure to seek a special permit, the Town has not rendered a final decision regarding Safe Harbor’s use of its Premises; nor has the Town had the opportunity to make an accommodation through the Town’s “established procedures used to adjust the neutral policy in question,” namely, special permit and variance procedures. Accordingly, the Court found that this action was not ripe, and dismissed it without prejudice.
Safe Harbor Retreat, LLC v Town of East Hampton, 2015 WL 918771 (EDNY 3/2/2015)