Tuesday, August 12, 2014

Counseling and Conditional-Use Review

In re Howard Center Renovation Permit, 2014 VT 60

By Nicole Killoran

A few years ago, applicant, Burlington’s Howard Center, decided to relocate one of its opioid-treatment clinics and reduce the patient load on another. It leased office space for this purpose in an existing medical office in South Burlington, between 500 to 1000 feet from South Burlington Middle and High Schools, respectively. It applied to South Burlington for a permit to renovate the office space for its purposes, which included medically diagnosing and treating opioid addiction, and mandatory individual and group counseling, all under the supervision of a physician.

South Burlington granted the permit, and waived site-plan review because it thought this wasn’t a change in use for the office space. The South Burlington School District appealed the approval to the Development Review Board (DRB), lost, appealed to the environmental court, lost again, and appealed to the SCOV.

The appeal apparently garnered some attention. The SCOV got several amici briefs from the Vermont Department of Health, the Defender General, and the Vermont Council on Development and Mental Health Services, Inc. These “friends of the court” weighed in on the implications of denying the permit under the Americans with Disabilities Act and the Rehabilitation Act of 1973, and the desperate need for opioid treatment centers in Vermont.

On appeal, the school district raises three issues with the trial court’s, and the DRB’s, conclusions in favor of applicant.

First, the school district lost on the argument that the clinic was a “change of use.” The school district thinks (because, you know, school districts have thoughts) that the clinic is less of a medical office and more of a “social services” clinic, which the zoning regs define as a place a person can get “counseling for psychological problems.” Changing a space to a “social services” establishment requires site plan review, a result the school district desperately wants.

The crux of the school district’s argument is the bit about counseling drug addicts. A majority of the staff at the clinic would be providing counseling to patients. The SCOV notes the importance of an integrated treatment approach for addiction treatment, and that the counseling is only a part of the overall treatment plan under a physician’s supervision. If applicant proposed a free-standing counseling center, without medical treatment, it might be different. But, the SCOV concludes, just because treatment includes counseling doesn’t mean it becomes a social-services establishment. The school district loses on the “change of use” argument.

Second, the school district thought there should be a traffic analysis on the clinic, but the City and the trial court disagreed. The DRB decided the clinic wasn’t in South Burlington’s Traffic Overlay District (“TOD”), where this sort of thing would ordinarily be required, and that there was no need for traffic analysis. The trial court agreed, even though it noted that the clinic was in fact physically located within the TOD, because the previous tenant in applicant’s space was also a “medical office.”

The SCOV finds little guidance in the zoning regs for this question, though it does find a statement in the traffic -nalysis section that says that the type of use is more important than the business occupying the space. We’ve already determined that applicant wants to have a “medical office” in the space, just like its predecessor, so the traffic analysis requirements stay dormant. The language of the whole of the regulation supports this interpretation, and the SCOV again agrees with the trial court.

Third, the school district lost on its argument that the City should have considered “safety concerns,” what with the traffic, impaired driving, and crime the school district thought was an inevitable result of dropping a methadone clinic next to a junior high and high school. This is the school district’s weakest argument, and the SCOV quickly dismantles it.

The South Burlington zoning regs say that their purpose is to promote the community’s health, safety, and welfare. There’s nothing else in the regs that requires deeper inquiry into an application on the basis of safety concerns. The vague purpose statement doesn’t even begin to create an enforceable standard, nor does it give property owners any kind of notice that this wouldn’t be an allowed use if the City thought it wasn’t safe. The SCOV really doesn’t favor interpreting land-use regulations to give a municipality “unbridled discretion” to pick and choose when to enforce the rules.

The school district’s last gasp at this argument is to cite to a line of cases from the opposite coast (never a good idea) about a constitutional provision that gives the California alcoholic beverage control agency the right to deny a liquor license if it’s contrary to “public welfare or morals.” Sorry school district, the SCOV says—Vermont ain’t California (and thank the gods, I might add).

I have to wonder whether some of the school district’s students won’t have the opportunity in the future to visit their alma mater as they seek treatment. Vermont does have a rather nasty drug addiction problem, as our illustrious governor noted at great length in his State of the State address earlier this year. At any rate, South Burlington residents can rest assured after today’s case that if they decide to open up an addiction-treatment clinic in their basement, as long as they just evicted a medical office, they won’t have to answer to the safety police.

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