town of bennington zoning board of adjustment minutes 1 veterans memorial drive, bennington, vt 05201 MARCH 8, 2000 @ 7:30 p.m. Present: Ron Alderman, Richard Owens, Jim Gulley, Bill Barney, Edith Prandini, and Kevin Goodhue. Excused: Bill Congdon and Gale Wisher. Also present: Zoning Administrator Daniel Monks, Matthew Merritt, Lon McClintock, Katrie Fenster, Mike von Ouhl, Ronald F. Myers, Larry Moffit, Bob Moffit, Carolyn Morse, Robyn Baker and about twelve additional members of the community. The meeting was called to order at 7:30 p.m. 1. Minutes of February 23, 2000. Mr. Goodhue moved to accept the minutes of February 23, 2000 as presented. Mr. Owens seconded the motion. The motion passed with five in favor. Mr. Barney abstained, as he was not present. 2. Reading of witness' oath. Mr. Gulley explained that there is a witness sign up sheet that must be signed if someone wishes to give testimony or submit evidence to the Board. He read the oath: "I solemnly swear and affirm under the pains and penalties of perjury that the statement I make, the testimony I give, and other evidence I submit to the Zoning Board of Adjustment at the Board's public hearing held on this date shall be true and correct to the best of my knowledge and belief." 3. Bennington School, Matthew Merritt, Gerald Maxon, 13 Settlers Road, appeal of Zoning Administrator's decision that proposed use of residence to house 6 Bennington School students is a Residential Care Facility under the Bylaw. Sections of the Bylaw applicable: 1.4, 1.18, 1.19, and 4.1. Matthew Merritt, Lon McClintock, and Katrie Fenster, were present for the applicant. Mr. McClintock noted that Bennington School has entered into a purchase and sale agreement for property at 13 Settlers Road. He feels that the proposed use is a group home, which is a permitted use under the Bylaw, not a residential care facility, which is allowed as a conditional use, which requires review. Mr. McClintock felt that there was no definition of group home or residential care facility in the Bylaws or Vermont Statutes. Mr. McClintock distributed a packet or information to the Board. He feels that there is a difference between group home and residential care facilities, which is the intensity of the use of the property. Vermont Statute considers residential care facilities to apply to things like nursing homes. Mr. McClintock could not find a statute with the term group home. Also distributed were documents showing that the school is licensed by the state of Vermont to provide special education services. It is also licensed by Social and Rehabilitative Services for the purpose of providing residential care for children. Mr. Alderman noted that when a use is not specifically defined, then it is typically not allowed. Mr. McClintock noted that this is a year round school with two academic campuses, the boys on Fairview Street and the girls on Mattison Road. The 13 Settlers Road location is a one-acre parcel with a single-family residence. They intend to house six or fewer girls or boys, one or the other. There are no changes to the structure planned. As it is laid out it meets the school needs. Fire alarms would be installed and other safety regulations would be met. The exterior of the building would be maintained as it presently exists. There will not be any signage. All of the children will have had a clinically determined developmental disability that affects their ability to learn in a school setting. All children will be on Individual Educational Plans. Mr. McClintock reviewed a typical student's day. They attend school during the daytime, and return home between 3 and 6 p.m. Two staff members are responsible for their supervision. Lights out is at 9:00 P.M., and one night awake staff is with the student while they are sleeping. No staff member lives at the residence. Day staff arrives in the morning. Evening staff assists in the evening. None of the students will be at the Bennington School based on a referral for juvenile delinquency or being a juvenile offender. Students have been deemed "at risk" and are not doing well in a conventional school setting. If they display adequate adjustment, then they are eligible for placement at a group home. If a student presents a risk to themselves or others, then Bennington School would not be an appropriate placement. Parking would look like any other single-family residence. Staff would have their own vehicles. There might be two vehicles and the school van present at any one time. They do not honor conventional vacation times. Some students go home on scheduled holidays or long weekends. The average student age is 12 13 years old, but they go up to age 18. Mr. Alderman noted that they do not mix students by gender because the students have enough "on their plate." Mr. McClintock noted that generally teenagers get very preoccupied with their social lives. In order to help these students stay focused on school and home environment, they do better if they are not