State of Vermont Superior Court - Environmental Division

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SP Land Co., et al. Act 250 LU Permit Amendment, Docket No. 257-11-08 Vtec

Project: Administrative Amendment authorizing real ignment of subdivision boundary lines (appeal filed by Mountains ide Properties, Inc.)

Applicants: SP Land Company, LLC, et. al.

Title: Motion to Alter or Amend, (Filing No. 4)

Filed: December 15, 2009

Filed By: C. Daniel Hershenson, Attorney for Appell ant Mountainside

Properties, Inc.

Response in Opposition filed on Jan. 11, 2010, by C o-Applicants SP Land Co., LLC, MTB Killington, LLC, AMSC Killington, LLC, and SP II Resort, LLC

Amicus Curiae Memorandum filed on April 30, 2010 by Natural Resources Board/Land Use Panel

Reply in Opposition filed on May 14, 2010, by Co-Ap plicants SP Land Co., LLC, MTB Killington, LLC, AMSC Killington, LLC, and SP II Resort, LLC

___ Granted _X _ Denied ___ Other

Appellant Mountainside Properties, Inc. (“Appellant ”) filed the pending motion to amend in response to the Court’s previous Decision in the abovecaptioned appeal, In re SP Land Co. , No. 257-11-08 Vtec (Vt. Envtl. Ct. Dec. 1, 2009) (Durkin, J.) (hereinafter “Decision”), whe reby the Court entered summary judgment, affirming the third Administrativ e Amendment to the Killington Resort Village Master Plan. By Entry Or der filed April 12, 2010, this Court framed the issues presented by Appellant ’s pending motion and asked the parties to provide further briefing on th e issue. In response to the Court’s request, the Land Use Panel of the Verm ont Natural Resources Board (“NRB”) filed its amicus curiae memorandum; Co-Applicants SP Land Company, LLC, MTB Killington, LLC, AMSC Killington, LLC and SPII Resort, LLC (hereinafter collectively referred to as “Co-Applic ants”) filed a reply to the NRB’s memorandum. This Entry Order is issued t o address all remaining issues raised in Appellant’s motion to amend.

The Decision and April 12, 2010 Entry Order summari ze the applicable material facts; we incorporate those factual repres entations by reference. As a source of additional clarifying facts, Co-Appl icants submitted with its May 14, 2010 reply memorandum an affidavit from the District #1 Environmental Commission (“District Commission”) District Coordin ator (“Coordinator”), William T. Burke. No party to these proceedings ha s refuted or contradicted the representations made by Mr. Burke in his affida vit. We therefore take those representations as undisputed and admitted, f or purposes of our reconsideration of the parties’ summary judgment mo tions. See V.R.C.P. 56(c)(2), (b). The factual representation s of Mr. Burke that are most applicable to our pending review include the f ollowing:

1. The predecessor owners of the Killington Ski Resort have secured over fifty different Act 250 Permits in the course of de veloping andIn re SP Land Co. Act 250 Permit Amend. , No. 257-11-08 Vtec (Entry Order on motion to alte r)(08-3-10) Page 2

operating the Resort since 1972, and those permits have been the subject of over 300 permit amendments. Burke Aff. at ¶ 3(a).

2. The lands now owned by Co-Applicants that are the s ubject of Administrative Amendment #1R0835-3 were the subject of the various Act 250 permits and amendments referenced above. Id

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3. Rather than directing that Co-Applicants apply for an administrative amendment to the multiple Act 250 permits, the Dist rict Coordinator directed that Co-Applicants apply for an amendment of its Master Plan. This direction was given because the Master Plan pr oceedings “pertained to all of the lands within the Killington Resort Ma ster Plan, including the lands proposed for subdivision” realignment. Id . at ¶ 3(b).

4. Mr. Burke’s purpose in directing that the applicati on for
administrative amendment reference the Master Plan proceedings, rather than the previously issued permit proceedings, “was a purely administrative decision made by the District Commis sion for the sake of trying to reduce the confusing collection of permit series numbers that have accumulated at the Killington Ski Resort over the past 35 years.”
Id . at ¶ 6.

Co-Applicants also assert in their first memorandum in opposition to Appellant’s motion to alter that since Appellant’s challenge the underlying District Coordinator’s authority to issue the third Administrative Amendment, Appellants could not raise that issue in the first instance in their motion to alter. Co-Applicants’ assertion here has some m erit. However, we conclude that Appellant’s Statement of Questions is framed in a broad-enough
fashion so as to allow us the discretion to address the issue raised. See In re Jolley Assoc. , 2006 VT 132, ¶ 9, 181 Vt. 190 (recognizing that t his Court has jurisdiction to address issues “intrinsic” to t he questions posed on appeal).

We further note from our earlier Decision some fact s repeated by Mr. Burke in his affidavit: that the challenged Admini strative Amendment only authorized a reconfiguration of the subdivision bou ndaries for the land already governed by the Master Plan proceedings; it did not authorize any development on the subject property; and any future development of any of the subject lands would require that the Co-Applicants (or their successors in interest) first “file [permit] amendment applicatio ns, detailing the actual impacts of those developments under the relevant [A ct 250} criteria.” Burke Aff. at ¶ 3(c).

Lastly, we note that, in addition to all the other Act 250 permits issued in connection with the various Killington Re sort lands, a determination had been previously rendered authoriz ing the subdivision of the subject lands. That determination was the first ad ministrative amendment to the Master Plan proceedings, issued on March 29, 20 04. See Decision , No. 257-11-08 Vtec, slip op. at 3, ¶ 4. While that det ermination may have been “questionable,” as suggested by the NRB (see NRB me morandum at 2), no party filed a timely challenge to that determination, and Appellant has not challenged that 2004 determination in these proceed ings. The District Commission’s decision, through its Coordinator, to authorize the subdivision of Killington lands through Administrative Amendmen t #1R085-1 therefore has
become final.

For all these reasons, we conclude that our Decembe r 1, 2009 Decision should not be altered. The challenged Amendment (A dministrative Amendment #1R085-3) merely authorized a realignment of the pr eviously approved subdivision of Killington lands. Appellant has pro vided no evidence toIn re SP Land Co. Act 250 Permit Amend. , No. 257-11-08 Vtec (Entry Order on motion to alte r)(08-3-10) Page 3

refute Co-Applicants’ assertion that there will be no impact on any Act 250 criteria that could be a possible consequence from the limited authorization that this administrative amendment entails. Lastly , no development is authorized by Administrative Amendment #1R085-3; an y impact that could occur will only occur if, and after, an Act 250 permit am endment application is filed, reviewed, and approved by the District Commi ssion for specific development. Appellant or its successors in intere st will be entitled to notice of such proceedings, have an opportunity to petition for party status, and an opportunity to be heard on the relevant Act 250 criteria.

For all these reasons, we DENY Appellant’s motion t o alter our previous
Decision.

___________________________________________ __ _August 3, 2010

___ Thomas S. Durkin, Judge Date

=================================================== ========================== Date copies sent to: ____________ Cle rk's Initials _______
Copies sent to:
Attorney C. Daniel Hershenson for Appellant Mou ntainside Properties, Inc. Attorney Timothy M. Eustace for Appellees/Co-Ap plicants SP Land Company, LLC, MTB Killington, LLC, AMSC Killington, LLC, and SP II Resort, LLC
Attorneys Melanie Kehne and John H. Hasen for N atural Resources Board/ Land Use Panel (FYI only)