2014 VT 60


In re Howard Center Renovation
Permit (2013-463)
 
2014 VT 60
 
[Filed 13-Jun-2014]
 
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@state.vt.us 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.
 
 

2014 VT 60 

 

No. 2013-463

 

In re Howard Center Renovation
  Permit


Supreme Court


(South Burlington School District, Appellant)


 


 


On Appeal from


 


Superior Court, 


 


Environmental Division


 


 


 


March Term, 2014


 


 


 


 


Thomas
  G. Walsh, J.


 

Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn & Blackman, P.C., Burlington, for
Appellant.
 
Franklin L. Kochman
of F.L. Kochman, Inc., Burlington, for Appellee.
 
Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General,
  Montpelier, for Amicus Curiae HowardCenter, Inc.
 
Arline P. Duffy and Eric S. Miller
of Sheehey Furlong & Behm
P.C., Burlington, for Amicus
  Curiae Vermont Council of
Developmental and Mental Health Services, Inc.
 
William H. Sorrell, Attorney General, Montpelier, and Bessie
Weiss, Assistant Attorney
  General, Burlington, for Amicus
Curiae Vermont Department of Health.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Robinson and Crawford, JJ.
 
 
¶ 1.            
SKOGLUND, J.   South Burlington School District
(District) appeals from an environmental court decision approving Howard
Center, Inc.’s application for interior renovations to an existing medical
office to accommodate a new methadone clinic.  The District contends the
court erroneously concluded that: (1) the clinic was a permitted “medical
office” use under the South Burlington Land Development Regulations and therefore
did not require site-plan or conditional-use review; (2) the Traffic Overlay
provisions of the Regulations did not apply to the permit application; and (3)
general safety concerns were not a permissible consideration under the
Regulations in reviewing the permit application.  We affirm.
¶ 2.            
The material facts are not in dispute.  For a number of years,
Howard Center has operated two out-patient clinics that provide medically
supervised methadone and buprenorphine maintenance treatment for those with
opioid dependence: one, which has operated since 2002, is located at the
University Health Center (UHC) on South Prospect Street in Burlington, and the
other, since 2011, at the office of the former Twin Oaks Counseling Service in
South Burlington. 
¶ 3.            
As part of a plan to relocate the Twin Oaks office and reduce the
patient load at the UHC office, Howard Center entered into a lease for about
10,000 square feet of office space in an existing medical office on Dorset
Street in South Burlington, and the following month submitted a building-permit
application for interior renovation of the office space.  The office is
situated within one of several buildings on a 2.2-acre parcel and is part of a
multi-unit, multi-use development originally approved by the City as a Planned
Unit Development (PUD).  The property lies within the City’s Central
District 2 (CD 2) zoning district, in which “Office, Medical” is a permitted
use.  Land Development Regulations (2012) (Regulations),
app. C.     The Regulations define the latter as
“[a]ny establishment where human patients are
examined and treated by doctors, dentists or other medical professionals but
not hospitalized overnight.”  Regulations § 2.02.   