in a coeducational environment. Mr. McClintock explained that the definition of group home is a "state licensed or registered residential care home or group home, not providing secure care serving not more than six persons developmentally disabled or physically handicapped." He noted that the definition for a residential care facility is a facility that provides shelter, education or rehabilitation services or who may be mentally or physically handicapped, serving not more than six students or physically handicapped adults. Section 4.11. Section 1.4 addresses single family dwelling. Mr. McClintock explained that this is not a secure facility. Mr. McClintock noted that the children are not allowed to come and go as they please, as most children are not. Mr. McClintock noted that the average graduation time is between 12 to 18 months, while most students are closer to 18 months than 12. There is a kitchen at the residence, and they will eat at the home and on campus at lunchtime. Mr. Goodhue asked about weekends. Mr. McClintock explained that the students might leave the facility with a member of the staff or as a planned activity that is arranged and approved by the staff. There are other homes, Frost House, in the Village of North Bennington, and another on Vail Road that was approved several years ago. Mr. Goodhue felt that they should define behavioral problems. Mr. McClintock felt that all teenagers were apt to break rules and need to be reined in. These students cannot survive academically in a traditional school setting. More focus and attention is paid on their educational needs. There is a very specific group of the population that is suitable for the group home. Mr. Goodhue asked what happens if a student leaves at 11 p.m. without permission. Mr. McClintock explained that they are mandated to report to the police if a child leaves the facility without permission. Immediately call police regardless of where child goes. Other staff members are notified to help find the students. Procedures are in place to find the student, and other children would not be left alone. Mr. Merritt informed the Board that some of the students have jobs within community, and others can obtain permission to walk to a movie, etc. Ms. Prandini reviewed the letter that states that admissions are referred by the state, and asked if the referral came from the court or SRS? Mr. McClintock noted that students are from 8 to 10 different states. He explained that there is a family court that acts like a criminal court, and another that intervenes with students who are abused or neglected or at risk. Ms. Prandini asked how many students live at the Vail Road property, and Mr. Merritt noted that the staffing is the same, usually a 3- 1 ratio, with one night awake staff person. The Fairview Street location has a lot more students. Mrs. Prandini noted that she lives between Vail Road location and the mansion, and she feels that they have been good neighbors. Mr. Alderman asked, and Mr. McClintock noted that he is not mandated to call the police immediately if his own child is missing. Mr. Alderman felt that group home is defined under one-family dwelling in Section 1.4. Mr. McClintock explained that group home and residential care facility are used interchangeably in the by-laws. Mr. Alderman explained that group homes do not provide secured care, and Mr. McClintock did not feel that they are providing secured care. There was a discussion about secured facilities. Mr. McClintock explained that there are no bars, etc., and Mr. Goodhue felt that if you cannot come and go as you please, then it is a secured facility. Mr. McClintock felt that no home would qualify as a group home under that condition. He felt that the intent was that there are some group homes and residential care facilities that must be permitted uses, and there are others where the town is allowed to have a higher degree of discretion in the terms of activities that will be allowed. He did not feel that there are clear definitions in the Bylaws or the statutes. Mr. Gulley asked McClintock to explain duties of night awake staff. Mr. Merritt noted that the responsibility of the night awake staff is to do timed head counts on all students and to make sure students are safe. Mr. Gulley asked about the external structure modifications that would be necessary to meet state fire and safety codes. Mr. Merritt explained that they are life safety codes. Mr. Merritt noted that it might require direct egress from bedrooms or installation of a sprinkler system. On Frost house they put in doors to the bedrooms. Mr. Gulley asked about the external doors on the bedrooms, and Mr. Merritt noted that they would install motion alarms on the doors. Mr. Gulley felt that was a means of preventing a person from leaving facility. Mr. McClintock could not think of a residential or group home in the community that does not have staff awake and checking on the individuals. This was not meant to confine people, but to