MAC

The town of Norwich settled with a resident over whether municipal groups (diversity, equity, & inclusion group; town and school budget groups; and finance group) formed to advise the selectboard and the town manager were in fact “public bodies” per the open meeting law (OML) and thus were subject to its requirements. At issue was where the line is between a “public body” subject to the OML and an informal group not subject to the OML. Under the Open Meeting Law, a “public body” is  

any board, council or commission of the State or one or more of its political subdivisions, any board, council, or commission of any agency, authority or instrumentality of the State or one or more of its political subdivisions, or any committee of any of the foregoing boards, councils, or commissions, except that public body does not include councils or similar groups established by the Governor for the sole purpose of advising the Governor with respect to policy. 1 V.S.A. § 310(4). 

In May 2023, the Windsor Division of the Vermont Superior Court denied the town’s motion for summary judgement, setting the stage for a trial in which the court could add some long-sought clarity on where exactly that line is. However, after spending roughly $100,000 on legal fees, the town of Norwich decided to settle by agreeing to direct all groups to comply with the OML rather than incurring further legal costs.  

This settlement, however, leaves open the question of whether gatherings of less than a quorum of a board are subject to the OML for the rest of the municipalities in the state. In its decision the superior court did note:   

The Town Budget and School Budget groups formed to divide the work of the Finance Committee; they were, by any measure, subcommittees of the Committee. As such, they fell squarely within the definition of “public body”: “any committee of any of the foregoing boards, councils, or commissions.” To conclude otherwise would make a mockery of the Open Meeting Law: any public body could avoid the obligations of the law by the simple artifice of dividing itself into subgroups. 

Because this decision was on a motion for summary judgement, it did not evaluate the numerous factors relevant to a determination of whether a specific subcommittee is in fact a “public body,” such as the number of members in the subcommittee or the officer or body from which the subcommittee was created. Instead, the decision evaluated the limited set of circumstances in the present case and whether those facts warranted dismissal. Additionally, this decision is binding only on the municipalities in Windsor County. Therefore, despite the rather pointed statement cited above, there remains considerable uncertainty regarding what exactly entails a subcommittee subject to the OML.   

This holding is in line with our guidance on the issue, which is that groups formed by another public body are clearly public bodies under the law. Beyond that, the law is less certain, but we continue to take the position that the informal gathering of less than a quorum of members to discuss the business of the public body does not constitute a “public body” under a plain reading of that law’s own definition of a public body.   

The outcome of this case, though not surprising, was still disappointing as we would much rather see a determinative outcome from the court regarding what constitutes a subcommittee subject to the OML. Because the court has not weighed in with a final decision on the matter, it will be incumbent on the legislature to provide some clarity on this issue.  Until then, or when a court does finally weigh in on the topic, our advice remains that all groups formed by another public body should hold public meetings in compliance with the Open Meeting Law. 

The Christopher Katucki v. Town of Norwich decision 

VTDigger article about this case: After Spending $100,000 Fighting Lawsuit, Norwich Agrees to Instruct Groups to Comply with Open Meeting Requirements  

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.