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

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2017 VT 112
No. 2017-071
In re Confluence Behavioral Health, LLC Supreme Court
Conditional Use to Operate a Therapeutic
Community Residence Program On Appeal from
(Jason Albert, et al., Appellants) Superior Court,
Environmental Division
September Term, 2017
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.
¶ 1. EATON, J. 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
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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
3
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
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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
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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 Division’s interpretation of permit
conditions and local zoning ordinances without deference.1
¶ 13. The caselaw and rationale we relied upon in establishing this exception to the
general rule that we review legal questions without deference do not actually support the maxim
that we should uphold the Environmental Division’s interpretation of a zoning ordinance or permit
condition unless it is “clearly erroneous, arbitrary, or capricious.” This oft-repeated statement can
be traced back to Application of McDonald’s Corp., 151 Vt. 346, 349, 560 A.2d 362, 364
(1989). Two points are significant regarding our use of the statement in that case. First, we were
construing a decision of the superior court a year before the specialized environmental court was
1
Decisions recognizing the deference afforded to municipalities in interpreting their own
ordinances and to agencies in interpreting their own rules, including those made by the prior
Environmental Board, are not affected by the rule announced herein. Similarly, we continue to
afford deference to the Environmental Division, as we do with other Superior Court divisions, on
factual findings.
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created. Therefore, the standard of review we invoked was not based upon any particular expertise
of the trial court with respect to zoning law.
¶ 14. Second, in support of the stated standard of review, we cited Brassard Bros. v. Barre
Town Zoning Bd. of Adjustment, 128 Vt. 416, 264 A.2d 814 (1970), and DeWitt v. Town of
Brattleboro Zoning Bd. of Adjustment, 128 Vt. 313, 262 A.2d 472 (1970), using a “cf.” signal.2 In
Brassard Bros., we reversed the superior court’s order vacating a decision of a local board of
adjustment, stating that “courts should not interfere with the administrative action of the zoning
board unless the denial of the variance is shown to be clearly unreasonable, arbitrary or
capricious.” 128 Vt. at 421, 264 A.2d at 817. Similarly, in Dewitt, we stated that “[c]ourts will
not interfere with zoning or administrative action concerning special uses, variances, exceptions
or nonconforming uses unless clearly unreasonable, irrational, arbitrary or discriminatory.” 128
Vt. at 319, 262 A.2d at 476. Thus, the foundation for the “clearly erroneous, arbitrary or
capricious” standard for reviewing the Environmental Division’s construction of a zoning
ordinance appears to be nothing more than the unremarkable proposition that we “defer to a
municipality’s interpretation of its own zoning ordinance and will uphold it if it is reasonable and
has been applied consistently.” In re Carrigan Conditional Use & Certificate of Compliance, 2014
VT 125, ¶ 10, 198 Vt. 438, 117 A.3d 788.
¶ 15. Our deference to consistently applied municipal decisions stems in large part from
separation-of-powers concerns. As we explained in In re Albert, “[w]e defer to agency
interpretations of statutes that the Legislature has entrusted them to administer as much out of a
concern for the proper separation of powers as in consideration of agency expertise.” 2008 VT
30, ¶ 6, 183 Vt. 637, 954 A.2d 1281 (mem.); see also Town of Victory v. State, 2004 VT 110,
2
“Cf.” preceding a citation signals that “the cited authority supports a proposition different
from the main proposition but sufficiently analogous to lend support. Literally, ‘cf.’ means
‘compare.’ ” The Bluebook: A Uniform System of Citation 59 (Colum. L. Rev. Ass’n et al. eds.,
20th ed. 2015).
7
¶ 16, 177 Vt. 383, 865 A.2d 373 (“To preserve the appropriate separation of judicial and executive
powers, we presume that judicial review of administrative decisions is deferential unless there is a
clear [legislative] statement of contrary intent.”). But because the Environmental Division “is a
part of the judicial branch, there is no separation of powers imperative for judicial review” of its
decisions. Albert, 2008 VT 30, ¶ 6; see also In re SP Land Co., LLC, 2011 VT 104, ¶ 13 n.2, 190
Vt. 418, 35 A.3d 1007 (stating separation-of-powers concerns did not require giving deference to
environmental court’s interpretation of Act 250 Rule 34(D) where we were not “dealing with an
agency’s interpretations of its own rules” but rather were “reviewing a decision from a part of the
judicial branch”).
