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STATE OF VERMONT 

SUPERIOR COURT ENVIRONMENTAL DIVISION

Environmental Division Unit Docket No. 60-5-17 Vtec

Highridge/Ridgetop PUD Renewal 

Altered Decision on the Merits1

Killington/Pico Ski Resort Partners, LLC, (“KPSRP” or “Applicant”) is the current owner of 

the development rights for the unbuilt portions of two adjoining developments known as 

Highridge and Ridgetop, near the Killington Ski Resort in Killington, Vermont.2 A predecessor 

developer first received municipal land use approval for the two developments in 1988. The 

planned developments were not fully completed at the time that their original planned unit 

development (“PUD”) approval expired. So now, thirty years after the original PUD approval was 

issued, KPSRP seeks to extend the latest PUD authorizing the development with its pending 

application (Application No. PUD 17-003). 

When the Town of Killington Planning Commission (“the Planning Commission”) approved 

KPSRP’s pending PUD application, the Highridge Condominium Owners’ Association (“Appellant” 

or “Highridge Owners’ Assoc.”) filed a timely appeal with this Court. After the parties engaged in 

1

 This Altered Decision on the Merits supersedes this Court’s prior June 6, 2019 Decision on the Merits. In 

response to a motion to amend the judgment pursuant to V.R.C.P. 59(e), this Court reworded Conditions 3 and 4 for 

clarity. We also made minor adjustments to Conditions 1 and 5. These changes implicate page 27 of this Altered 

Decision on the Merits. 

2

 In separate litigation originally filed in the Civil Division of the Vermont Superior Court, Rutland Unit, these 

same parties disputed the ownership and development rights in the Highridge development. There appears to be 

no dispute that the Highridge Owners’ Association has an ownership interest in the areas identified as common 

lands. However, the Owners’ Association disputed that KPSRP, as successor to the original developer, had the right 

to complete the development. 

The Civil Division originally granted summary judgment to the Owners’ Association, but the Vermont 

Supreme Court reversed that determination, concluding that KPSRP “is the successor in interest to the original 

developer with respect to development rights, and is entitled to construct the proposed additional [Highridge] units 

under the declaration of condominium . . ., without the consent of the Association.” Highridge Condo. Owners Assoc. 

v. Killington/Pico Ski Resort Partners, LLC, 2014 VT 120 ¶¶ 1, 25, 198 Vt. 44. 
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settlement discussions that did not resolve their disputes, they completed discovery and other 

efforts at trial preparation, and the Court conducted a two-day trial at the Vermont Superior 

Court, Criminal Division, Rutland Unit, on November 28 and 29, 2018. After the trial was 

completed, the parties requested thirty days to file proposed findings of fact and conclusions of 

law. That filing deadline was extended several times, at one or more of the parties’ request, such 

that the matter came under advisement for the Court’s consideration on February 6, 2019. 

KPSRP was assisted in this litigation by its attorneys, Andrew H. Maass, Esq., and Erin 

Gilmore, Esq.; Highridge Owners’ Assoc. was assisted by its attorney, Judith L. Dillon, Esq.; the 

Town of Killington (“Town”) was assisted by its attorney, Kevin E. Brown, Esq.; the Ridgetop 

Landowners Association appeared but was unrepresented; and Ridgetop owner Ely A. Kirschner 

appeared as a self-represented person. 

Procedural History 

This development has an extended permitting and litigation history. We need not detail 

that entire history to address the issues presented by the present appeal. Rather, we provide 

the following summary to assist in providing some context for the Factual Findings that follow. 

By its pending application, KPSRP seeks a further extension of the timeline for the joint 

PUD approval of the two developments known as Highridge and Ridgetop; the first PUD approval 

was granted in 1988. In connection with that initial PUD approval, the then-developer sought 

and received site plan approval, a zoning permit, and other necessary state permits to develop 

both properties. Some, but not all, of the proposed developments at both Highridge and 

Ridgetop were constructed; the individual residential units that were completed were sold to 

individual owners. 

The Ridgetop development was planned to contain nine single-family homes, with 

surrounding common lands and access roads. The Highridge development was planned to 

include residences contained in multiple-unit buildings, as well as three single-family dwellings. 

