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In re Confluence Behavioral Health, LLC

Supreme Court of Vermont

December 8, 2017

In re Confluence Behavioral Health, LLC Conditional Use to Operate a Therapeutic Community Residence Program (Jason Albert, et al., Appellants)

         On Appeal from Superior Court, Environmental Division Thomas S. Durkin, J.

          Ronald A. Shems and Abaigeal C. O'Brien, Law Clerk (On the Brief) of Diamond & Robinson, P.C., Montpelier, for Appellants.

          Nathan H. Stearns of Hershenson Carter Scott & McGee, P.C., Norwich, for Appellee.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          EATON, J.

         ¶ 1. The Environmental Division approved the issuance of a conditional- use permit for Confluence Behavioral Health, LLC's proposed community therapeutic residence in Thetford. A group of neighbors appeal the decision. Neighbors contend that the Environmental Division improperly concluded that Confluence's therapeutic community residence (the Project) was a health care facility, and thus was an allowed conditional use under the Thetford zoning ordinance. Neighbors also assert that the Project's residential use requires separate permitting and that it impermissibly establishes a nonconforming use. We affirm.

         ¶ 2. On January 19, 2016, Confluence Behavioral Health, LLC received conditional-use and site-plan approval from the Thetford Development Review Board (DRB) to operate a therapeutic community residence on Gove Hill Road in Thetford, Vermont. The property is approximately 125 acres, largely consisting of open, wooded areas, and is located in Thetford's Rural Residential zoning district. Under Article II, Section 2.01 of the Thetford Zoning Bylaws, the Rural Residential district is intended to "maintain an area of low average density that is compatible with clusters of high-density, remaining primarily a district of open space, farms, residences, and woodlands, with scattered commercial uses that are either home-based or dependent on natural resources." Under the Bylaws, health care facilities are allowed as conditional uses in Thetford's Rural Residential areas. However, the term "health care facility" is not defined in the zoning ordinance, setting the stage for the issue at hand.

         ¶ 3. The Gove Hill Road property includes several existing structures, all of which were used by the property's former owners, the American Baptist Churches of Vermont and New Hampshire. The Church used the property year-round (between 250 and 275 days per year) to host therapeutic retreats, conferences, and events for various church-related and secular groups, recovery programs and mental-health retreats, older teen camping trips, horseback riding camps, and summer camps for inner city youth. Retreats hosted up to sixty participants plus operational staff.

         ¶ 4. Confluence plans to house its new Project on the Gove Hill Road property. The Project, licensed by the Vermont Department of Disabilities, Aging and Independent Living (DAIL), is a short-term wilderness therapy program designed to treat young adult males (ages eighteen to twenty-eight years old). The program combines clinical therapeutic services with adventure-based wilderness therapy and agrarian living to help clients address mental-health diagnoses, as well as emotional, behavioral, and relational challenges. The treatment is interdisciplinary and supported by a team of professional providers. A Vermont licensed mental-health therapist oversees the therapeutic program and acts as the bridge between the experiential components and deeper clinical work. Individual, group, family, and experiential therapy sessions are interspersed throughout each week.

         ¶ 5. The Project involves an inpatient treatment component that takes place on-site. All therapy sessions with licensed practitioners will occur on the property; patients will live in together in groups and participate in the responsibilities of communal, agrarian living; and, while treatment will occur both on and off the property site, patients will reside on the property under Confluence's care for an average of nine to twelve weeks. The minimum stay in the program will be eight weeks. Confluence anticipates hosting up to forty-eight patients and thirty-seven staff to stay on the property at any one time to participate in the program. Based on the Project description and facts surrounding property use outlined above, the Development Review Board (DRB) issued the conditional-use and site-plan approval in dispute here.

         ¶ 6. In its Conditional Use Review Findings and Decision, the DRB approved Confluence's Project as a "health care facility" pursuant to Table 2.1 of the Zoning Bylaws. The DRB explained: "Under 6.06 of the Zoning Bylaws, all Conditional Use applications . . . are subject to Site Plan review procedures, criteria, and standards and are automatically incorporated here, in a single conditional use review." In its review, the DRB evaluated the Project for compliance with multiple sections of the Thetford Zoning Bylaws-vehicular circulation and parking; landscaping, building design, and lighting; noise, odors, smoke, dust, noxious gases, and air pollution; fire and public safety; waste and underground utilities; and compliance with Thetford's Rural Residential district standards and the "character of the area." The DRB found that that the "intensity of the proposed use is consistent with, and possibly less intensive than, the intensity of the previous use of the property as a center for therapeutic retreats, " and that the "[P]roject complies with all Town ordinances, bylaws and regulations currently in effect." Regarding the Rural Residential district restrictions, the DRB determined: "The [P]roject is in compliance with standards addressing the impact of the use on the community at large, adjacent properties, and the neighborhood and zoning district . . . the proposed [P]roject will maintain the existing low-density development of the property consistent with the historic use of the property and the character of the area . . . the proposed use will not have an undue adverse effect on the character of the area." Subject to several conditions-such as prohibiting Confluence from accepting applicants with violent or sexual criminal histories, restricting the use of electronic amplification and outdoor fires, and limiting project modifications and expansions-the DRB approved the Project.

