In re Vt. Permanency Initiative, 21-ENV-00121

Case DateOctober 18, 2022
CourtSuperior Court of Vermont

Vermont Permanency Initiative, Inc. Denial

No. 21-ENV-00121

Superior Court of Vermont

October 18, 2022


Thomas G. Walsh, Judge

Titles: Motion for Summary Judgment; Motion Miscellaneous Appellants' Motion for Summary Judgment, Statement of Undisputed Material Facts + Memorandum of Law; Concerned4Newbury's Response to Motion for Summary Judgement and Cross Motion and Motion to Dismiss (Motion: 1; 2)

Filers: Jon T. Anderson; Nicholas AE Low

Filed Dates: February 2, 2022; June 15, 2022.


Vermont Permanency Initiative, Inc. (VPI) and the Vermont Agency of Human Services (AHS) Department for Children and Families (DCF) (collectively, the Appellants) appeal the Newbury Developmental Review Board's (DRB) November 12, 2021 decision denying VPI's application for the proposed project (Project).[1] Currently pending before the Court are Appellants' Motion for Summary Judgment and Concerned4Newbury's (C4N) Cross Motion for Partial Summary Judgment and Motion to Dismiss. Appellants' move for Summary Judgment with regards to Question 1, or in the alternative, move for Partial Summary Judgment with regards to Question 4. Both the Town of Newbury (Town) and C4N opposed the motion. In addition to its opposition, C4N filed a Cross-Motion for Partial Summary Judgment, which similarly concerns Question 4, as well as a motion to dismiss DCF for lack of standing.


In this proceeding, VPI is represented by Attorney Jon T. Anderson, AHS/DCF is represented by Attorney Ryan P. Kane and Melanie Kehne. C4N is represented by Attorneys Nicholas AE Low and Ronald A. Shems. The Town is represented by Attorney James W. Barlow.


On February 2, 2022, Appellants filed a Statement of Undisputed Material Facts within their Motion for Summary Judgment. The Town responded with their Statement of Disputed Facts on June 15, 2022. On June 16, 2022, C4N filed its response disputing Appellants' Statement of Undisputed Material Facts. C4N filed their Statement on Undisputed Material Facts, contained in their Motion for Summary Judgment. See C4N's Mot. for Summ. J. at 11-12.

The Town and C4N litigiously dispute the material facts. Many of C4N and the Town's disputes do not flow from the assertions contained in the statement itself, but rather from the statement's implication or identification of the Project as a "group home." The Court acknowledges that Town and C4N disputed whether the Project is a "group home" or a "juvenile detention facility" but otherwise accepts the ancillary undisputed factual assertions without accepting either party's legal conclusion regarding the Project's characterization. Several other disputes flow from the assertion that the Appellants' statement of an undisputed material fact is (1) not supported by admissible evidence, (2) vague, or (3) otherwise insufficient to establish the absence of a genuine dispute. The Court considered the arguments and the party's accompanying exhibits and made these determinations based on the evidence provided for the purposes of this summary judgment motion only, with the more substantive determinations getting explained in footnotes.

The Court sets out the following facts for the sole purpose of deciding the pending motions. What follows is not a list of the Court's factual findings. See Fritzeen v. Trudell Consulting Eng'rs, Inc., 170 Vt. 632, 633 (2000) ("It is not the function of the trial court to find facts on a motion for summary judgment").