It was not entirely clear from the evidence presented at trial when the initial construction was 

completed in the Highridge and Ridgetop developments, although the Highridge Owners’ Assoc. 

president, who testified at trial, estimated that the residences now existing at the two 

developments were completed in the late 1980s and early 1990s. The Court notes that that 
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estimate coincides with an economic recession that began in the late 1980s and especially stifled 

development of second homes near and at Vermont ski resorts. 

At trial, the parties appeared to agree that currently six of the nine Ridgetop homes have 

been completed and sold and that thirty-six of the Highridge units (including the three planned 

single-family dwellings) have been completed and sold. KPSRP seeks PUD approval for the three 

remaining homes in the Ridgetop development and thirty-seven residences in proposed 

condominium buildings in the Highridge development. 

The PUD approval issued in 1988 (“PUD #88-169”) contained several conditions, including 

that its authority would last for a four-year term. It appears that this PUD approval was allowed 

to lapse. 

Then, about ten years after the initial PUD approval, KPSRP acquired all rights of the initial 

developer and thereafter filed an application for a new PUD approval for both developments. 

The Planning Commission granted that approval with conditions, including a condition that the 

new PUD approval would expire on May 26, 2003. See PUD #99-029.3 As that expiration date 

approached, KPSRP applied for a further extension of the PUD approval, which the Planning 

Commission granted with similar conditions, including that the extended PUD approval would 

expire on March 27, 2006. See PUD #02-006. Upon that date, the extended PUD approval 

expired. 

In November of 2006, KPSRP filed two new applications: the first for a new PUD approval 

(PUD Application #06-098) and the second for a new site plan approval (Site Plan Application #06-

099). Those approvals were granted by the Planning Commission on March 15, 2007. See PUD 

#06-098 and Site Plan #06-099. The PUD approval contained conditions similar to those defined 

by its predecessors, including that its authority would expire on March 14, 2011, if the 

developments were not completed as proposed. 

By the spring of 2011, it became clear that KPSRP’s plans to complete the developments 

would not be achieved by the authorization expiration date. Therefore, on March 11, 2011, 

KPSRP applied for renewals of both the PUD and site plan approvals. See Application #11-005. 

3

 Some of this procedural history has been gleaned from this Court’s Decision in a prior appeal concerning 

these same developments. See Ridgetop/Highridge PUD, No. 69-5-11 Vtec (Vt. Super. Ct. Envtl. Div. Feb. 22, 2016) 

(Walsh, J.). That 2016 Decision is referenced in more detail below. 
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Notice of a Planning Commission hearing on the renewal application, set for March 23, 

2011, was sent, but that notice only referenced a completion of the Ridgetop development. 

Nonetheless, it appears that both developments were discussed in the pending application and 

at the Planning Commission hearing. This Court noted in its 2016 Decision that Application 

#11-005 “provides that the number of units includes ‘9 Single Family Homes on [the Ridgetop 

development, identified as] the 11.31 acre parcel, and 73 units on [the Highridge development, 

identified as] the 36.64 acre parcel.’” Id. at 4. 

As noted by this Court in its 2016 Decision, the Planning Commission concluded that 

“[b]ased on the above Findings of Fact and Conclusions of Law the Killington Planning 

Commission approves, with conditions, Planned Unit Development application 11-005 by 

Ridgetop Owners Association and Killington/Pico Ski Resort Partners, LLC . . . to extend the 

Residential R-1 portions of the Highridge and Ridgetop PUD for four years.” Id. at 5 (quoting the 

Planning Commission April 6, 2011 decision). 

Appellant filed a timely appeal from that 2011 Planning Commission decision with this 

Court, including challenges to the notice prepared and sent out concerning the March 23, 2011 

Planning Commission hearing. In response to the parties’ cross-motions for summary judgment, 

the Court reached several conclusions that govern our analysis in this subsequent appeal, 

including the following: 

 The hearing notice was deficient in that it provided incomplete notice, since it 

only referenced the Ridgetop development, even though the application and 

Planning Commission testimony also pertained to expansions at the Highridge 

development; 

