MAC

This case made it clear to us that if towns want a say in the siting of these facilities, they will have to fight for it in the legislature, not the courts.

In a much publicized and closely watched case, the Vermont Supreme Court upheld the Vermont Superior Court Environmental Division’s (Environmental Court's) decision granting preferential zoning review of a secure facility for housing justice-involved youth slated for development in the Town of Newbury*. 

This case concerns the Town of Newbury’s denial by its Development Review Board of an application to renovate a property owned by the Vermont Permanency Initiative (VPI) for the purposes of creating a secure facility for justice-involved youth. The facility would be leased to the Department for Children and Families (DCF) and operated by VPI. DCF and VPI (appellees) characterized the proposed use as a “group home” while the Town and a citizens advocacy group called Concerned4Newbury, Inc. (collectively the appellants) characterized it as a “juvenile detention facility.” 

The big question for our members before the Court was whether the proposed facility should be treated as a single-family residential use under 24 V.S.A. § 4412(1)(G). That 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). Because the undisputed facts showed that the planned facility would be licensed by the State and serve no more than six youths at a time, the resolution of this question came down to whether it qualified as (1) a “group home” that (2) served people with disabilities.  

The Court brushed away the comparisons to a detention facility on the grounds that “[t]he statute also does not preclude a group home from having security features. The key characteristics are the facts that the facility will be the sole and primary residence for the youth placed there.”

Lacking a statutory definition of “group home,” the Court turned to its dictionary meaning, “a residence for persons requiring care or supervision,” for guidance. The appellants advocated for a broader definition of “home” as “the place where one actually lives” in support of its argument that the proposed facility more so resembled a detention facility, with its bullet-proof windows, secure walls, video-camera monitoring, and twelve-foot high security fence than it did a residence befitting the surrounding community. However, the Court ruled that it “will not read additional requirements into the statute, particularly, where, as here, the purpose of the statute is to preclude local zoning boards from excluding group homes from residential areas.” The Court brushed away the comparisons to a detention facility on the grounds that “[t]he statute also does not preclude a group home from having security features. The key characteristics are the facts that the facility will be the sole and primary residence for the youth placed there.”   

In contrast with its first factor, the law is quite clear that it is intended for those facilities that serve those who “have a disability as defined in 9 V.S.A. § 4501.” 24 V.S.A. § 4412(1)(G). The appellees unsuccessfully argued, amongst other things, that the facility was designed to house justice-involved youth, but the Court reasoned that just because juveniles placed in the facility will also be justice-involved does not negate their disability.  

Having found that the appellees satisfied all the relevant statutory criteria, the Court found in their favor and affirmed the Environmental Division’s ruling.   

The outcome of this case, though not surprising, was still disappointing, as we’d much rather see a favorable outcome for the Town of Newbury and for all other members who may one day find themselves in the same position. However, the case did clarify for us that if towns want a say in the siting of these facilities then they’re going have to fight for it in the legislature, not the courts.  

The In re Vermont Permanency Initiative, Inc. Denial case is archived at https://www.vermontjudiciary.org/sites/default/files/documents/op22-324.pdf  

* As of the publishing of this article, the Town of Newbury has petitioned the Vermont Supreme Court to reconsider its ruling.