Reiterating the commercial aspect of True North Wilderness Program, attorney David Grayck urged the District 5 Environmental Commission not to amend or modify its denial of a permit to True North.

At the end of December the District 5 Environmental Commission denied True North an Act 250 permit (after the fact) to run its wilderness therapy program on a tract of privately held land off Dana Hill Road in Waitsfield and on adjoining state forest lands off Dana Hill. True North is a wilderness therapy program for teens and young adults. True North is recognized by the state of Vermont as a school and as a residential therapy facility.

The denial found that the project did not comply with Waitsfield’s Town Plan and that the commercial aspect of the business made it inappropriate for both zoning districts for which it was proposed. True North had been operating on land in both the forest reserve district and the agricultural/residential district.

True North works with groups of students and counselors who spend seven to eight weeks camping either on private land or on the Howe Block of Camel’s Hump State Forest. The program operates year round with students using tent platforms and composting toilets in the winter months.

True North sought permission to operate on 25 acres of land using two tent platforms, two composting toilets and a 20-foot-diameter yome – all of which were in place prior to the application. True North also sought to construct a third composting toilet. The land is located in the town’s agricultural/residential and forest reserve zoning districts.

Attorneys for True North filed a motion to alter that decision, in particular the finding that True North’s uses were not in conformance with Waitsfield’s Town Plan.  True North’s attorney Geoffrey Hand wrote a detailed response, arguing that the commission erred in that ruling and that Waitsfield’s Town Plan is designed to provide guidance rather than regulate and further that the Town Plan was ambiguous with regard to the True North project. Because they are ambiguous, he argued, those provisions cannot be given the “legal force of zoning laws.”

Hand also pointed out that the Waitsfield Development Review Board has granted True North a permit.

Grayck, who represents adjoining landowner Kinny Perot, filed a response this week that urges the commission to uphold its decision and provides a detailed legal analysis of how and why the Waitsfield Town Plan does have the strength of regulation versus guidance.

He details the commercial nature of True North’s business noting, “True North Wilderness Program is a commercial business operation which provides, at a substantial cost, a mental health, therapeutic service to its clients, with the services provided by properly qualified, trained mental health professionals.”

He argued that the fact that the wilderness therapy takes place outsides does not make the program an outdoor recreation facility or activity and he lists the allowed and conditional uses in both the agricultural/residential zoning district and the forest reserve district, concluding those uses are incompatible with True North proposed uses.

In his legal analysis, he cites a U.S. Supreme Court case wherein the high court upheld a lower court ruling that a village (Euclid, Ohio) could create specific zones and specify allowed uses in those zones. In comparison, he cited a Vermont Supreme Court case, re Molgano, involving the town of Manchester.  Manchester’s Town Plan attempted to put development in certain locations and avoid it in others, but did not do so in language that was  “broad, non-regulatory language,” which was “at best, ambiguous regarding why such types of transient commercial uses are included in the plan,” according to the decision.

He continued with the example of a case in Shelburne where the town contested an Environmental Board decision permitting a subdivision. In that case, the Vermont Supreme Court upheld the Environmental Board’s decision arguing that plain and ordinary meanings must be applied to how town and regional plans are applied in Act 250.

Grayck also cited a Waitsfield land use case that went to the Vermont Supreme Court and also resulted in the Legislature amending the wording of Act 250’s 10th criteria which deals with conformance with state and local plans and ordinances.

The Waitsfield case is the Kisiel case which involved a subdivision where a permit was granted but the applicant objected to the conditions. The applicant received an Act 250 permit which both the town and applicant appealed. The Vermont Environmental Board denied the project and the Vermont Supreme Court overturned the decision.

At issue was the wording “should be discouraged” in Waitsfield’s Town Plan. The court found that such wording was a “nonregulatory abstraction” and overruled the Environmental Board.

“It is now readily accepted and understood that a project cannot be denied where a Town Plan merely ‘encourages’ or ‘discourages’ certain activities. Rather a Town Plan must use the word ‘shall’ or provide for an exclusive list of uses to pass the test for enforceability under Criteria 10,” Grayck wrote.

Another part of the Kisiel decision that the Supreme Court wrote was that, as it was previously written, Act 250 was to show deference to decisions of the local land use authority. The Legislature changed that and amended Act 250’s 10th criteria so that Act 250 reviews no longer had to defer to town positions on whether projects do or don’t conform to the Town Plan.

Thus, Grayck continued, the fact that the Waitsfield Development Review Board issued True North a permit did not need to be considered or deferred to by the District 5 Environmental Commission when reaching its own conclusion on Criteria 10.