 Because of the incompleteness of the hearing notice, the Court remanded 

Application #11-005 back to the Planning Commission, with a direction that 

the Planning Commission provide a new hearing notice that references all 

components of the proposed developments presented in the remanded 

application, and that the revised notice be sent to all interested parties 

entitled to notice;4 and 

4

 Appellant also asserted that the 2011 hearing notice was deficient because it was not served on the 

individual unit owners in the Highridge development. This Court noted that other courts, when presented with 

similar factual circumstances, have concluded that notice sent to a homeowners’ association was sufficient notice 

upon the individual homeowners, because “the association’s officers are the owners’ fiduciaries . . . .” Ridgetop/ 

Highridge PUD, No. 69-5-11 Vtec at 7 (Feb. 22, 2016) (citing Quincy Park Condo. Unit Owners’ Assoc. v. D.C. Bd. Of 

Zoning Adjustment, 4 A.3rd 1283, 1289 (D.C. 2010)). However, perhaps in an abundance of caution, the Court 
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 The Court directed that the Planning Commission conduct “a new public 

hearing on the #11-005 remanded application . . . following appropriate notice 

to interested parties” and that the remanded application must “maintain[] the 

original filing date of March of 2011” and be reviewed for compliance with the 

zoning regulations in effect in 2011. Id. at 9–10. 

No party appealed this Court’s 2016 Decision. That Decision therefore became final on 

March 23, 2016. 

On February 1, 2017, a KPSRP official contacted the Town of Killington Town Planner (“the 

Town Planner”) to coordinate how KPSRP could initiate the Planning Commission’s review of the 

remanded 2011 application. Those two gentlemen discussed how to coordinate that remanded 

review, as evidenced by some of their email exchanges that were admitted into evidence at our 

2018 trial. See Appellant Exhibit 16. They worked on the necessary revisions to the notice for 

the hearing on the remanded application, and on March 27, 2017, KPSRP filed a revision of the 

2011 application, with additional materials to support the application to be considered on 

remand. A copy of the revised application considered on remand was admitted at our 2018 trial 

as KPSRP Exhibit I. The Town Planner accepted the revised application and supporting materials 

and assigned #17-003 to those filings, for the purpose of “record keeping and permit tracking 

purposes.”5

The Planning Commission held hearings on the remanded application on April 12 and 26, 

2017. The testimony and other evidence presented at those hearings addressed the requested 

PUD approval for completion of both the Ridgetop and Highridge developments. The Planning 

Commission specifically referenced this Court’s 2016 Decision, noting that it was conducting a rehearing of Application #11-005 and that its review would be conducted using the Town of 

Killington Zoning Regulations in effect in 2011. Those Regulations, amended and made effective 

specifically directed that the revised notice of the Planning Commission’s hearing on the remanded 2011 application 

must be provided “to each unit owner of the Highridge Condominium Owners Association as well as any other party 

entitled to notice.” Id. at 10. There was no challenge or evidence presented at our 2018 trial that the revised notice 

was deficient or that KPSRP failed to serve the revised notice on all entitled parties. 

5

 See Highridge/Ridgetop PUD Approval, No. 17-003 Decision at 1 (Killington Planning Comm’n Apr. 26, 

2017), a copy of which was filed with the Court on May 18, 2018, with Appellant’s Notice of Appeal. We regard this 

Planning Commission decision as part of the record on this appeal and hereinafter refer to it as “PUD #17-003 

Approval Decision.” 
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as of August 11, 2008, were admitted into evidence as KPSRP Exhibit C; we henceforth refer to 

them as “the 2008 Regulations.” 

The decision by the Planning Commission on the remanded #11-005 Application, as 

supplemented by the #17-003 Application materials, directed that the requested PUD approval 

be granted, subject to the following conditions: 

1. This PUD approval is for four years and shall expire on April 26, 2021. 

2. Any conditions from previous Highridge/Ridgetop PUD Approvals not specifically 

changed by this PUD approval shall remain in full force and effect. 

3. The Highridge section of the PUD shall be required to receive Site Plan Review 

Approval prior to the issuance of any Zoning Permits for construction reviewed and 

approved under this PUD. 

4. The Applicants shall consult with Killington Fire and Rescue concerning the design of 

the [Highridge] parking lot and fire hydrant locations prior to the submission of an 

application for Site Plan Review. 

