In re Bennington School, Inc.

In re Bennington School, Inc. (2002-367); 176 Vt. 584; 845 A.2d 332

2004 VT 6

[Filed 15-Jan-2004]

                                 ENTRY ORDER

                                  2004 VT 6

                      SUPREME COURT DOCKET NO. 2002-367

                             NOVEMBER TERM, 2003

  In re Appeal of Bennington           }	APPEALED FROM:
  School, Inc.	                       }
                                       }
                                       }
                                       }	Environmental Court
                                       }	
                                       }	DOCKET NO. 85-4-00

                                                Trial Judge: Merideth Wright

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Bennington School, Inc. appeals an environmental court
  decision in favor of the Town of Bennington finding that BSI's proposed use
  of a single-family home as a residence for students required a conditional
  use permit.  Despite finding that BSI's proposed residential use met the
  statutory requirements of a permitted group home under § 4409(d), the
  environmental court ruled that it was the functional equivalent of a
  boarding school or college dorm and thus, was properly subject to the
  conditional use process.  Because we find BSI's use of the residence under
  the first of two proposed scenarios operates as a permitted group home, we
  reverse.  We decline to rule on the second proposed scenario, however, as
  doing so would require us to render an impermissible advisory opinion.

       ¶  2.  This case was presented to the environmental court on
  stipulated facts which can be summarized as follows.  BSI is a
  state-licensed, residential-care facility for adolescent children with
  special educational needs, including learning disabilities, moderate
  intellectual and physical handicaps, and emotional and social disorders. 
  The parties stipulated that all of BSI's students are developmentally
  disabled.  As part of its mission, the school provides educational, mental
  health, and living skills services to all of its students.  

       ¶  3.  BSI students reside on one of the two main campuses or in one
  of the school's small residences.  The residences are designed to provide
  eligible students with a healthy, family-style living experience in which
  they can learn day-to-day living skills and develop bonds with small groups
  of students and staff before returning to their homes and communities.  No
  more than six students live in these residences, which are staffed by two
  or three BSI employees during the day when the children are in the homes,
  and at least one awake staff member throughout the night.  

       ¶  4.  The residences are located in the Bennington community on
  land zoned as Rural Residential or Village Residential under the Town's
  Bylaws.  There are no other residential-care facilities within 1,000 feet
  of any of BSI's residences.  
   
       ¶  5.  Some of the typical home-owner functions at the residences
  are performed by BSI staff such as maintaining the property and grounds
  around the residences.  Although the residences have functioning kitchens,
  most of the meals are prepared on the main campus and delivered to the
  residences by van each day.  

       ¶  6.  This dispute initially arose when BSI tried to purchase a
  single-family home to use as an additional residence.  In connection with
  the transaction, BSI applied to Bennington's Zoning Board of Adjustment for
  a permit.  Relying on 24 V.S.A. § 4409(d), which prohibits municipalities
  from excluding certain residential facilities and group homes from
  residential areas, BSI argued that it was entitled to a single-family
  residence permit.  The ZBA disagreed, concluding that BSI's proposed
  residence was not a permitted group home and therefore required a
  conditional use permit.  BSI appealed to the environmental court. (FN1) 

       ¶  7.  During the pendency of the appeal before the environmental
  court, the owner of the single-family residence at issue sold his home to
  another buyer.  The environmental court agreed to hear the appeal, however,
  once it determined that the case was not moot because, under the standard
  established in Doria v. Univ. of Vt., 156 Vt. 114, 118, 589 A.2d 317, 319
  (1991), the question was capable of repetition, yet evading review.  This
  issue was not appealed to this Court.  We accept the environmental court's
  conclusion and find the case is not moot on the facts presented.

       ¶  8.  On cross-motions for summary judgment, BSI proposed opening
  two different types of residences and asked the environmental court to
  evaluate whether they would be considered permitted single-family
  residences under 24 V.S.A. § 4409(d) or subject to conditional use review. 
  The first scenario depicts current operations at BSI's existing residences. 
  There, students leave the residences in a van to go to school on the main
  campus each weekday.  While on campus, they attend classes and group and
  individual counseling sessions.  The children have lunch at school and
  participate in after-school recreation and extra-curricular activities on
  campus or in the community.  Each evening, students return to their
  residences for dinner, homework, chores, and social time.  Students do not
  attend class on campus on weekends, but maintain similar schedules with
  respect to extra-curricular activities.  Besides evening homework and the
  occasional tutoring from BSI staff, however, no educational instruction is
  provided in the residences.  Nor does BSI staff provide routine clinical
  counseling in the residences except in the infrequent event a staff member
  needs to meet with a child or with the residents in a group to address
  specific issues.

