In re Appeal of Bennington School, Inc., 2004 VT 6 (Vt. 1/15/2004)

• Decision Date: 15 January 2004
• Docket Number: No. 2002-367, NOVEMBER TERM, 2003,2002-367, NOVEMBER TERM, 2003
• Parties: In re Appeal of Bennington School, Inc.
• Court: Vermont Supreme Court

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2004 VT 6 In re Appeal of Bennington School, Inc. No. 2002-367, NOVEMBER TERM, 2003 Supreme Court of Vermont January 15, 2004

APPEALED FROM: Environmental Court, DOCKET NO. 85-4-00, Trial Judge: Merideth Wright.

ENTRY ORDER In the above-entitled cause, the Clerk will enter:

¶ 1. Bennington School, Inc. appeals an environmental court decision in favor of the Town of Bennington finding that BSI's proposed use of a single-family home as a residence for students required a conditional use permit. Despite finding that BSI's proposed residential use met the statutory requirements of a permitted group home under § 4409(d), the environmental court ruled that it was the functional equivalent of a boarding school or college dorm and thus, was properly subject to the conditional use process. Because we find BSI's use of the residence under the first of two proposed scenarios operates as a permitted group home, we reverse. We decline to rule on the second proposed scenario, however, as doing so would require us to render an impermissible advisory opinion.

¶ 2. This case was presented to the environmental court on stipulated facts which can be summarized as follows. BSI is a state-licensed, residential-care facility for adolescent children with special educational needs, including learning disabilities, moderate intellectual and physical handicaps, and emotional and social disorders. The parties stipulated that all of BSI's students are developmentally disabled. As part of its mission, the school provides educational, mental health, and living skills services to all of its students.

¶ 3. BSI students reside on one of the two main campuses or in one of the school's small residences. The residences are designed to provide eligible students with a healthy, family-style living experience in which they can learn day-to-day living skills and develop bonds with small groups of students and staff before returning to their homes and communities. No more than six students live in these residences, which are staffed by two or three BSI employees during the day when the children are in the homes, and at least one awake staff member throughout the night.

¶ 4. The residences are located in the Bennington community on

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land zoned as Rural Residential or Village Residential under the Town's Bylaws. There are no other residential-care facilities within 1,000 feet of any of BSI's residences.

¶ 5. Some of the typical home-owner functions at the residences are performed by BSI staff such as maintaining the property and grounds around the residences. Although the residences have functioning kitchens, most of the meals are prepared on the main campus and delivered to the residences by van each day.

¶ 6. This dispute initially arose when BSI tried to purchase a single-family home to use as an additional residence. In connection with the transaction, BSI applied to Bennington's Zoning Board of Adjustment for a permit. Relying on 24 V.S.A. § 4409(d), which prohibits municipalities from excluding certain residential facilities and group homes from residential areas, BSI argued that it was entitled to a single-family residence permit. The ZBA disagreed, concluding that BSI's proposed residence was not a permitted group home and therefore required a conditional use permit. BSI appealed to the environmental court.¹

¶ 7. During the pendency of the appeal before the environmental court, the owner of the single-family residence at issue sold his home to another buyer. The environmental court agreed to hear the appeal, however, once it determined that the case was not moot because, under the standard established in Doria v. Univ. of Vt., 156 Vt. 114, 118, 589 A.2d 317, 319 (1991), the question was capable of repetition, yet evading review. This issue was not appealed to this Court. We accept the environmental court's conclusion and find the case is not moot on the facts presented.

¶ 8. On cross-motions for summary judgment, BSI proposed opening two different types of residences and asked the environmental court to evaluate whether they would be considered permitted single-family residences under 24 V.S.A. § 4409(d) or subject to conditional use review. The first scenario depicts current operations at BSI's existing residences. There, students leave the residences in a van to go to school on the main campus each weekday. While on campus, they attend classes and group and individual counseling sessions. The children have lunch at school and participate in after-school recreation and extra-curricular activities on campus or in the community. Each evening, students return to their residences for dinner, homework, chores, and social time. Students do not attend class on campus on weekends, but maintain similar schedules with respect to extra-curricular activities. Besides evening homework and the occasional tutoring from BSI staff, however, no educational instruction is provided in the residences. Nor does BSI staff provide routine clinical counseling in the residences except in the infrequent event a staff member needs to meet with a child or with the residents in a group to address specific issues.

¶ 9. The second scenario describes BSI's proposed alternative use of its residences. In this hypothetical situation, BSI students would to go class and attend counseling sessions in rooms within the residences. Teachers and clinicians would come to the house each day to provide these services, eliminating the need for any additional adult supervision during the day. The students would still go to the campus to participate in recreational and extra-curricular activities, but they would receive all of their...