5. This PUD approval shall allow the three remaining undeveloped Ridgetop lots to be 

developed in conformance with [pre-]existing PUD and Site Plan Review Approvals. 

6. The following condition from PUD Approval 06-098 is made null and void by this PUD 

Approval; “Prior to the removal of any trees from Ridgetop common land the Ridgetop 

Landowners Association shall submit a landscaping plan to the Planning Commission 

for their approval. No trees shall be removed from the common land without 

Commission approval with the exception of trees which pose an imminent threat to 

health or public safety.” 

7. This is a summary of conditions from the above Findings of Fact. Conditions contained 

in the Findings but not in the summary shall also be conditions of this approval. 

8. This PUD approval and conditions shall be binding upon the applicants and all assigns 

and successors in interest. 

PUD #17-003 Approval Decision at 7; a copy of that Planning Commission Decision was admitted 

at our 2018 trial as KPSRP Exhibit J. 

The Highridge Owners’ Assoc. filed a timely appeal from the Planning Commission’s April 

26, 2017 Decision with this Court on May 18, 2017. As noted above at footnote 3, Appellant 

attached a copy of the Planning Commission decision to its Notice of Appeal. 

Appellant filed its initial Statement of Questions on June 7, 2017. Appellant thereafter 

filed a Clarification of its Question 1, pursuant to this Court’s Entry Order of March 26, 2018. 

When read together, Appellant’s Statements of Questions pose the following legal issues: 
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1. Whether the PUD application #17-003 is in conformance with Section 240 of the 

Killington Zoning Regulations. 

1(a). Whether the PUD application #17-003 is in conformance with Section 505 of the 

Killington Zoning Regulations. 

2. Whether the PUD application #17-003 is a new application, or a re-noticing of PUD 

application #11-005. 

3. Whether the PUD application #17-003 relates back to the original filing date of PUD 

application #11-005. 

4. Whether the PUD application #17-003 can seek renewal of and rely on findings of 

the #88-169 PUD approval, which the Environmental Division of the Superior Court 

ruled had expired in 1992. 

Based upon the credible testimony and other evidence that was admitted at trial, the 

Court renders the following Findings of Fact, Conclusions of Law, and the Altered Judgment Order 

that accompanies this Altered Decision. 

Findings of Fact 

1. The Highridge and Ridgetop developments were originally conceived of in the early to 

mid-1980s as a mixture of condominiums and single-family homes located near the Killington Ski 

Resort. Both developments are accessed via High Ridge Road in Killington, Vermont. 

2. The Ridgetop development contains 11.31± acres and was previously permitted for the 

construction of nine single-family homes. Six of those nine permitted homes have been built and 

sold. KPSRP seeks authority in the pending PUD application to construct and build the remaining 

three Ridgetop single-family dwellings. 

3. The Highridge development originally contained 36.64± acres, 10± acres of which are 

located in the Ski Village Zoning District (“SV District”). All lands in the SV District were previously 

developed and are not the subject of the pending PUD application. 

4. All of the Ridgetop acreage and all of the remaining Highridge acreage is located in the 

Residential 1 Zoning District (“R-1 District”). All of the R-1 District lands within these two 

developments are the subject of the pending PUD application. 

5. The R-1 District provides for a minimum lot size of five acres. Regulations § 240.3. The 

Highridge and Ridgetop parcels each far exceed this minimum lot size. 

6. Pursuant to Regulations § 240.3, density for PUDs within the R-1 District is restricted to 

no less than 20,000 square feet of land for each dwelling unit. Based upon this density restriction, 
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we calculate that the maximum development allowed for the combined Ridgetop/Highridge 

development is as follows: 

Allowable Density:6

26.64 ac. ÷ 1 unit per 20,000 sq. ft: 58 units 

11.31 ac. ÷ 1 unit per 20,000 sq. ft: 24 units 

 Total Units Allowed: 82 units 

Proposed Density (including existing development): 

Highridge development: 73 units 

Ridgetop development: 9 units 

 Total Units Allowed: 82 units 

7. Since they were initially conceived of in the 1980s, these two developments have 

consistently been presented and approved as a combined PUD development. The greater 

development concentration in the Highridge section has been offset by the lesser development 

concentration in the Ridgetop section. 