¶ 16. To the extent that we have suggested other reasons for deferring to the
Environmental Division’s construction of zoning ordinances or permit conditions, those
considerations likewise do not warrant a special rule of deference to the trial court with respect to
interpretation of zoning ordinances and permit conditions. For example, in Agency of Natural
Resources v. Weston, we held that the environmental court’s construction of an Act 250 permit
condition is due deference, “particularly when the court’s expertise will assure consistent
interpretations of law.” 2003 VT 58, ¶ 16, 175 Vt. 573, 830 A.2d 92 (mem.). Weston, in turn,
relied on language from an earlier case in which this Court afforded deference to the environmental
court’s interpretation of an Act 250 permit provision. See id. (citing Sec’y, Vt. Agency of Nat.
Res. v. Handy Family Enters., 163 Vt. 476, 482, 660 A.2d 309, 313 (1995)). In Handy, we stated
that we must accord “some deference” to the environmental court’s determination as to whether a
permit condition is vague because “[s]uch conclusions necessarily involve mixed questions of fact
and law” and because “[t]he division was created to place all environmental enforcement actions,
and the appeal of certain environmental orders, before one judge” to assure “more even-handed
enforcement of environmental laws.” Handy, 163 Vt. at 482, 660 A.2d at 313 (quotation
omitted). We have recently emphasized, however, in the context of zoning matters, that “[w]e
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review mixed questions of law and fact de novo.” In re Lathrop Ltd. P’ship, 2015 VT 49, ¶ 44,
199 Vt. 19, 121 A.3d 630; see also Luck Bros., Inc. v. Agency of Transp., 2014 VT 59, ¶ 26, 196
Vt. 584, 99 A.3d 997 (stating that our review of mixed questions of law and fact is nondeferential
and on the record). Moreover, we no longer have a separate environmental court with a single
environmental judge, but rather an Environmental Division with multiple judges within a unified
system.
¶ 17. In sum, we review zoning ordinances and municipal permit conditions according
to the principles of statutory construction. Wagner & Guay, 2016 VT 96, ¶ 11. We approach the
interpretation of such ordinances and permits as a legal question that we resolve without deference
to the trial court. See In re Treetop Dev. Co. Act 250 Dev., 2016 VT 20, ¶ 9, ___ Vt. ___, 143
A.3d 1086 (stating that this Court proceeds “with a nondeferential, on-the-record review” of issues
of law and statutory interpretation); see also In re Jenness & Berrie, 2008 VT 117, ¶ 26, 185 Vt.
16, 968 A.2d 316 (“To the extent that the setback issues raises questions of law, our review is de
novo.”). To the extent that we have suggested otherwise in prior decisions, we overrule those
statements. Thus, we review the Environmental Division’s determinations regarding Confluence’s
Project de novo.
¶ 18. There is no factual dispute in this case; both parties agree on the scope of the
Confluence Project. The question is whether Confluence’s community therapeutic residence
qualifies as a “health care facility” under the Thetford Zoning Bylaws. We conclude that it does.
¶ 19. Zoning bylaws are enacted to implement a town plan. 24 V.S.A. § 4411(a) (“A
municipality may regulate land development in conformance with its adopted municipal
plan . . . .”). “Although the plan may recommend many desirable approaches to municipal
development, only those provisions incorporated in the bylaws are legally enforceable.”
Kalakowski v. John A. Russel Corp., 137 Vt. 219, 225-26, 401 A.2d 906, 910 (1979). To
determine whether a project complies with the bylaws, familiar rules of construction can be used.
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In re Howard Cent. Renovation Permit, 2014 VT 60, ¶ 9, 196 Vt. 542, 99 A.3d 1013. Thus,
interpreting municipal zoning ordinances requires examining the language and intent of the
Bylaws and the drafters.3
¶ 20. Our goal in interpreting a zoning ordinance is to give effect to the legislative intent.
