SCOV Law Blog: Is a rehab center primarily a health care or a residential facility?

Editor’s note: This piece from the SCOV Law Blog is by Ember S. Tilton.

In re Confluence Behavioral Health, LLC, 2017 VT 112

This is a story of a nice person (or group of people) who wanted to help those suffering from addiction. And a struggle through some litigation to open a rehab in the quaint town of Thetford, Vermont. 

I imagine it was a sunny day as small, soft clouds drifted over the rolling hills of our beautiful state, when a kind man or woman conceived the idea of building a rehab facility on the grounds of an old church on Grove Hill Road. After all, the old church once provided similar services for youth and young adults. They had run camps for inner city youth, with horseback riding and hiking trips. The American Baptists Churches of Vermont had once held retreats for those in recovery and those who suffered with mental health issues. But alas, the grounds were abandoned and empty of the sounds of rehabilitation and whatever other joyous thoughts you want to attribute with this story. 

This new project would be called Confluence Behavioral Health, but before this dream could become reality … that’s right, you guessed it: they needed a permit. But not just any permit, no. A conditional use permit. So what did they do? They applied for one. Who did they apply to? The Thetford Development Review Board. Did they get it? YES! 

After reviewing the application and considering, “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” they got approved! Great story right? Well, not so fast. See there are these neighbors, and well, they had what we here at SCOV Law call a NIMBY sentiment (if you don’t want to click the link, “NIMBY” means Not In My Back Yard). 

So, the Neighbors appealed the decision to the … [add grand hall echo here] Vermont Superior Court, Environmental Division [end echo]. The trial judge found that the project was a health care facility that complied with the zoning bylaws. The judge agreed with the Review Board that “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 [and] … the proposed use will not have an undue adverse effect on the character of the area.”

Did this satisfy the Neighbors? Well, of course not. If it did, you wouldn’t be reading about it here. The case goes on up to SCOV for appeal.

And let me pause here. SCOV spends six pages discussing the Standard of Review on appeal. In any event, I read it several times and though I [add Southern drawl] “ain’t no big city lawyer” [end drawl] I think it is safe to say, that this is a big deal for a lot of lawyers as well as some future litigants, even though this case would have turned out the same either way. But since in the past SCOV has ruled differently on different cases, SCOV wanted to settle this finer point of law once and for all.

Henceforth, the standard of review for appeal from the Environmental Division will be de novo. I’ve spared the gory details of how SCOV reaches that decision for the sake of all our readers, but if this is going to come up in any case you might be involved with, you should read this opinion. While this is probably a big deal as “big deals” go, this isn’t the super-fun, exciting type.

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Now for the good stuff — drum roll, please — how SCOV actually decides this case. 

I don’t know how to juice this up any better than I already have, but remember how in the trial court, it all came down whether this was a health care facility or not? Remember the zoning bylaws? And remember about “low-density development of the property consistent with the historic use of the property and the character of the area?” 

 Well, yeah, so that’s the crux of it. If Confluence is a health care facility then the approval was good and they can open their doors and start helping folks recover from their addictions, but if not, then it’s back to the drawing board. How does SCOV know if Confluence is a health care facility?

Well it’s a bit tricky here because the zoning bylaws failed to define it. SCOV turns to the American Heritage Dictionary Online and Both sites make it clear that a drug rehab is a health care facility, which is a facility dedicated to “The prevention, treatment, and management of illness and the preservation of mental and physical well-being through the services offered by the medical and allied health professions.” SCOV really covers this topic thoroughly, going through other definitions in state statutes and the rules of statutory interpretation, which, by the way, apply to town ordinances too. A rehabilitation center is a health care facility — at least according to the terms used by the Town of Thetford’s zoning laws. 

Finally, in the last few pages, SCOV dispels some of the Neighbor’s throwaway arguments. SCOV dismisses the argument that each “use” must be permitted by the zoning district and that Confluence will also be a residential facility, by noting that health care facilities are often both. 

SCOV likewise easily disposes of the Neighbors’ assertion that the decision impermissibly brought back to life the old church’s “non-conforming” use. SCOV reasons that since the new permit was granted, that argument no longer matters. 

This one gets affirmed.