State of Vermont 

Superior Court - Environmental Division 

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E N T R Y R E G A R D I N G M O T I O N 

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

Project: Administrative Amendment authorizing realignment of subdivision 

 boundary lines (appeal filed by Mountainside 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 Appellant Mountainside 

Properties, Inc. 

Response in Opposition filed on Jan. 11, 2010, by Co-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-Applicants 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”), whereby the Court entered 

summary judgment, affirming the third Administrative Amendment to the 

Killington Resort Village Master Plan. By Entry Order filed April 12, 2010, 

this Court framed the issues presented by Appellant’s pending motion and 

asked the parties to provide further briefing on the issue. In response to 

the Court’s request, the Land Use Panel of the Vermont 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-Applicants”) filed a reply to 

the NRB’s memorandum. This Entry Order is issued to address all remaining 

issues raised in Appellant’s motion to amend. 

The Decision and April 12, 2010 Entry Order summarize the applicable 

material facts; we incorporate those factual representations by reference. 

As a source of additional clarifying facts, Co-Applicants submitted with its 

May 14, 2010 reply memorandum an affidavit from the District #1 Environmental 

Commission (“District Commission”) District Coordinator (“Coordinator”), 

William T. Burke. No party to these proceedings has refuted or contradicted 

the representations made by Mr. Burke in his affidavit. We therefore take 

those representations as undisputed and admitted, for purposes of our 

reconsideration of the parties’ summary judgment motions. See 

V.R.C.P. 56(c)(2), (b). The factual representations of Mr. Burke that are 

most applicable to our pending review include the following: 

1. The predecessor owners of the Killington Ski Resort have secured over 

fifty different Act 250 Permits in the course of developing and 
In re SP Land Co. Act 250 Permit Amend., No. 257-11-08 Vtec (Entry Order on motion to alter)(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 subject of 

Administrative Amendment #1R0835-3 were the subject of the various Act 

250 permits and amendments referenced above. Id. 

3. Rather than directing that Co-Applicants apply for an administrative 

amendment to the multiple Act 250 permits, the District Coordinator 

directed that Co-Applicants apply for an amendment of its Master Plan. 

This direction was given because the Master Plan proceedings “pertained 

to all of the lands within the Killington Resort Master Plan, including 

the lands proposed for subdivision” realignment. Id. at ¶ 3(b). 

4. Mr. Burke’s purpose in directing that the application for 

administrative amendment reference the Master Plan proceedings, rather 

than the previously issued permit proceedings, “was a purely 

administrative decision made by the District Commission 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 merit. 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 this Court 

has jurisdiction to address issues “intrinsic” to the questions posed on 

appeal). 

We further note from our earlier Decision some facts repeated by Mr. 

Burke in his affidavit: that the challenged Administrative Amendment only 

authorized a reconfiguration of the subdivision boundaries 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 applications, detailing the actual 

impacts of those developments under the relevant [Act 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 Resort lands, a 

determination had been previously rendered authorizing the subdivision of the 

subject lands. That determination was the first administrative amendment to 

the Master Plan proceedings, issued on March 29, 2004. See Decision, No. 

257-11-08 Vtec, slip op. at 3, ¶ 4. While that determination may have been 

“questionable,” as suggested by the NRB (see NRB memorandum at 2), no party 

filed a timely challenge to that determination, and Appellant has not 

challenged that 2004 determination in these proceedings. The District 

Commission’s decision, through its Coordinator, to authorize the subdivision 

of Killington lands through Administrative Amendment #1R085-1 therefore has 

become final. 

For all these reasons, we conclude that our December 1, 2009 Decision 

should not be altered. The challenged Amendment (Administrative Amendment 

#1R085-3) merely authorized a realignment of the previously approved 

subdivision of Killington lands. Appellant has provided no evidence to 
In re SP Land Co. Act 250 Permit Amend., No. 257-11-08 Vtec (Entry Order on motion to alter)(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; any impact that could occur 

will only occur if, and after, an Act 250 permit amendment application is 

filed, reviewed, and approved by the District Commission for specific 

development. Appellant or its successors in interest 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 to alter our previous 

Decision. 

___________________________________________ ___August 3, 2010___ 

 Thomas S. Durkin, Judge Date 

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Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

 Attorney C. Daniel Hershenson for Appellant Mountainside Properties, Inc. 

 Attorney Timothy M. Eustace for Appellees/Co-Applicants SP Land Company, 

LLC, MTB Killington, LLC, AMSC Killington, LLC, and SP II Resort, LLC 

 Attorneys Melanie Kehne and John H. Hasen for Natural Resources Board/ 

 Land Use Panel (FYI only)