8. As noted above, portions of each development have already been completed and sold. 

However, because those units currently exist on the property, we subtract them from the density 

maximums noted above to determine the number of units KPSRP would be entitled to develop 

going forward, without exceeding the PUD density limits for the R-1 District. 

9. As previously noted, there have been six residences already constructed in the Ridgetop 

development. KPSRP proposes to construct three more residences, for a total of nine Ridgetop 

residences. 

10. KPSRP reports that a total of thirty-six units have been completed and sold in the 

Highridge development, in Buildings B, H, I, J, and Q; that total also includes the three singlefamily Highridge residences. See Exhibit I, at 3. When subtracting all the constructed and sold 

units, as well as the proposed three Ridgetop residences, from the total allowable density of 

eighty-two units, KPSRP could construct thirty-seven more Highridge condominium units and not 

exceed the PUD density limitations for the R-1 District. 

11. KPSRP attached to its revised application (Exhibit I) several site maps depicting the 

proposed PUD, including a topographical map depicting the areas within the SV and R-1 Districts 

(Map A); an overall site plan, depicting the existing and proposed buildings in each development 

6

 Our calculations are based upon each acre containing 43,560 square feet. 
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(Map B); an as-built and proposed building plan for the Ridgetop development (Map C); and an 

as-built and proposed building plan for the Highridge development (Map D). These maps are 

identical or similar to maps previously submitted to the Planning Commission in prior PUD and 

site plan proceedings. 

12. The thirty-seven proposed additional Highridge condominium units would be included 

within proposed Buildings K, L, M, and N, as depicted on Map B, referenced above. However, 

KPSRP specifically stated in its application that the locations of the remaining Highridge unit 

buildings “are preliminary and may change in the future when an official Town [site] plan review 

is done.” Exhibit I at 2. 

13. KPSRP also noted in its application that it was not requesting affirmative findings as to the 

“[a]rchitectural relationships, landscaping and loading spaces” or to the adequacy of water and 

sewer supplies for the remaining Highridge units, leaving that review to when it submits its site 

plan application to the Planning Commission and its water and sewer supply application to the 

Vermont Agency of Natural Resources (“ANR”). Id. 

14. By its application, KPSRP proposes that, upon PUD approval, the three remaining Ridgetop 

lots (Lots 1, 5, and 7) would be sold to individual owners, who would then be responsible for 

applying for and obtaining any needed approvals for the construction and use of their individual 

homes. Id. 

15. The proposed new residences within the Ridgetop and Highridge developments will be 

accessed by the roadways and accessways depicted on the application maps, referenced above, 

which have not changed since the PUD approval was first received. Therefore, all vehicular and 

pedestrian circulation within the development will remain as authorized in previous PUD 

approvals. 

16. KPSRP does not request any reduction in the minimum setbacks applicable to the 

remaining portion of the Highridge development. As to the Ridgetop development, KPSRP only 

requests that the applicable setbacks be reduced to twenty-five feet, as reflected in prior PUD 

approvals. See PUD #06-098 and Site Plan Review #06-099, a copy of which was admitted at trial 

as KPSRP Exhibit E and Appellant Exhibit 3. 
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17. A prior PUD approval, PUD #06-098, included a condition (Condition 7) with the following 

provision: 

Prior to the removal of any trees from Ridgetop common land the Ridgetop 

Landowners Association shall submit a landscaping plan to the Planning 

Commission for their approval. No trees shall be removed from the common land 

without Commission approval with the exception of trees which pose an imminent 

threat to health or public safety. 

18. The Town Planner, Richard Horner, credibly testified that this PUD approval condition has 

created an “administrative nightmare” and that he believes it does not serve its original intended 

purpose. KPSRP agrees, and requests in its 2011 application, as supplemented by its 2017 

application submitted in the court-ordered remand proceedings, that Condition 7 be removed. 

19. Fire hydrants have already been installed and maintained in the Ridgeway and Highridge 

developments pursuant to prior PUD approvals. KPSRP pledges to consult with the Town of 

Killington Fire Department officials in determining what additional fire hydrants and other safety 

facilities may be needed in the Highridge development, and to include those additions in its 

future applications for site plan approval and a zoning permit for the additional Highridge units. 

20. The new developments proposed for Highridge and Ridgetop are solely for residential 

uses; there is not a commercial component to the proposed development. 