In re Howard Cent. Renovation Permit, 2014 VT 60, ¶ 9 (“[The] paramount goal in construing a
zoning ordinance, like any statute, is to give effect to the legislative intent.”(quotation omitted)).
To this end, the Court “construe[s] an ordinance’s words according to their plain and ordinary
meaning, giving effect to the whole and every part of the ordinance.” In re Laberge Moto-Cross
Track, 2011 VT 1, ¶ 8, 189 Vt. 578, 15 A.3d 590 (mem.) (quotation omitted). We are “bound by
the plain meaning of the words . . . unless the express language leads to an irrational result.” In re
Tyler Self-Storage Unit Permits, 2011 VT 66, ¶ 6, 190 Vt. 132, 27 A.3d 1071 (quotation omitted).
If there is no plain meaning apparent, the Court attempts to discern the intent from other sources.
In re Stowe Club Highlands, 164 Vt. 272, 280, 668 A.2d 1271, 1277 (1995).
¶ 21. Here, the Thetford Zoning Bylaws neither expressly permit nor prohibit
“therapeutic community residences.” Table 2.1 of the Thetford Zoning Bylaws contains a list of
3
Neighbors encourage this Court to apply the “actual use” test, which we use to assess Act
250 jurisdiction, rather than tools of statutory construction to determine whether the Project
conforms to the Thetford Zoning Bylaws as a “health care facility.” Act 250 analysis and
municipal zoning interpretation serve different purposes—Act 250 considers actual use of the land
rather than the overall purpose of a development scheme to ensure accountable land development,
while zoning ordinances are enacted to provide for development that is consistent with a town or
municipal plan. See In re S-S Corp./Rooney Hous., Dev., 2006 VT 8, ¶ 12, 179 Vt. 302, 896 A.2d
67 (“Act 250 was enacted ‘to protect and conserve the lands and the environment of the state and
to ensure that these lands and environment are devoted to uses which are not detrimental to the
public welfare and interests.’ ”). As such, Act 250 cases are inherently use-based. In re BHL
Corp., 161 Vt. 487, 490, 641 A.2d 771, 773 (1994) (“[T]he proper starting point for determining
Act 250 jurisdiction is the actual use of the land, not necessarily the overall purpose of a
development scheme.”). Here, we address the issue of interpreting a zoning ordinance, which this
Court has consistently analyzed under traditional methods of statutory construction. See Wagner
& Guay, 2016 VT 96, ¶ 11 (declining to construe permit conditions based “under the same
principles as private contracts” because “permit conditions are construed according to normal rules
of statutory construction”). Thus, the actual use test is inapplicable.
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permitted uses by district. While “therapeutic community residence” is not listed as a permitted
or conditional use in any district, Table 2.1 includes “health care facility” as an allowed conditional
use in the Town’s Rural Residential area. Thus, if Confluence’s therapeutic community residence
is a “health care facility,” then it may be allowed as a conditional use and we need not investigate
further. Because the Bylaws do not define the term “health care facility,” we are tasked with
determining its meaning.
¶ 22. We begin our examination of the Bylaws’ language by looking to the zoning
district’s purpose. See In re Tyler Self-Storage Unit Permits, 2011 VT 66, ¶ 13 (discussing the
importance of reviewing purpose of underlying zoning district when construing zoning ordinance
language). The Bylaws state that the purpose of Thetford’s Rural Residential district is:
[T]o 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.
This area is characterized by development that has [p]articular
sensitivity to agriculture and natural resources[, and] [m]inimal
sprawl . . . .
¶ 23. There is some development that by its nature would necessarily be incompatible
with the stated purpose of the Rural Residential district. However, a therapeutic residential facility
is not, simply because it is therapeutic and residential, in conflict with the stated purpose of the
Rural Residential area—to safeguard natural resources and ensure minimal development. It is
entirely possible for a therapeutic residential facility to be located within the Rural Residential
district without disrupting the district’s stated purpose. Considering the purpose of the Rural
Residential district does not lead us to the conclusion that a therapeutic community residence
cannot be a health care facility.