       ¶  9.  The second scenario describes BSI's proposed alternative use
  of its residences.  In this hypothetical situation, BSI students would to
  go class and attend counseling sessions in rooms within the residences. 
  Teachers and clinicians would come to the house each day to provide these
  services, eliminating the need for any additional adult supervision during
  the day.  The students would still go to the campus to participate in
  recreational and extra-curricular activities, but they would receive all of
  their educational instruction and counseling within the residences.
        
       ¶  10.  Given the parties' stipulations, the environmental court
  began its analysis by "assuming that the [group homes] meet the statutory
  exemption for consideration as a permitted single-family residence."  The
  court then looked beyond 24 V.S.A. § 4409(d) to determine "whether anything
  else about the operation of the residence in connection with the school
  requires it to be treated as a school use rather than a permitted
  single-family use."  After reviewing the characteristics of each option,
  the court determined that under both proposed scenarios, the operation of
  the residences was so closely involved with the school that they were the
  functional equivalent of boarding school or college dormitories and thus
  subject to conditional use approval.  The court illustrated its point by
  comparing BSI's proposed uses of the residences to dance classes or an auto
  repair shop that, although operated out of a traditional single-family
  residence, nevertheless require conditional use approval.  The court then
  concluded that "[t]he statutory protection for group homes for the
  developmentally or physically disabled entitles such homes to be treated
  the same as a single-family residence, not to receive more protection than
  a single-family residence would receive under the same circumstances."  

       ¶  11.  The environmental court's findings of fact will be upheld if
  based on relevant, admissible evidence that a reasonable person would
  consider as supporting the conclusion.  In re Wal*Mart Stores, 167 Vt. 75,
  80, 702 A.2d 397, 401 (1997).  We will uphold its interpretation of a
  zoning regulation if it is rationally derived from a correct interpretation
  of the law and not clearly erroneous, arbitrary, or capricious.  Id.; In re
  Miserocchi, 170 Vt. 320, 323, 749 A.2d 607, 610 (2000).

       ¶  12.  Zoning ordinances are interpreted using the rules of
  statutory construction.  Miserocchi, at 324, 749 A.2d  at 611.  When
  construing statutes, our primary goal is to give effect to the
  Legislature's intent.  Herrick v. Town of Marlboro, 173 Vt. 170, 173, 789 A.2d 915, 917 (2001).  The definitive source of legislative intent is the
  statutory language, by which we are bound unless it is uncertain or
  unclear.  Miserocchi, 170 Vt. at 324, 749 A.2d  at 611.  "Because land use
  regulation is in derogation of the common law, any ambiguity is resolved in
  favor of the landowner."  Id.  

       ¶  13.  We look first to the plain language of the statute for
  guidance.  The Court will assume the common and ordinary usage of language
  in a statute unless doing so would render it ineffective, meaningless, or
  lead to an irrational result.  Town of Killington v. State of Vermont, 172
  Vt. 182, 188-89 , 776 A.2d 395, 400-401 (2001).  Under 24 V.S.A. § 4409(d):

    A state licensed or registered residential care home or group
    home, serving not more than six persons who are developmentally
    disabled or physically handicapped, shall be considered by right
    to constitute a permitted single-family residential use of
    property, except that no such home shall be so considered if it
    locates within 1,000 feet of another such home.  
      
  24 V.S.A. § 4409(d).  According to the plain language of the statute,
  therefore, any (1) licensed group home (2) located more than 1,000 feet
  from any other group home, which (3) serves no more than six people (3)
  with developmental or physical disabilities, "shall be considered by right"
  a permitted single-family residence for zoning purposes.  
               
       ¶  14.  As the environmental court correctly concluded, the parties'
  uncontested, stipulated facts submitted in support of the cross-motions for
  summary judgment verify that the proposed residence described in scenario
  one - where all classes and counseling occur on the main campus - satisfies
  the statutory factors of 24 V.S.A. § 4409(d).  Paragraphs five and six of
  the stipulated facts make clear that "BSI is licensed by the Vermont
  Department of Education to provide special education services . . . [and]
  the Vermont Department of Social & Rehabilitative Services to provide
  residential care to children."  The parties also agreed that BSI's students
  have been diagnosed as having a developmental disability, (FN2) that no
  more than six students live in the residences,  and that no other
  residential-care facility is located within 1,000 feet of the BSI's homes. 
  Because it meets the statutory requirements of § 4409(d), it was clear
  error for the environmental court to subject BSI's group home as presented
  in the first proposal to the conditional use process rather than treat it
  as a permitted single-family residence.                        