protect them. These children do not have motion detectors to protect the neighbors, but to make the students are looked after. The security is for the people on the inside, not the outside. Ms. Prandini asked Monks if foster homes were group homes. Mr. Monks noted that they are not reviewed. Mr. Goodhue noted that foster homes do not have alarms on the doors. Mr. Merritt noted that a lot of students go to foster homes on vacation if they do not have a home resource. Ms. Fenster explained that on typical weekends, students get up later, the staff teaches life skills every moment of the day. Weekends are more relaxed, students help make brunch and do chores, go on hikes, to museums, to the lake in the summer, dinner, television, homework, etc. is done in teaching mode. They practice daily living skills throughout the day. Mr. Myers owns the property next door, and stated that he believes that this should be reviewed under section 1.19, secure care facility, because these students cannot come and go as they please. Mr. Myers noted that he has a petition from the neighbors. Mr. Monks noted that the petition would only be relevant if this is determined to be a conditional use. Most of the members of the audience indicated that they signed the petition. Mr. Myers is very concerned about this facility, because it will change the character of the neighborhood. He is concerned about protecting himself and his family. Mr. Goodhue asked and Mr. Myers noted that he is opposed because of safety issues. Mr. Barney asked about Mr. Myers fears. Mr. Myers noted that these are young adults with behavioral problems. They are non- violent or they would not be in the facility, but they are not sure of this. Carolyn Morse addressed the Board. She also expressed her opposition to the project. She does not feel that this will be a residence, and she fears that it will detract from her property value. She feels that this does not fit the home neighborhood. Ms. Morse reported that all of the deeds on this street have restrictions which require that the premises shall be used for residential purposes only, no commercial or industrial uses shall be permitted, and no noxious or offensive activity or other nuisance shall be carried on or permitted. Ms. Morse does not feel that this is an appropriate place for this use. Ms. Prandini asked if this was a commercial or residential use. Mr. Monks noted that it depends upon the definition, but noted that the deed covenants should not have relevance with regard to the appeal of his decision. Ms. Prandini felt that this could be a permitted use. Mr. Monks noted that he determined the proposed use to be a residential care facility, and the applicant asked for it to be considered a permitted single family dwelling. A residential care facility is allowed as a conditional use. Ms. Prandini asked if the applicant comes back and said this is a residential care facility, they would have to come for conditional use approval, and Mr. Monks explained that they would. If they say that this is not a residential care facility, then Mr. Monks noted that they would still need a permit, but not conditional use approval. Mr. Monks would have discretion whether to send it to the Planning Commission for review. The deed covenants might have impact if this was a conditional use review. Bob Moffit owns two lots on Settlers Road, one across from the Maxon property, and one across from Mr. Myers. His explained that his deed has the same stipulations as Mrs. Morse's deed. Mr. Myers feels that this is a secure care facility. Mr. Goodhue felt that they need to assume that all of these kids are not bad. Larry Moffitt asked about the Fun House and the Manor. He reported that several years ago, a student left the campus with a van and had a police chase through Pownal. Ms. Prandini felt that once in 20 years was not a high incident rate. Mr. McClintock noted that after they received the decision, he reviewed with Mr. Monks, and he did not feel that Mr. Monks had all of the information that the Board has available. Mr. McClintock also noted that he feels the kids will do better in the community if they have an opportunity to live in the community in a structured, safe, family type environment. Mr. Barney asked why the applicant chose this residence compared to someplace where this is a permitted use. Mr. McClintock felt that this was a permitted use in this area. Mr. Barney noted that there are areas in town where there would be no question. Mr. McClintock felt that the school was trying to provide a residential setting in a residential neighborhood. Ms. Prandini commented that this is a residential care facility because it provides shelter, education or rehabilitation services. She agreed that some of these children have behavioral problems or they would not be placed there. Students could fit under either definition. At what point is the nature or intensity such that you would classify either way? Alderman felt that intensity was the