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SCOV Regulation Weblog: Is a rehab heart primarily a well being care or a residential facility? – vtdigger.org

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 the story of a nice person (or group of people) who wanted to help addicts. And a legal battle to open rehab in the quaint town of Thetford, Vermont.

I imagine it was a sunny day, when small, soft clouds drifted over the gentle hills of our beautiful state, when a friendly man or woman had the idea on the site of an old church in Grove Hill Road to build a rehab facility. After all, the old church once did similar services for youth and young adults. They had run camps for teenagers in the city center with riding and hiking tours. The American Baptists Churches in Vermont had once held retreats for those in recovery and suffering from mental health problems. But unfortunately the area was deserted and free of rehabilitation sounds and other happy thoughts that you would like to attribute to this story.

This new project would be called Confluence Behavioral Health, but before this dream could come true … that's right, you guessed it: you needed permission. But not any permission, no. A conditional use permit. So what did you do? You requested one. Who did you apply to? The Thetford Development Review Board. Did you get it? YES!

After examining the application and examining: “Vehicle circulation and parking; Landscaping, building design and lighting; Noise, smells, smoke, dust, harmful gases and air pollution; Fire and public security; Waste and underground supply companies ”have been approved! Great story, isn't it? Well, not that quickly. See, there are these neighbors, and they had what we call here at SCOV Law a NIMBY feeling (if you don't want to click the link, "NIMBY" means "Not in my back yard").

So the neighbors appealed the decision to … [add grand hall echo here] Vermont Superior Court, Environmental Division [end echo]. The trial judge determined that the project was a healthcare facility that complied with the building regulations. The judge agreed with the board of examiners that "the proposed (P) project will maintain the existing development of the sparse property in accordance with the historical use of the property and the character of the area [and] … the proposed use will not have one undue adverse effect on the character of the area. "

Did this satisfy the neighbors? Of course not. If so, you wouldn't read about it here. The case will be forwarded to SCOV to appeal.

And let me pause here. SCOV spends six pages discussing the examination standard in the appeal process. In any case, I have read it several times and although I am [add Southern drawl] "not a city lawyer" [end drawl]I can say with certainty that this is a big deal for many as well as for some lawyers, future litigation, although this case is in both cases would have been the same. Since SCOV has made different decisions in different cases in the past, SCOV wanted to settle this more precise point of the law once and for all.

From now on, the test standard for the appointment of the environmental department will be de novo. I've spared the bloody details of how SCOV makes this decision for the benefit of all of our readers, but if this does show up, you should read that opinion. While this is probably a big deal when it comes to "big business", this is not a particularly fun, exciting guy.

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Now to the good things – drum roll please – how SCOV actually decides this case.

I don't know how to freshen up better than I already did, but remember how everything in the trial went to whether this was a health facility or not? Do you remember the statutes for zoning? And do you remember the "development of the sparse property in line with the historical use of the property and the character of the area"?

Well, that's the whole point. If Confluence is a healthcare facility, approval was good and they can open their doors and help people recover from their addiction. If not, go back to the drawing board. How does SCOV know if Confluence is a healthcare facility?

Well, it's a little difficult here because the zoning statute didn't define it. SCOV is directed to the American Heritage Dictionary Online and Merriam-Webster.com. Both locations make it clear that drug rehabilitation is a health facility that is dedicated to the “prevention, treatment and treatment of illnesses and the maintenance of mental and physical well-being through the services offered by doctors and relatives. "SCOV deals with this topic really thoroughly and goes through other definitions in the state laws and the rules of legal interpretation, which also apply to city ordinances. A rehabilitation center is a health facility – at least according to the provisions of the zoning laws of the city of Thetford.

Finally, SCOV dispels some of the neighbors' disposable arguments on the last few pages. SCOV rejects the argument that any "use" must be approved by the Zoning District and that Confluence will also be a residential facility, stating that health facilities are often both.

SCOV can also easily refute the neighbors' claim that the decision improperly revived the “non-compliant” use of the old church. SCOV argues that this argument has been irrelevant since the new permit was issued.

This is confirmed.

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