21. The proposed new developments are similar or identical to the already existing 

construction within the Highridge and Ridgetop developments and fit within the character of the 

surrounding lands and structures. 

22. Each Ridgetop house site includes its own driveway and area for at least two parking 

spaces at the residence. The Highridge development already includes accessways to each of the 

buildings that host the existing individual condominium units. The proposed new condominium 

buildings will also be served by sufficient parking, all of which will be detailed in the future site 

plan application. 

23. The Ridgetop development has a State of Vermont Water Supply and Wastewater 

disposal permit and a construction permit from the Water Supply Division of the Department of 

Environmental Conservation, a department within ANR. 

24. The new proposed Highridge units do not currently have a State of Vermont Water Supply 

and Wastewater disposal permit. However, KPSRP acknowledged in its 2011 and 2017 
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applications that it will need to obtain such permits prior to commencement of construction of 

the Highridge development, together with site plan approval, a zoning permit, and any other 

necessary state approvals. 

25. There is a wetland near the southwestern boundary of the Ridgetop development; it was 

identified in the prior PUD proceedings. KPSRP pledges to continue to protect this wetland and 

its adjacent buffering lands, as has been directed in prior PUD approvals. 

26. There are no municipal lands within either the Ridgetop or Highridge developments. 

27. The prior PUD approvals included general conditions or representations by the thendeveloper as applicant to protect public health, safety, and welfare, including landscaping and 

screening. By its pending application, KPSRP pledges to maintain such measures and provide 

additional landscaping and screening details in its future landscaping plan, which will be 

submitted with its future Highridge site plan review application. 

28. KPSRP requests in its pending application that it not be required to submit a performance 

bond to cover its planned future development. There was no request or evidence presented at 

trial concerning the need for a performance bond concerning the planned future development. 

29. While the authority to develop that was contained in each of the prior PUD approvals has 

expired (see PUD #88-169; PUD #99-029; PUD #02-006; and PUD #06-098), each of those 

approvals contained conditions and terms governing the developments that run with the land 

and are binding upon the then-applicant and all assigns and successors in interest. See, for 

example, PUD #06-098 (KPSRP Exhibit E) at 8, which included such a condition as Condition 11: 

“[t]his PUD approval and Site Plan Review approval and conditions shall be binding upon the 

applicants and all assigns and successors in interest.” 

30. KPSRP pledges to abide by all prior PUD conditions and approvals, with the only exception 

being the Ridgetop tree-cutting condition, as noted above in Findings 17 and 18. 

Discussion 

Vermont municipalities have been authorized to enact local land use regulations through 

the enabling statutes found in 24 V.S.A., chapter 117. With those authorization provisions, 

municipalities are also directed that they “should provide for planned unit developments to 

permit flexibility in the application of land development regulations . . . and in conformance with 
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the municipal plan.” 24 V.S.A. § 4417(a). In essence, planned unit developments provide a 

means by which conventional zoning regulations can be relaxed, so that more compact 

development, often where density and setback regulations are eased, can be allowed. See 24 

V.S.A. § 4417(b). However, so that these deviations from conventional zoning regulations are 

restricted to stated, established purposes and standards, any municipal PUD regulations must 

include specific provisions. 24 V.S.A. § 4417(c). 

The Town of Killington has enacted zoning regulations that govern planned unit 

developments; its stated goals are as follows: 

General Intent: A Planned Unit Development is intended to permit developments 

of larger parcels of land which will provide a desirable and stable environment in 

harmony with that of the surrounding area; to permit flexibility that will 

encourage a more creative approach in the development of land, will result in a 

more efficient, aesthetic and desirable use of open area, to permit flexibility in 

design, placement of buildings, use of open spaces, circulation facilities, and offstreet parking areas; and to utilize best the potentials of sites characterized by 

special features of geography, topography, size or shape. 

Regulations § 505. 

