Definitions matter

By Andy Delaney

‘Twas a relatively busy week at SCOV. Three opinions issued on Friday, May 2. And one entry order on April 24. 

We’ll start with the entry order. This one’s fairly straightforward. Respondent had a professional responsibility complaint filed against her. Though she spoke with disciplinary counsel about it, she didn’t file a response. Disciplinary counsel followed up several times, gave a few extensions, and eventually said something along the lines of: “Look. You need to respond or I’m going to file a motion to suspend your license.” Anyone care to guess what didn’t happen and what then happened as a result? Disciplinary counsel files the motion and SCOV suspends respondent’s license. The moral of the story? Respond if you don’t want to be a respondent. In re McCarthy, 2025 VT 23 (mem.)

The first opinion from Friday covers the definition of a nursing home. Some neighbors appeal a zoning permit for what might be a nursing home and what might be a multifamily dwelling unit. And that’s really the crux of it. The environmental division concluded that applicant’s proposed senior living facility was a multifamily dwelling unit rather than a nursing home. The majority reasons that the trial court’s application of the nursing home definition was wrong when it comes to the memory care unit and more factual development is needed on that point. Specific to the memory-care unit, the majority opinion also notes something about kitchens, and cooking, and definitions in the zoning. Bottom line is this one gets kicked back for further fact-findin’ and law-concludin’.  

Justice Waples, joined by Chief Justice Reiber, concurs, noting that there was a question that got lost in the shuffle and applicant had raised a Fair Housing Act question earlier. The concurrence would allow the parties to present new evidence on this Fair Housing Act question during the remand. In re Dousevicz, Inc., 2025 VT 22.

After a jury trial, Stacey Vaillancourt was convicted of involuntary manslaughter and cruelty to a child with death resulting. She appeals. 

SCOV concludes there was sufficient evidence for the jury to conclude that Vaillancourt, an experienced daycare provider, administered diphenhydramine (Benadryl) to six-month-old HB in her care, leading to HB’s death. SCOV rejects appellant’s arguments that the verdicts were inconsistent, violated double jeopardy, or that the trial court erred in admitting short videos of the child as evidence. SCOV affirms. State v. Vaillancourt, 2025 VT 20.     

In a throwback special-guest opinion, retired Justice Dooley pens a majority opinion about raising rents at airport hangars. There are so many bad puns to be thrown down here that I’m not using. You’re welcome. Essentially, when the Agency of Transportation (AOT) reviewed rents and doubled (in some cases; close in others) rents, well, a few tenants, understandably, took some issue with that. Tenants appealed the raise to the Transportation Board and argued that the AOT didn’t follow the lease terms and that the rent hike was arbitrary, like picking numbers out of a hat (but less fun). The Board went for AOT’s position. Tenants appeal. 

In a judicial tour de force (I’m only being half-facetious here—we’ve got block quotes, footnotes, and even a little bit of snark), the majority concludes that the Board was correct in concluding that AOT was permitted to consider changes to market value and maintenance costs outside of the prior lease term in setting rents. But whether it was fair—on the how-AOT-got-to-the numbers front—didn’t make it into the analysis. So, the majority sends it back to the board for further findings.

Justice Waples dissents. She starts it off with a line from a Dooley dissent: “Where we have ‘not had the benefit of briefing and argument’ on an issue, we should not decide it.” Justice Waples reasons that the state had sufficient justification of fairness in its rent calculations and would not remand.  In re State Airport Hangar Lease Disputes, 2025 VT 21.