issue, and this is a residential care facility. Monks reviewed Individual Educational Plans (IEP) and Emotionally or Behaviorally Disturbed (EBD) students. Mr. McClintock briefly reviewed the classifications. Mr. Gulley asked where the students with difficult problems would be housed. Mr. McClintock noted that those students would not be placed in the Bennington School facility. Ms. Finster noted that in dormitories there is a higher staff ratio, more supervision and more structure. Mr. Merritt noted that the ratio was 3-1 depending on the number of students. He explained that in order to determine which students, there is a referral process. Students are screened, and exhibit appropriate behaviors and no criminal background. Mr. Goodhue reviewed the documents that Mr. McClintock distributed, and noted that this was a residential care facility per the SRS license. Mr. Goodhue noted that this was considered a Residential ChildCare facility Pursuant to title 33 VSA. Mr. Goodhue also noted that the form lists the ages as 10-21, and felt that there could be adult students living there. Mr. Myers reviewed the program description of Bennington School. Mr. Monks commented that once the hearing is closed, he couldn't comment any further because the Board is reviewing his decision. Ms. Prandini explained that she does not have a problem with the site, but has to agree with Mr. Monks decision because the documents all say residential care. Ms. Prandini moved to uphold the Zoning Administrator's decision to consider the use a residential care facility. Mr. Alderman seconded the motion. The motion passed unanimously. The Board took a brief recess. 4. Other Business ¨ Findings of fact and minutes were passed around and signed. ¨ Mr. Monks read the warning for the next meeting: The Town of Bennington Zoning Board of Adjustment will hold a regular meeting on Wednesday, March 22, 2000 at 7:30 p.m. in the District Court, located at One Veterans Memorial Drive, Bennington, Vermont. The purpose of the meeting will be to conduct regular business and to hold a public hearing on the following: Margaret Brown, Lincoln Street, seeking a variance of setback requirements and density requirements to construct an additional apartment at the existing four- unit apartment. ¨ Ms. Prandini noted that Randy Maxon and Muriel Palmer have appealed to the Environmental Court for both the Zoning Board of Adjustment's and the Planning Commission's decisions regarding the Breckenridge project. ¨ Ms. Prandini also asked about the empty seat on the Board, and Mr. Monks noted that interested parties should send letters of interest outlying their qualifications by March 15 to Mr. Monks or Stuart Hurd. The Select Board will consider applicants. ¨ Mr. Alderman asked about the Design Review Board, and Mr. Monks explained that it currently has no official status, but he has received word that the Select Board does plan to move in that direction. They hope that a decision will be made within the next year. ¨ Mr. Barney asked about Board organizations, and Mr. Monks noted that they take place after reappointment. There are three members of the Board up for reappointment, Mr. Owens, Mr. Goodhue and Mr. Gulley. ¨ Mr. Gulley explained that he was called to a meeting with a Selector for discussion about deliberative session. Mr. Gulley cited Vermont Statute Title1, Subchapter 2, Subsection 3.12 e and f. where deliberation is fully explained. He explained that the Zoning Board of Adjustment is a quasi-judicial system. They take testimony, cross-examine, and may discuss in open or closed session to the public. Mr. Gulley explained that the second issue was a personal one. Some members of the Board reported that they felt that his input in a closed session was inappropriate, Under Title 1, Subchapter 2, Subsection 3.10, paragraph 1. "When deliberating, we examine, discuss reasons for or against any action or decision." He feels that he was doing that and was within appropriate boundaries. Mr. Gulley offered to step down as chair of the Board. He feels that complaints should have been discussed amongst the Board. Mr. Alderman stated that he had respect for the way Mr. Gulley had been conducting meetings. Mr. Goodhue could not believe that members would go to the Select Board to complain. Ms. Prandini does not feel that Gulley should step down because he was called on the carpet for deliberative session. Mr. Alderman moved to give vote of confidence for Mr. Gulley as Chair. Mr. Barney seconded the motion. The motion carried unanimously. ¨ As there was no further business Ms. Prandini moved to adjourn the meeting. Mr. Barney seconded the motion. The motion passed unanimously. The meeting was adjourned at 9:13 P.M. Respectfully submitted, Robyn C. Baker Dated this 16th day of March 2000. _______________________ ____________________ _______________________ ____________________ _______________________ ____________________ _______________________ ____________________ _______________________