         ¶ 7. A group of Project neighbors appealed the DRB's decision to the Environmental Division. Neighbors and Confluence filed cross motions for summary judgment, primarily disputing whether the Project was properly permitted as a "health care facility" for the purposes of the Bylaws, or whether the Project is a residential facility that should not be allowed in Thetford's Rural Residential district. Neighbors also claimed that the Project impermissibly reestablished the Church's abandoned nonconforming use of the property for events and retreats. In July 2016, the parties stipulated that the Church's nonconforming use had been abandoned and that Confluence could not receive a permit on the basis that it may continue a nonconforming use.

         ¶ 8. On January 23, 2017, the Environmental Division issued its decision that the Project was a "health care facility." In doing so, the Environmental Division relied on its interpretation of the Zoning Bylaws, permitting of the project by DAIL, and extrinsic sources defining and applying "health care facility" in various contexts. The Environmental Division also determined that any ambiguity should be resolved in favor of allowing the Project. Neighbors appealed.

         ¶ 9. On appeal, neighbors contend that the proposed use is not a "health care facility" and that it is more akin to a community residence or group living facility-residential uses not allowed in Thetford's Rural Residential district. Additionally, neighbors argue: (1) even if the Project is a "health care facility, " its additional use as a residential facility is precluded under the Bylaws; and (2) the Project is a reestablished, nonconforming use and must be prohibited.

         ¶ 10. The parties disagree about the level of deference this Court should give to the Environmental Division's interpretation of the Town's zoning ordinance. Neighbors contend that the interpretation of a zoning ordinance presents a legal issue that we review de novo without deference to the Environmental Division. In contrast, Confluence asserts that the deference we have historically given to the Environmental Division with respect to findings of fact extends to its interpretation of zoning ordinances.

         ¶ 11. The uncertainty as to our standard of review arises from our own arguably inconsistent statements on the subject. On many occasions, including recently, we have stated that we will "uphold the decision on the construction of a zoning ordinance unless it is 'clearly erroneous, arbitrary or capricious.' " In re Willowell Found. Conditional Use Certificate of Occupancy, 2016 VT 12, ¶ 13, 201 Vt. 242, 140 A.3d 179; see also, e.g., In re Wagner & Guay Permit, 2016 VT 96, ¶ 12, Vt., 153 A.3d ("[W]e must accord deference to the environmental court's construction of a permit condition, particularly when the court's expertise will assure consistent interpretation of the law." (quotation omitted)); In re Group Five Inves. CU Permit, 2014 VT 14, ¶ 4, 195 Vt. 625, 93 A.3d 111 ("We uphold the environmental court's interpretation of a zoning regulation so long as it is rationally derived from a correct interpretation of the law and not clearly erroneous, arbitrary or capricious."); In re Champlain Coll. Maple St. Dormitory, 2009 VT 55, ¶ 13, 186 Vt. 313, 980 A.2d 273 ("On review, we will uphold the Environmental Court's construction of an ordinance unless it is clearly erroneous, arbitrary or capricious." (quotation omitted)).

         ¶ 12. Recently, however, we have stated that we review the Environmental Division's interpretation of a regional plan, which we expressly analogized to its interpretation of a zoning ordinance, "without deference to the trial court" because "it presents a legal issue." In re B & M Realty, LLC, 2016 VT 114, ¶ 31, Vt., 158 A.3d 754. In a lengthy footnote, we explained that because the Environmental Division is part of the judicial branch, "there is no separation-of-powers imperative for deferential review." Id. ¶ 31, n.2. (quotation omitted). For that reason, we indicated that:

[W]here the outcome of the matter turns not on findings of fact, but on interpretation of a statutory term, and where we are not reviewing a decision by an agency charged with promulgating and interpreting its own rules, we employ the familiar de novo standard of review for matters of law.

Id. (quotation omitted). We did not, however, expressly disavow or overrule our repeated prior statements, noted above, that we review the Environmental Division's interpretation of a permit condition or zoning ordinance deferentially. We do so now, overruling prior cases which afforded deference to the Environmental Division's interpretation of a permit condition or a local zoning ordinance. Henceforth, we will review the Environmental ...

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