¶ 24. Neighbors argue that the Project is a “therapeutic community residence,” and,
consequently, cannot be a “health care facility.” However, simply because a particular use, or an
aspect of a use, is not expressly listed as permitted in the Bylaws does not mean that use is
11
prohibited. See In re LaBerge Moto-Cross Track, 2011 VT 1, ¶ 14 (finding restrictive clause
expressly prohibiting specific use was not dispositive in determining whether use was permittable
due to “breadth of novel land-development possibilities a municipal body may face”). Moreover,
there is no reason to conclude that the Project’s use as a “therapeutic community residence” and
its use as a “health care facility” are mutually exclusive; a “therapeutic community residence” can
be a subcategory of “health care facility.”4 The Project provides professional mental-health
counseling and treatment through on-site, inpatient programs—services commonly associated with
“health care facilities.” Therefore, the purpose and plain language of the Thetford Zoning Bylaws
provide support for the contention that Confluence’s Project is a “health care facility” and allowed
as a conditional use.
¶ 25. This Court may also look to sources outside the Bylaws when interpreting a zoning
ordinance. In re Stowe Club Highlands, 164 Vt. at 280, 668 A.2d at 1277; see also Pease v.
Windsor Dev. & Review Bd., 2011 VT 103, ¶ 17, 190 Vt. 639, 35 A.3d 1019 (looking to dictionary
definitions to support statutory interpretation). Here, Confluence's Project comports with common
definitions of “health care facility,” Vermont statutory provisions employing that term, DAIL
licensing regulations, caselaw, and the Thetford Town Plan—all of which are nonbinding, but
persuasive, in our analysis.
¶ 26. “Health care facility” includes: “the prevention, treatment, and management of
illness and the preservation of well-being through services offered by the medical and allied health
professions,” Health care American Heritage Dictionary of the English Language,
https://ahdictionary.com/word/search.html?q=health+care [https://perma.cc/VG4B-QLUJ], and
“efforts made to maintain or restore health[,] especially by trained and licensed professionals,”
4
See infra ¶ 30 (explaining that DAIL regulations list “therapeutic community residence”
as a subcategory of “health care facility”); ¶ 37 (explaining that conditional-use and site-plan
approval for a “health care facility” under the Bylaws is sufficient to cover collateral residential
uses—additional permitting is unnecessary).
12
Health care Merriam-Webster.com, https://www.merriam-webster.com/dictionary/health%20care
[https://perma.cc/CB9B-TEVB]. While “health care” may be more strictly defined as care
provided by doctors and psychiatrists (e.g., “especially by trained and licensed professionals”;
“services offered by the medical profession”), there is no indication that a “health care facility”
must be construed so narrowly—facilities offering “trained and licensed professionals” are
sufficient.
¶ 27. Confluence’s Project meets this broad definition by providing a space for young
adult males, all of whom must have a diagnosed mental-health condition, to seek therapeutic
attention under clinical supervision. Confluence describes its program as:
[A] short-term residential wilderness therapy program designed to
treat young adult males 18-28 years old. Confluence’s program
combines clinical therapeutic services with adventure-based
wilderness therapy and agrarian living to help clients address mental
health diagnosis and emotional, behavioral, and relational
challenges . . . . [C]lients will participate in individual and group
therapy sessions, counseling and peer support all supervised by a
licensed mental health professional . . . . The entire client
experience while at Confluence is designed to work together as part
of the therapeutic treatment.
(emphases added). As such, the Project fits comfortably within the scope of “health care facility”
outlined above.
¶ 28. While not binding, statutory language may aid us in defining “health care facility.”