¶ 4.            
As the trial court found, Howard Center plans to use the renovated
office for “the medication assisted treatment of patients suffering from opioid
dependence.  As part of this treatment, physicians and nurses will perform
medical examinations and administer methadone or buprenorphine to the
patients.”  A patient must be diagnosed with opioid addiction to receive
treatment, which also entails mandatory individual and group counseling. 
The treatment of substance-abuse disorders in Vermont, the court noted,
generally follows a “whole-patient approach,” involving the “the use of
medication, in combination with counseling and behavioral therapies.” 
Clinic staff will thus include several nurses and lab technicians, at least ten
substance-abuse clinicians, case managers, and a consulting psychiatrist and
psychologist—all under the direction of a licensed physician serving as the
clinic’s medical director.      
¶ 5.            
The City’s zoning administrator granted the renovation permit, finding
that site- plan review was not required under the Regulations because the
proposal was solely for interior renovations of a permitted medical-office use
and did not involve any “new use, change in use, or expansion of use” under the
Regulations.  Regulations §§ 14.03.A(1),
14.03.B(5).  In response, the District—which administers a middle school
and high school located approximately 500 and 1000 feet respectively from the
proposed clinic—appealed the permit approval to the South Burlington Design
Review Board (DRB).  The District questioned whether the methadone clinic
qualified as a permitted use, but the DRB found that it “will involve . . . the
examination and treatment of patients” and therefore involved no change of use
from “office, medical.”  The District also argued that the clinic was located
within the City’s Traffic Overlay District (TOD) and therefore a traffic
analysis was required prior to permit approval.  The DRB found that the
property was not located within the TOD, and that—even if it were—an analysis
was not warranted absent a change of use.  Finally, as to the District’s
claim that the zoning administrator was remiss in failing to inquire generally
“into the safety of the proposed use,” the DRB found that there was no such
requirement in the Regulations.  Accordingly, the DRB denied the appeal.   
¶ 6.            
The District thereupon appealed to the environmental court, claiming
that the clinic represented a “change of use” requiring site-plan and
conditional-use review under the Regulations, that it required a traffic-impact
analysis under the TOD regulations, and that “safety concerns relative to
traffic, impaired driving, and crime” arising from the clinic’s location were
necessary and proper considerations under the Regulations.[1]  The parties filed cross-motions for
summary judgment, and the trial court issued a written ruling in November 2013,
in favor of Howard Center.  
¶ 7.            
As to the “change of use” issue, the court rejected the District’s claim
that the methadone clinic constituted a modification or additional use as a
provider of “social services,” defined under the Regulations as an “[e]stablishment[] providing assistance and aid to those
persons requiring counseling for psychological problems, employment, learning
disabilities, and/or physical disabilities.”[2]   The court found, in this
regard, that the purpose of the clinic was to provide “medication assisted
treatment of patients suffering from opioid dependence,” that to this end
“physicians and nurses will perform medical examinations and administer
methadone or buprenorphine to patients,” and that the counseling provided by
the clinic was “an essential part of the overall treatment of patients’ opioid
dependence” under the direction of a physician.  The court thus concluded
that the use of the facility remained that of “office, medical” within the
meaning of the Regulations as an establishment where “patients are examined and
treated by doctors, dentists or other medical professionals,” and therefore no
conditional-use or site-plan review was required.    
¶ 8.            
The court further concluded that, regardless of whether the clinic was
physically within the Traffic Overlay District, the traffic regulations were
not triggered by a permit seeking only interior renovations with no change of
use or PUD amendment.  Finally, the court found no basis under the
Regulations for undertaking the safety analysis urged by the
District.   Accordingly, the court entered judgment in favor of
Howard Center on its permit application.  This appeal followed.[3]
¶ 9.            
The District contends the trial court erred in concluding that the
planned methadone clinic constitutes a permitted “medical office” use requiring
no conditional-use or site-plan review under the Regulations.  Our
paramount goal in construing a zoning ordinance, like any statute, “is to give
effect to the legislative intent.”  In re Bjerke
Zoning Permit Denial, 2014 VT 13, ¶ 22, ___ Vt. ___, ___ A.3d ___