1. The proposed Project is designed to and will be staffed to provide treatment, support and nurturance in a small residential setting. Appellants' Ex. 5, Brown Aff. ¶ 10
2. Group homes are commonly recognized as the best form of residences for most individuals with mental disabilities Appellants' Ex. 4, Sampson Aff. ¶ 4.
3. To best serve and protect the residents at the Project and to protect society, this particular Project will be a secure facility. Appellants' Ex. 5, Brown Aff. ¶ 10.
4. While the parties agree that the Project is not yet licensed, there is no dispute that if the Project obtains the necessary permits and gets the facility ready for operation, the Project will be licensed by the State of Vermont pursuant to the AHS/DCF Licensing Regulations for Residential Treatment Programs. Id. ¶ 7.
5. The Licensing Regulations for Residential Treatment Programs in Vermont (Licensing Regulations) define the licensing procedure. Appellants' Ex. 6, Licensing Regulations; Appellants' Ex. 5, Brown Aff. ¶ 7; see Suppl. Brown Aff. ¶ 1 (filed Apr. 20, 2022).
6. Since at least 1992, the Licensing Regulations have recognized that at least some licensed facilities will be secured or locked. Appellants' Ex. 6, Licensing Regulations at 42-43. The Regulations define "secure program" as "a buildings secure Residential Treatment Program which employs locked or unopened doors and windows to prevent residents from leaving the buildings, i.e., a detention program or hospital." Id. at 49.
7. The Licensing Regulations adopted in 1992 defined "Secure Care" as "a form of residential care [licensed by the regulations] which employs, on a regular basis, locked doors or any other physical means to prevent children in care from leaving the facility." Appellants' Ex. 7, at 5.
8. DCF anticipates the individuals who will be served at the facility to have disabilities or disorders (mental, social-emotional, developmental, etc.) or need assessments for such based on their behaviors and needs at time of presentation.[2] Appellants' Ex. 5, Brown Aff. ¶ 8.
9. The Project will serve a State-function-namely, the residential treatment of those justice-involved adolescents in need of secured services. Id. ¶ 5.
10. Most youths residing at the Project will have been formally diagnosed with a mental health disability and/or learning difficulties prior to being sent to the Project. Id. ¶ 11.[3]
11. Some youths may be placed at the Project with the belief that the youth has a mental health disability in order to receive assessment and diagnosis. Id.
12. Vermont sees a high percentage of youth involved with juvenile justice who also experience mental disorders, emotional disturbance, and learning challenges. Based on known diagnoses, and educational and clinical indicators, approximately 98 percent of Vermont youth placed at the Woodside Juvenile Rehabilitation Center from July 2018 through May 2021 met criteria for a disability as defined in 9 V.S.A. § 4501. Id. ¶ 9.[4]
13. After diagnosis, a youth will either remain in the program at the Project or be referred to the most appropriate treatment setting as soon as practicable. Any relocation would be so that a bed, and the associated and expensive resources, in the Project's treatment facility could be made available to youth who require these specialized services. Id. ¶¶ 12-13.
14. The Project satisfies all dimensional standards in the Newbury Zoning Regulations. Appellants' Ex. 1, Wasser Aff. ¶ 7.
15. There are no residential group homes, as defined by 24 V.S.A. § 4412(1)(G), located within 1,000 feet of the Project. jd. ¶ 17.
16. If the Project is permitted, the Project will be leased by DCF with an option to renew or purchase.[5] Appellants' Ex. 5, Brown Aff. ¶ 4. The lease has not yet been executed. C4N's Ex. A.
17. Appellants' Ex. 1, Attachments 1 and 2 contain a copy of the Application and the floor plans for the Project, respectively. Ex. 1, Wasser Aff., Attach. 1-2. The floor plan shows that the Project will have 6 private bedrooms for residents at the Project.
18. Residents will have access to shared areas, including places to relax, eat, study, and recreate both indoors and outdoors. Residents will not have access to the kitchen area, where cooking utensils and sharp items may be kept. Id. ¶¶ 13-15.
19. The Project will be implementing the best and most current practices for housing, programming, and addressing the needs of troubled adolescent youths with disabilities. Ex. 4. Sampson Aff. ¶ 5.
20. The Project will also be secured to protect non-residents. The Project includes well-secured windows (that look almost like regular windows), a room secured from residents where an employee will continuously monitor security, and a securely fenced area for: (1) outdoor recreation, (2) to minimize the possibility of an elopement during intake, and (3) to provide an area for kids to stay in the unlikely event the building must be evacuated. Security measures will also include infrared cameras designed to detect passage across the envelope of the building. Ex. 1, Wasser Aff. ¶ 16.
21. Adolescent youths will be placed at the Project for a short period as therapeutically indicated. The Project aims to provide the youths with intensive support so that they will soon be ready for less intense and less secure residential treatment options.[6] As youths are prepared for other residential treatment options and appropriate options are identified, the bed spaces at the Project will be used to serve other youths who need the specialized services the Project was designed to provide. Ex. 5, Brown Aff. ¶ 13.
22. The Vermont Administration and Legislature seek to apply best practices by making a place available for justice-involved children with disabilities in Vermont. Id. ¶ 14.
23. Presently, Vermont lacks such a facility for justice-involved children with disabilities. The Project has been identified as a critical need and is a high priority of Vermont's leadership. The Joint Child Protection Oversight Committee, including members of both the House and Senate Judiciary Committees, reviews progress on the Project at almost each meeting. Id.
24. In § E.316 of Act 154 of 2020, the Legislature

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