See Sec’y, Vt. Agency of Nat. Res. v. Hardy Family Enter., 163 Vt. 476, 483-84, 660 A.2d 309
(1995) (looking to Vermont statute regulating outdoor advertising for definition of the word
“sign”). Title 18, Chapter 221, which governs health care administration in Vermont, defines
“health care facility” as follows: “[A]ll institutions, whether public or private, proprietary or
nonprofit, which offer diagnosis, treatment, inpatient, or ambulatory care to two or more unrelated
persons, and the buildings in which those services are offered.” 18 V.S.A. § 9402 (emphases
added). Title 18, Section 9432(8) similarly defines “health care facility”:
13
“Health care facility” means all persons or institutions, including
mobile facilities, whether public or private, proprietary or not for
profit, which offer diagnosis, treatment, inpatient, or ambulatory
care to two or more unrelated persons, and the buildings in which
those services are offered. The term . . . shall include but is not
limited to:
(A) hospitals, including general hospitals, mental hospitals,
chronic disease facilities, birthing centers, maternity hospitals, and
psychiatric facilities including any hospital conducted, maintained,
or operated by the state of Vermont, or its subdivisions, or a duly
authorized agent thereof;
(B) nursing homes, health maintenance organizations, home
health agencies, outpatient diagnostic or therapy programs, kidney
disease treatment centers, mental health agencies or centers,
diagnostic imaging facilities, independent diagnostic laboratories,
cardiac catheterization laboratories, radiation therapy facilities, or
any inpatient or ambulatory surgical, diagnostic, or treatment center.
18 V.S.A. § 9432(8) (emphases added). The statute specifically defines “health care facility” to
include inpatient facilities. Thus, a health care facility that provides treatment to people who stay
on the property, such as Confluence’s Project, is encompassed within the definition. Various state
agency regulations contain the same definition. See Green Mountain Care Board Regulations 80-
003, Code of Vt. Rules § 80-280-003, https://www.lexisnexis.com/hottopics/codeofvtrules/; Dept.
of Financial Regulations, Division of Health Care Administration 21-020, Code of Vt. Rules § 21-
040-020-3, https://www.lexisnexis.com/hottopics/codeofvtrules/; Dept. for Children and Families
130-710, Code of Vt. Rules § 13-170-710-7101.3,
https://www.lexisnexis.com/hottopics/codeofvtrules/.
¶ 29. Confluence’s Project aligns with these statutory definitions. The Project involves
the provision of mental-health treatment to two or more unrelated persons to help patients address
mental-health diagnoses, as well as emotional, behavioral, and relational challenges. Confluence
will provide mental-health care to patients through individual and group therapy sessions with
licensed mental-health professionals, combined with adventure-based wilderness therapy and
communal agrarian living, that are clinically designed to work together as part of a therapeutic
14
treatment. Therefore, Vermont statutory definitions support the conclusion that the Project is a
“health care facility.”
¶ 30. The fact that DAIL, which is statutorily responsible for licensing and regulating
“long-term care facilities in which medical, nursing, or other care is rendered,” is licensing
Confluence’s Project reinforces the argument that the Project is a “health care facility.” 33 V.S.A.
§ 7101; see also 33 V.S.A. § 504(a) (directing DAIL to administer “[a]ll of the duties,
responsibilities, and authority of the Division of Licensing and Protection to . . . nursing
homes . . . residential care homes, hospitals, and home health services granted under the authority
of chapter 71 of this title and any other provision of law”). While definitions provided by DAIL
are nonbinding on this Court, they further support the conclusion that the Project is a “health care
facility.” Certain DAIL facilities are specifically defined to include licensed therapeutic
community residences. See 33 V.S.A. § 7102(2). Under these provisions, “facility” means a
“therapeutic community residence licensed or required to be licensed pursuant to the provisions of
this chapter.” Id. Therapeutic community residences are defined as: “place[s], however named,
excluding hospitals as defined by statute, which provide[], for profit or otherwise, transitional
individualized treatment of three or more residents with major life adjustment problems, such as
alcoholism, drug abuse, psychiatric disability, or delinquency.” Id. § 7102(11). DAIL’s website
lists “health care facilities” that DAIL licenses and certifies. Vt. Dep’t of Disabilities, Aging &
Indep. Living: Div. of Licensing & Prot., http://dlp.vermont.gov/ [https://perma.cc/Z358-4XMC].