(quotation omitted).  “Thus, we construe 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).  
¶ 10.         Because
a “majority” of the staff at the clinic will provide mandatory substance-abuse
and other behavioral counseling, the District maintains that it meets the
definition of “social services” as an establishment providing “counseling for
psychological problems,” and therefore represents a new or additional use
requiring conditional-use and site-plan review.  The record evidence was
clear and uncontroverted that the counseling therapies provided by the clinic
are part of a patient’s overall treatment plan, which generally entails a
threshold medical diagnosis of opioid dependence, initial assessment and
physical examination by medical staff, daily administration of methadone or
buprenorphine administered by nursing staff, periodic testing to calibrate
proper dosage, detect side effects, and monitor compliance, and coordination of
care with other medical providers in the community—all under the supervision of
an on-site physician.     
¶ 11.         In
light of this evidence, we agree with the trial court that the clinic does not
constitute a “social services” establishment—instead of or even in addition to
a “medical office”—merely because treatment includes a counseling
component.  Mental health counseling is an integral component of many
medical specialties and practices providing integrated health-care services,
and the record is devoid of any evidence of the City’s intent to compel
conditional-use or site-plan review under the “social services” rubric for each
and every medical office that integrates patient counseling.  See In re
Lashins, 174 Vt. 467, 469, 807
A.2d 420, 423 (2002) (mem.) (observing that we prefer a “construction that implements the
ordinance’s legislative purpose, and, in any event, will apply common sense” to
the construction) (quotation omitted)).[4]   
¶ 12.         To be
sure, a substance-abuse or other free-standing clinic engaged in counseling
without the extensive on-site medical personnel and treatment protocols
provided by the Howard Center clinic might present a different question.
 As other courts in similar circumstances have concluded, however, the
comprehensive methadone treatment provided by the clinic at issue here
plainly constitutes a permitted medical-office use within the district, and did
not require site-plan or conditional-use review under the Regulations. 
See, e.g., Village of Maywood v. Health, Inc., 433 N.E.2d 951, 953, 955
(Ill. App. Ct. 1982) (holding that methadone clinic combining methadone
maintenance, detoxification, and individual and group therapy services by staff
of doctors, nurses and counselors constituted permitted office use by “health
practitioners”);  Discovery House, Inc. v. Metro. Bd. of Zoning Appeals
of Marion Cnty., 701 N.E.2d 577, 578-80 (Ind. Ct.
App. 1998) (holding that proposed methadone-treatment clinic—whose in-house
staff included physicians, nurses, and pharmacists and which provided medical
examinations, laboratory analyses, and individual and group counseling under
medical supervision--constituted permitted medical out-patient facility under
zoning regulations); THW Group, LLC v. Zoning Bd. of Adjustment, 86 A.3d
330, 337 (Pa. Commw. Ct. 2014) (rejecting neighbors’
claim that proposed methadone clinic failed to qualify as permitted “medical
office” use based on trial court finding that clinic provides “treatment of
patients” by staff of doctors, nurses, and counselors within meaning of zoning
ordinance).  Accordingly, we find no basis to disturb the trial court’s
ruling. 
¶ 13.         The
District also argues that the trial court erred in concluding that, absent a
change of use, Howard Center’s application for interior renovations did not
trigger the need for a new traffic-study analysis under the TOD section of the
Regulations.[5] 
The argument fails.  As the trial court observed, although the TOD section
contains no express statement of how a traffic review is triggered, guidance
may be found in “the purpose of the TOD and its traffic review factors.”
 The TOD provision states, in this regard, that it seeks “to provide a
means by which the allowable uses [within the Traffic Overlay District] . . .
may be regulated . . . based on traffic generated and impacts on City access
management goals.”  Regulations § 10.02.A. 
The section provides that traffic generated by a use shall “not exceed the maximum allowable traffic generation,” or
“traffic budget,” which is “calculated by multiplying the size of the lot by
the maximum traffic generation rate.”  Regulations § 10.02.F(1). 
Guidelines set forth in the Regulations for estimating the allowable traffic
generation counsel the use of a “primary measurement,” such as “for office
buildings the floor area” or other “easily verifiable [factor] . . . related to
the land use type, not to the characteristics of the tenant/operator.”  Regulations, app. B, § B.2.     
                   
