In re Bennington School, Inc.; Vermont Supreme Court

Bennington School operates a campus program and a number of community group homes for boys and girls with serious learning and emotional difficulties. When they sought to open a new group home in the town of Bennington, Vermont, they were told that they had to seek a conditional use permit, the grant of which was discretionary with the Town. The Town said that despite a 25 year old law that appeared to allow group homes for people with developmental and physical disabilities to be sited in residential neighborhoods, Bennington School was primarily a "school" - schools required conditional use permits. The Town agreed for the purpose of the one case only to consider Bennington School's students as "developmentally disabled," even though they would not generally be considered to fall with that category of disabilities. Bennington School lost their case at the trial court level, then retained Attorney Margolin to appeal to Vermont's highest court. The Vermont Supreme Court reversed the lower court, ruling that an inquiry into what programs the operator of a group home might conduct other than the group home, was not warranted by the relevant statutory language. The Vermont Supreme Court declined, however, to address the issue of whether providing statutory protection only for people with developmental or physical disabilities who needed group homes, unlawfully discriminated against other individuals with disabilities such as developmental disabilities or mental illness. Attorney Margolin and his client considered challenging the limited Vermont law in federal court. Instead, they organized a successful legislative strategy - that strategy is discussed in the "Non-Litigation Cases" section within the "Non-Profit Corporations" portion of this web site.

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