“Therapeutic community residence” is one type of facility included in this list. Vt. Dep’t of
Disabilities, Aging & Indep. Living: Div. of Licensing & Prot., Facility Lists,
http://dlp.vermont.gov/survey-cert/facility-lists [https://perma.cc/TH49-9KZK]. Thus, under
DAIL’s licensing authority, Confluence’s therapeutic community residence would be recognized
as subcategory of “health care facility” “in which medical, nursing, or other care is rendered”—
the two uses are not mutually exclusive as neighbors contend.
15
¶ 31. The Court has not defined “health care facility” in the context of interpreting a
zoning ordinance. However, two tax exemption cases, Fletcher Farm, Inc. v. Town of Cavendish,
137 Vt. 582, 409 A.2d 569 (1979), and Kingsland Bay School, Inc. v. Town of Middlebury, 153
Vt. 201, 569 A2d 496 (1999), have considered whether therapeutic community residences were
facilities used for “health purposes.” Again, while not dispositive, these cases aid our analysis
here. In Fletcher Farm Inc. v. Town of Cavendish, we determined that a licensed therapeutic
community residence, which included “group therapy, work, recreation, family-style meals and
other related programs,” established that the property was being used for health purposes, and was
therefore not exempt from real property tax under 32 V.S.A. § 3832(7). 137 Vt. at 582, 409 A.2d
at 569. The Fletcher Farm, Inc. program included an inpatient component. Id. Alternately, in
Kingsland Bay School, Inc. v. Town of Middlebury, property that was used to provide group
housing and instruction for adolescents with life adjustment challenges, but was not licensed as a
therapeutic community residence and offered no treatment or counseling on the property, qualified
for tax exemption due to the lack of on-property treatment. 153 Vt. at 206, 569 A.2d at 499. The
Court distinguished Kingsland Bay School, Inc. from Fletcher Farm, Inc. on the basis that, while
Fletcher Farm offered inpatient, on-site treatment, “any special physical or mental problems that
afflicted Kingsland residents are treated by outside providers; even counseling sessions take place
outside the group home.” Id. These two cases demonstrate that on-site, inpatient treatment is an
important factor in determining whether a therapeutic community residence is a facility used for
“health purposes.” Similar to the Fletcher Farm, Inc. program, Confluence provides on-site,
inpatient treatment; thus, the Project comports with use for “health purposes” under this Court’s
caselaw.
¶ 32. Neighbors further argue that Confluence’s Project is impermissible because the
Town Plan suggests that extended care facilities should be allowed in Village Residential and
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Community Business zones, but not in Rural Residential areas. This Court has addressed the role
of a town plan in interpreting zoning regulations:
[T]he [town] plan is merely an overall guide to community
development. It is a general guideline to the legislative body for its
consideration of the municipality’s land use program and of the
community’s needs and desires. Often stated in broad, general terms
it is abstract and advisory. Zoning bylaws, on the other hand, are
specific and regulatory. Zoning is properly conceived of as the
partial implementation of a plan of broader scope. It must reflect
the plan, but it need not be controlled by it. Although the plan may
recommend many desirable approaches to municipal development,
only those provisions incorporated in the bylaws are legally
enforceable.
Kalakowski, 137 Vt. at 225-26, 401 A.2d at 910 (citation omitted). The town plan serves as a
guide to outline community development; however, the plan cannot impose mandatory standards
on community actors—that is the purview of the zoning bylaws.
¶ 33. Here, the Town Plan offers guidance on development of the Rural Residential
district in its recommended policies, but these recommendations are not mandatory unless these
policies were expressly implemented through the Zoning Bylaws. The Town Plan suggests:
Consider adding specific ordinances: . . . Residential institutions,
such as homes for the aged, rest homes, extended care facilities,
convalescent homes, elderly housing projects and similar types of
living accommodations should be permitted as conditional uses,
rather than permitted uses, close to community facilities and
services in the village residential and community business zones.