       ¶  15.  This outcome is supported not only by the facts, but also by
  the plain language of the statute and the legislative policy undergirding
  it.  Assuming the common and ordinary use of the statutory language as we
  must, it is evident that once a proposed land use meets the statutory
  criteria, it must be considered by right as a permitted single-family
  residential use.  The statutory factors are our primary indication of
  legislative intent regarding what elements are necessary to constitute a
  permitted use under § 4409(d), and once BSI demonstrated its eligibility as
  a group home, the environmental court was not permitted to look outside
  these factors for reasons to deny BSI this statutory protection.  See Town
  of Groton v. Agency of Natural Res., 172 Vt. 578, 579, 772 A.2d 1103,
  1105-06 (2001) (mem.) (holding that the water resources board could not
  consider evidence outside clearly stated statutory factors when determining
  whether to grant land-use permit). 

       ¶  16.  The Declaration of Policy accompanying the Legislature's 1977
  amendment to § 4409(d) further reinforces this conclusion.  There, the
  Legislature stated that "[i]t is the policy of the state of Vermont that
  developmentally disabled and physically handicapped persons should not be
  excluded by municipal zoning ordinances from the benefits of normal
  residential surroundings."  1977, No. 140 (Adj. Sess.), § 1.  By
  specifically exempting group homes for the developmentally and physically
  disabled from the conditional use process, the Legislature explicitly
  prohibited the use of municipal ordinances to exclude such group homes from
  residential areas.  If we permit zoning boards and the environmental court
  to rely on evidence beyond the specific statutory requirements to subject
  qualifying uses to conditional use review, we will have rendered the
  statute and the Legislature's intent meaningless.    
   
       ¶  17.  The Town argues that prohibiting the environmental court from
  considering facts outside the statutory factors is equivalent to asking the
  court apply evidentiary blinders.  To the contrary, parties seeking a
  permit under § 4409(d) must still provide sufficient evidence on each
  element to obtain statutory protection.  Disputes on such facts give the
  environmental court ample opportunity to consider all evidence relevant to
  the application of the statutory factors.  Allowing the court to go beyond
  this, however, risks subjecting these exempted populations to the very
  scrutiny the legislature sought to prevent by enacting § 4409(d). 

       ¶  18.  We now turn our attention to the second proposed scenario in
  which BSI students would receive their educational instruction and
  counseling services entirely within the residence.  Unlike the first
  scenario, BSI does not currently have a residence operating under these
  conditions nor was this issue raised before the ZBA.  This purely
  hypothetical question was not presented to the environmental court until
  the second set of cross-motions for summary judgment.  

       ¶  19.  Our jurisdiction is limited to issuing opinions determining
  actual controversies existing between parties.  In re Constitutionality of
  House Bill 88, 115 Vt. 524, 529, 64 A.2d 169, 172 (1949) ("The judicial
  power, as conferred by the Constitution of this State upon this Court is .
  . . the right to determine actual controversies arising between adverse
  litigants").  "The existence of an actual controversy turns on whether the
  plaintiff is suffering the threat of actual injury to a protected legal
  interest, or is merely speculating about the impact of some generalized
  grievance."  Parker v. Town of Milton, 169 Vt. 74, 77, 726 A.2d 477, 480
  (1999) (internal citations omitted).  Without an actual controversy, any
  judicial ruling would be merely an advisory opinion which is beyond our
  vested authority under the Vermont State Constitution.   J.L. v. Miller,
  174 Vt. 288, 293, 817 A.2d 1, 4 (2002).  The parties failed to articulate
  an actual controversy with respect to BSI's hypothetical second scenario. 
  We decline therefore to speculate on the application of § 4409(d) to this
  fictional residence or on whether it should be subjected to conditional use
  approval as a school.  Such purely advisory opinions are outside our
  jurisdictional power. 

       Reversed and remanded for further proceedings consistent with this
  opinion.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice


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                                  Footnotes


FN1.  The ZBA made its determination based on the Bennington Zoning Bylaws. 
  Because Section 4.1 of the Bennington Zoning Bylaw adopts 24 V.S.A. §
  4409(d) verbatim, we focus our discussion on the statute rather than the
  specific bylaw.

FN2.  The parties did not appeal the question of how to define the term
  "developmentally disabled" in this context, nor did they present oral
  argument on the issue before this Court.  As a result, we make no ruling as
  to the proper definition of the term "developmentally disabled" and accept
  the parties' stipulation on this point as the law of this case.