In re Vt. Permanency Initiative
| Docket Number | 22-AP-324 |
| Decision Date | 21 December 2023 |
| Parties | In re Vermont Permanency Initiative, Inc. Denial Concerned4Newbury, Inc., Appellant and Town of Newbury, Cross-Appellant |
| Court | Vermont Supreme Court |
1
2023 VT 65
In re Vermont Permanency Initiative, Inc. Denial Concerned4Newbury, Inc., Appellant and Town of Newbury, Cross-Appellant
No. 22-AP-324
Supreme Court of Vermont
December 21, 2023
On Appeal from Superior Court, Environmental Division Thomas G. Walsh, J.
Nicholas A.E. Low and Ronald Shems of Tarrant, Gillies & Shems, Montpelier, for Appellant Concerned4Newbury, Inc.
Charity R. Clark, Attorney General, and Ryan P. Kane and Melanie Kehne, Assistant Attorneys General, Montpelier, for Appellee Vermont Department for Children and Families.
Jon T. Anderson, Burlington, for Appellee Vermont Permanency Initiative, Inc. James W. Barlow of James W. Barlow PLC, Danville, for Appellee/Cross-Appellant Town of Newbury. Rachel Seelig and Susan Garcia Nofi (Disability Law Project), and Rachel Batterson & Matthew M. Shagam (Housing Discrimination Law Project), Vermont Legal Aid, Inc., Burlington, for Amicus Curiae Vermont Legal Aid, Inc.
PRESENT: Reiber, C.J., Carroll, Cohen and Waples, JJ., and Morris, Supr. J. (Ret.), Specially Assigned
REIBER, C.J.
¶ 1. This appeal concerns a request for a zoning permit from the Town of Newbury by the Department for Children and Families (DCF) and the Vermont Permanency
Initiative, Inc. (VPI), to renovate a property owned by VPI for the purpose of creating a secure facility for housing justice-involved youth. The Environmental Division granted summary judgment to DCF and VPI, concluding that the undisputed facts demonstrated that the facility was entitled to preferential zoning review as "a group home" for "persons who have a disability" under 24 V.S.A. § 4412(1)(G). The Town and a community organization Concerned4Newbury (neighbors) appeal,[1] arguing that DCF lacked standing to appeal to the Environmental Division because it did not have a sufficient interest in the property and that the facility does not meet the statutory definition of a group home because it is a detention center not designed for treatment of those with a disability. We affirm.
I. Overview and Procedural History
¶ 2. VPI holds an existing permit to operate a residential treatment facility on property it owns in the Town. In July 2021, VPI filed a zoning application with the Town's Development Review Board (DRB) seeking to renovate the property to house juveniles at a higher level of security. The application indicated that the proposed facility would be leased to DCF, which would fund the renovations, and that VPI would enter into a contract with DCF to operate the facility. VPI sought an exemption from conditional-use review as "[a] residential care home or group home" under 24 V.S.A. § 4412(1)(G). The DRB concluded that the proposed facility was not a residential care home or group home within the meaning of § 4412. The DRB found the proposed renovations would require extensive physical changes to enhance the property's security, including
detention-grade windows, high-impact secure walls, video-camera monitoring with a central security control room, and a twelve-foot-high fence to surround the outdoor recreation area. The DRB determined these security enhancements conflicted with the "family-like or residential" setting typically found in group homes. The DRB concluded that the purpose was not to accommodate disabled youths, but to "provide a high-security detention facility for youths at risk for harm to themselves or presenting a risk to community safety." The DRB therefore denied VPI's application.[2]
¶ 3. VPI and DCF appealed to the Environmental Division, alleging several errors by the DRB. One question in the appeal to the Environmental Division was whether the facility met the definition of a group home under 24 V.S.A. § 4412(1)(G) and was therefore exempt from conditional-use review as a residential use. VPI and DCF moved for summary judgment, arguing that the undisputed facts demonstrated that the facility was a group home and therefore a permit should be granted as a matter of right. Neighbors opposed summary judgment and moved to dismiss DCF from the case for lack of standing. The Environmental Division resolved both motions in favor of DCF and VPI. The court concluded that DCF's prospective long-term lease was a sufficient interest in the property to provide standing to appeal under 24 V.S.A. § 4465(b)(5), and that the undisputed facts showed that the project was entitled to treatment as a residential use because it was a group home within the meaning of 24 V.S.A. § 4412(1)(G).
¶ 4. The Town and neighbors appeal. On appeal, they argue that DCF lacked standing to appeal the DRB decision to the Environmental Division. They also contend that summary
judgment was improperly granted to DCF and VPI because the undisputed facts do not show that the proposed facility will be a group home serving those with a disability.