This language is aspirational and not binding on this Court. The language, “consider adding
specific ordinances,” indicates that this section of the Town Plan was not intended to function as
a regulatory requirement without adoption into the Zoning Bylaws, but rather as mere thoughts
regarding possible future zoning ordinance amendments. Without such adoptions, aspirational
language in the Town Plan is not regulatory. See In re Champlain Oil Co. Conditional Use
Application, 2014 VT 19, ¶ 5, 196 Vt. 29, 93 A.3d 139 (finding word “should” provides guidance,
but does not establish regulatory standards in town plan). The Town Bylaws recognize this
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principle internally by stating: “Recommended policies are actions that, when enacted, will
achieve an objective.” (emphasis added). As such, language in the Town Plan is not binding.
¶ 34. Additionally, the language in the Town Plan does not expressly refer to health care
facilities. Even if the Town Plan evidences an intent that “homes for the aged, rest homes,
extended care facilities, convalescent homes, elderly housing projects, and similar types of group
living accommodations” should only be allowed close to Village Residential and Community
Business zones, these facilities serve a different purpose than Confluence’s Project because they
provide long-term care, rather than short-term transitional treatment.5 The Project may still be
deemed a “health care facility,” which is expressly permitted in Rural Residential areas with a
conditional-use permit under the enacted Bylaws, while the aforementioned examples are not.
Therefore, even using the Town Plan to lend persuasive authority to our interpretation, there is no
reason to narrowly construe the Town Plan to exclude the Project.
¶ 35. In addition to their “actual use” argument, which we have rejected, neighbors
contend that, even if the Project is used to some degree as a “health care facility,” the Project is
primarily residential, and those residential aspects should be considered—if not dispositive—in
determining whether Confluence’s Project is allowed in Thetford’s Rural Residential area. Under
5
The examples listed in the Town Plan’s “Recommended Policies” are distinguishable
from the Project due to the intended duration and purpose of the patient’s stay. These examples,
such as convalescent homes and extended care facilities, provide long-term care where residents
reside for the purpose of receiving daily care, which need not be for purposes of treatment of a
medical condition, without intent to leave. Residents could remain at the facility indefinitely, as
if it were permanent home. In contrast, Confluence’s therapeutic community residence anticipates
a regimen of professional treatment with a set termination date after eight or twelve weeks.
DAIL’s definition of therapeutic community residence, which explains that such facilities are
“transitional” rather than long-term or permanent, further supports this distinction. The Town Plan
is concerned with large numbers of people being housed for an open-ended period in the Rural
Residential area, yet the Bylaws allow “health care facilities” in the Rural Residential district.
These two competing visions can be reconciled by permitting short-term inpatient treatment at
“health care facilities” in the Rural Residential area, while relegating long-term care facilities,
which may only be providing assistance with activities of daily living, to the more populated
Village Residential and Community Business zones.
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neighbors’ logic, the Project’s primary use is residential, trumping its secondary use as a “health
care facility,” and must undergo the permitting process accordingly. We remain unpersuaded.
¶ 36. Neighbors argue that the impacts of the Project, rather than the definition of the
term “health care facility,” establish that the Project’s primary use is residential and ought to be
prohibited. The impacts that neighbors are concerned with—including human waste, food
handling, wastewater, and water supply—are primarily controlled by environmental regulations
administered by the Agency of Natural Resources and/or DAIL as opposed to local zoning
restrictions. Additionally, Confluence’s entire proposal underwent a full conditional-use and site-
plan review by the DRB to ensure, among other things, that the use would not result in undue
adverse effects. The Project’s impacts were fully reviewed under the same procedures that applied
whether the Project was proposed as a health care facility or any other conditionally allowed use.
The DRB determined that the Project complied with, and would not have an undue adverse impact
under, the applicable criteria. This process is more rigorous than the review required for residential
uses in the Rural Residential district. Therefore, to the extent that neighbors are concerned that an
additional permit is required for residential use, the conditional-use and site-plan approval will
satisfy these concerns.