¶ 14.         As
the trial court explained, the TOD’s reliance on “primary” measurements and express
disregard for the “characteristics of the tenant/operator” in determining
allowable traffic rates support the conclusion that an application for interior
renovations designed to accommodate a new tenant with the same permitted
use—without any change in lot size or “land use type”—does not trigger a new
traffic analysis under the TOD.  The trial court’s construction is
supported by the language of the provision as a whole, and we thus find no
basis to disturb it.  See 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)).   
               
¶ 15.         The
District lastly contends the trial court erred in concluding that a review of
the District’s safety concerns arising from the proximity of the clinic to its
middle and high schools was not authorized under the Regulations. 
 The contention is unpersuasive.  The City’s authority was confined
to the express provisions in the Regulations, strictly construed in favor of
the landowner, with any ambiguity resolved in the landowner’s favor.  In
re Toor, 2012 VT 63, ¶ 9, 192 Vt. 259, 59 A.3d
722; see also 24 V.S.A. § 4448(a) (providing that municipality’s zoning
officers must “administer the bylaws literally”).  Here, as the trial
court correctly noted, the Regulations contain no provision of any kind
authorizing a broader review of an application for interior renovation
otherwise exempt from conditional-use, site-plan, and TOD approval.  
¶ 16.         The
District also relies on the Regulations’ introductory “purpose” statement, to
the effect that the goal of the Regulations is “to promote the health, safety,
and general welfare of the community.”  Regulations §
1.01.  We reject the argument, as that section does not even
purport to establish an enforceable standard for evaluating zoning permits of
this nature, much less a standard which provides adequate notice to property
owners and guidance to municipal decisionmakers.
 See In re JAM Golf, LLC, 2008 VT 110, ¶ 13, 185 Vt. 201, 969 A.2d
47 (holding that zoning ordinance must specify sufficient standards “to guide
applicants and decisionmakers,” and will not be
enforced where it fails to do so and thereby leaves “unbridled discretion” to
administrators and courts charged with its interpretation).  The line of
California cases cited by the District is equally unpersuasive, as they concern
a constitutional provision specifically vesting that state’s department of
alcoholic beverage control with the authority to deny, suspend or revoke any
liquor license if it “determine[s] for good cause that the . . . continuance
of such license would be contrary to public welfare or morals.”  Kirby
v. Alcoholic Beverage Control Appeals Bd., 498 P.2d 1105, 1107 (Cal. 1972)
(quoting Cal. Const., art. 20, § 22)).  No such provision is at issue
here.  Accordingly, we find no basis to disturb the trial court
judgment.  
Affirmed.
                                   
 

 


 


FOR THE
  COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 





[1] 
A “change of use” under the City’s land development regulations is defined as
“[t]he modification of a use of a building or land, or the replacement of a use
of a building or land with another use or uses, or the addition of a use or
uses to a building or land, or the cessation of a use or uses of a building or
land.”  Regulations § 2.02.  
 


[2]
 “Social services” is a conditional rather than a permitted use within the
CD-2 district where the clinic is located.  Regulations,
app. C.  Conditional-use review is required prior to issuance of a
zoning permit for uses listed as conditional.  Regulations
§ 14.10.C.   
 


[3] 
In addition to the briefs of the parties, amicus curiae briefs in support of
appellee Howard Center were filed by the Vermont Department of Health, the
Office of the Defender General, and the Vermont Council on Development and
Mental Health Services, Inc.  The Council’s brief focuses on whether
denial of Howard Center’s application would violate provisions of the Americans
with Disabilities Act and the Rehabilitation Act of 1973, issues we need not
consider in view of our decision affirming issuance of the permit.  The
briefs of the State and the Defender General emphasize the critical need for additional
methadone treatment facilities in Vermont, a need which all parties
here—including appellant—have acknowledged but which, again, did not factor
into our analysis or decision.        
 


[4] 
On the integration of physical and mental health care services, see, e.g., J.
Cassidy, et al., Behavioral Health Care Integration in Obstetrics and
Gynecology, Medscape General Medicine (2003) (noting the increasing need
for “inclusion and integration of services that identify, treat, and medically
manage behavioral health issues in the practice of obstetrics and gynecology”);
D. Walcott, et al., Supportive Oncology: New Models for the Role of
Psychiatry in Cancer Care, 11 Focus No. 4 (Oct. 1, 2013) (surveying the
variety of new organizational models for providing integrated supportive
behavioral-health services for cancer patients).   


[5] 
As originally approved and subsequently amended, the large commercial PUD in which
the clinic is located was subjected to both parking and traffic review and
analysis under the Regulations governing PUDs.  Regulations
§§ 14.05, 15.05, 15.08.   