II. Standing
¶ 5. We first address neighbors' argument regarding DCF's standing to appeal the DRB decision to the Environmental Division. Standing to appeal zoning decisions to the Environmental Division is governed by statute and limited to an "interested person, as defined in 24 V.S.A. § 4465." 10 V.S.A. § 8504(b)(1); see V.R.E.C.P. 5(d)(2) (outlining those with party status in appeal to Environmental Division). Section 4465(b)(5) defines an "interested person" as including "[a]ny department and administrative subdivision of this State owning property or any interest in property within a municipality." 24 V.S.A. § 4465(b)(5). In denying the motion to dismiss DCF below, the court relied on the facts that the facility will be licensed by the State, the facility will provide a state function, and VPI will enter a long-term lease with DCF, providing DCF with operational and ownership interest in the property. The court concluded that these interests amounted to "owning property or any interest in property" and therefore satisfied the interested-person standard.
¶ 6. On appeal, neighbors argue that DCF does not meet the statutory standard because DCF lacks any present ownership in the property. It is undisputed that VPI owns the property at issue and therefore has standing in this matter. Because VPI has adopted all the arguments raised by DCF, it is not necessary to the outcome of the appeal whether DCF also has standing, and we do not reach that question.
III. Summary Judgment
¶ 7. Neighbors next argue that the Environmental Division erred in granting summary judgment to VPI because the undisputed facts demonstrate that the facility does not meet the definition of group home and it will not serve people with disabilities.
¶ 8. This Court "review[s] a decision on a motion for summary judgment de novo, employing the same standard as the trial court," and, to prevail on such a motion where no fact is in dispute, a party must demonstrate "that it is entitled to judgment as a matter of law." Gordon v. Bd. of Civ. Auth. for Town of Morristown, 2006 VT 94, ¶ 4, 180 Vt. 299, 910 A.2d 836 (citing V.R.C.P. 56(c)(3)). "The nonmoving party will receive the benefit of all reasonable doubts and inferences." In re Mahar Conditional Use Permit, 2018 VT 20, ¶ 10, 206 Vt. 559, 183 A.3d 1136 (quotation omitted).
A. Background and Statutory Framework
¶ 9. The following facts are undisputed for purposes of summary judgment. VPI's property at issue is 278 acres and contains a residential building and outbuildings. The property is in the Town's conservation zone and, in 2013, VPI was granted conditional-use approval to operate a "school/residential treatment facility" there. In October 2020, the State's sole facility for the treatment of justice-involved youth closed. The State lacked a secure treatment facility in Vermont to place youth in the custody of DCF. Following a legislative directive, DCF submitted a plan to contract with VPI to renovate VPI's property and create a residential treatment facility for some of the justice-involved youth in DCF custody. The DCF Commissioner in his deposition testified that the facility would serve youth who had been diagnosed or believed to have a psychiatric disorder or mental-health disorder or behavioral disorder. The placement would be made based on a recommendation of DCF, taking into account the treatment needs of the youth
and their behaviors. Because a youth must be placed in the least-restrictive setting, the youth will be assessed and moved to a less-restrictive setting if appropriate. Placement of a youth does not depend on whether the youth has been charged with offenses; it is centered on the youth's presentation and behaviors.[3]
¶ 10. When VPI applied for a permit from the Town, it asserted that the facility was exempt from conditional-use review and should be treated as a single-family residential use under 24 V.S.A. § 4412(1)(G). The statute provides that "[a] residential care home or group home to be operated under State licensing or registration, serving not more than eight persons who have a disability as defined in 9 V.S.A. § 4501, . . . shall be considered by right to constitute a permitted single-family residential use of property." 24 V.S.A. § 4412(1)(G). VPI alleged that the facility met statutory requirements because it was a group home that will be operated under state licensing, serving not more than eight persons who have a disability.
B. Analysis
¶ 11. It is undisputed that juveniles requiring supervision will reside at the facility and that no more than six juveniles will be housed there. The two issues raised on appeal are whether the facility is a "group home" and whether the juveniles will "have a disability as defined in 9 V.S.A. § 4501." 24 V.S.A. § 4412(1)(G).
¶ 12. In construing these terms, we aim to implement the intent of the Legislature and do so by first looking at the plain meaning of the language. In re Bennington Sch., Inc., 2004 VT 6, ¶ 12, 176 Vt. 584, 845 A.2d 332. "The Court will assume the common and ordinary...
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