¶ 37. Neighbors further assert that each of a project’s uses must be allowed within the
project’s zoning district. 24 V.S.A. § 4414(3)(A); id. § 4473; In re Wesco, Inc., 2006 VT 52, ¶¶ 7-
8, 10, 180 Vt. 520, 904 A.2d 1145; Fleury v. Town of Essex Zoning Bd. of Adjustment, 141 Vt.
411, 416, 449 A.2d 958, 960-61 (1982). However, while Confluence’s potential uses—therapeutic
community residence, recreation, and health care facility—must be allowed under the zoning
regulations or Bylaws, the Project does not require conditional-use and site-plan approval for every
use. Where one use is a component of another allowed use, additional permitting via conditional-
use and site-plan review is not necessary. For example, in In re Howard Center Renovation Permit,
this Court determined that counseling therapies provided by a clinic are part of a patient’s overall
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treatment plan, and therefore the owners of an approved medical office were not required to attain
additional site-plan and conditional-use review for the provision of counseling services. 2014 VT
60, ¶ 11. The Court found that the substance abuse clinic “[did] not constitute a ‘social services’
establishment—instead of or even in addition to a ‘medical office’—merely because treatment
include[d] a counseling component.” Id. Similarly, here the Project’s inpatient treatment program
is not a residential use “instead of or even in addition to” a “health care facility” merely because
residing on-site while receiving therapy is a component of the patient’s overall treatment plan.
Therefore, the residential use does not require separate permitting above and beyond the Project’s
conditional-use and site-plan approval as a “health care facility,” further affirming that the Project
may be used simultaneously as both a “health care facility” and therapeutic community residence.
¶ 38. Finally, neighbors claim that the Project impermissibly reestablishes the
“therapeutic retreats, conferences, and events” previously hosted on-site by the Church, which
neighbors assert were nonconforming uses. Confluence concedes that it cannot reestablish the
nonconforming uses previously exercised by the Church. Confluence seeks conditional-use and
site-plan approval for the Project, without reliance on prior nonconforming uses. Because we
agree this Project is a conditionally approved “health care facility” in its own right, we need not
consider this argument.
¶ 39. In conclusion, the absence of a definition for “health care facility” in the Thetford
zoning ordinance—the catalyst for this dispute—does not render the term ambiguous or
inapplicable to Confluence’s Project. While any ambiguity in the zoning ordinance must be
resolved in favor of allowing the Project,6 here we need not rely on the resolution of continuing
6
“[B]ecause zoning ordinances ‘are in derogation of private property rights,’ they must be
construed narrowly in favor of the property owner.” In re Lathrop Ltd. P’ship., 2015 VT 49, ¶ 29
(quoting In re Champlain Oil Co., 2014 VT 19, ¶ 2, 196 Vt. 29, 934 A.3d 139). Thus, if the term
“health care facility” is ambiguous, we must err on the side of a broader interpretation, including
the scope of a therapeutic community residence. This practice ensures that this Court avoids
“legislat[ing] in the guise of construction” by inserting a restriction in a zoning ordinance that was
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ambiguity to decide this case. To the contrary, the purpose and plain language of the Thetford
Zoning Bylaws, as well as the sources discussed above, demonstrate ample support that
Confluence’s Project is a “health care facility.” Therefore, applying our own statutory
interpretation to the evidence, we affirm the Environmental Division’s determination that
Confluence’s therapeutic community residence is a “health care facility” under the Thetford
Zoning Bylaws and, as such, is an allowed conditional use in Thetford’s Rural Residential area.
Affirmed.
FOR THE COURT:
Associate Justice
not included by the legislative or municipal body. Murphy Moto Sales, Inc. v. First Nat’l Bank of
St. Johnsbury, 122 Vt. 121, 123, 165 A.2d 341, 342 (1960). Evidence of an intent to exclude a
therapeutic community residence would have to be direct and specific within the Bylaws. See In
re Willowell Found. Conditional Use Certificate of Occupancy, 2016 VT 12, ¶ 19 (“[O]ur
precedent requires clear restrictions on land use.”). No evidence, much less, specific evidence, of
such intent exists. Here, we must resolve any ambiguity in favor of the landowner, and affirm the
permissibility of Confluence’s Project under the Bylaws’ language.
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