The Killington Regulations allow a landowner to undertake its development plans, even 

when such plans call for “modification” of the conventional zoning regulations, upon approval of 

its PUD application. Id. However, PUD approval does not exempt a planned development from 

obtaining all other necessary municipal approvals and permits, such as site plan approval and a 

zoning permit. So, we enter our analysis of the PUD application presented by this appeal by 

noting KPSRP’s acknowledgements that it must obtain the necessary site plan and zoning 

approvals, as well as other necessary state permits, before it may commence completion of the 

construction of the Highridge development portion of its PUD. We also note that in this appeal 

we only consider the PUD application presented and its conformance with the applicable 

regulatory standards. 

Appellant has presented five legal issues in its Statement of Questions, as clarified. Those 

legal issues establish the parameters of our jurisdiction in this appeal. See V.R.E.C.P. 5(f). We 

address those legal issues in numerical order below. 

 
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Question 1: Is PUD Application #17-003 in conformance with Regulations § 240? 

Regulations § 240 provides the use and dimensional requirements for land uses in various 

zoning districts. Since all of the land where these developments will occur is in the R-1 District, 

only subsection (3) applies to these proposed developments. 

The use and dimensional requirements of § 240(3) are separated into two groups: those 

applicable to developments in a PUD, and those not in a PUD. For a PUD development, the 

allowed uses are “[o]ne, two, and multi-family dwellings or any combination thereof.” Id. The 

minimum lot area is 5 acres, with a minimum lot area per dwelling of 20,000 square feet. Both 

the Ridgetop and Highridge developments conform to these dimensional requirements. 

The minimum front setback required for R-1 District PUDs is 25 feet. Id. Both 

developments conform to this requirement as well. The side and rear setbacks for PUD 

developments is 100 feet. While the Highridge development conforms to these setback 

requirements, KPSRP requests that the side and rear setbacks for the Ridgetop development be 

reduced to 25 feet as well. 

The Planning Commission is authorized to reduce setbacks in approved PUDs pursuant to 

24 V.S.A. § 4417(a)(4), which provides for “flexibility in site and lot layout, building design, [and] 

placement and clustering of buildings . . . .” This same setback reduction was approved in the 

prior PUD approvals. See, in particular, PUD #06-098. No credible evidence was presented at 

our trial to contradict the appropriateness of approving KPSRP’s requested reduction in the 

Ridgetop side and rear setbacks. By granting these setback modifications, we are allowing the 

Ridgetop development to maintain modified setbacks for both the residences that have already 

been built and the three residences proposed to be built. In light of this uniformity and the similar 

setback modifications contained in the prior PUD approvals, we conclude that the requested 

setback modification should be granted. 

For all these reasons, we answer Appellant’s Question 1 in the affirmative: the proposed 

PUD application for the completion of these developments conforms with Regulations § 240. 

Question 1(a): Is PUD Application #17-003 in conformance with Regulations § 505? 

By its Question 1(a), Appellant asks whether Application #17-003 is in conformance with 

Regulations § 505. We understand that Appellant’s Question 1(a) references Application #17-
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003 as the materials supplementing the remanded Application #11-005 and will conduct our 

review accordingly. 

Regulations § 505 establishes the general intent, standards, and conditions for 

authorizing planned unit developments. This PUD Regulation sets out eighteen separate 

standards and conditions; we review them in numerical order below. 

Standards and Conditions #1 directs that a site plan shall be submitted to the Planning 

Commission. KPSRP submitted a site map (Map B, attached to KPSRP Exhibit I) which shows both 

the pre-existing and proposed portions of each development. All Ridgetop residences 

represented on Map B are located as they have been located in previous PUD applications. In 

regards to the thirty-seven units proposed to be added to the existing Highridge development, 

KPSRP noted in its application narrative that the four proposed condominium buildings identified 

to house the proposed new Highridge units are “preliminary”, and that these building locations 

“may change in the future when an official Town [site] plan review is done.” Exhibit I, p. 2. KPSRP 

also noted in this application narrative that it was not seeking positive findings with respect to 

“(1) [a]rchitectural relationships, landscaping and unloading space [and] (2) [a]dequate water and 

sewer supply.” Id. KPSRP pledges that it will provide these details in its future applications for 

site plan approval and a zoning permit. We are convinced that KPSRP’s pledge is authentic and 

credible, especially since it will be unable to commence construction on these remaining 

condominium buildings until the Town approves its site plan review and zoning permit 

applications. The same is true for its pledge to apply for and obtain a water supply and 

wastewater disposal permit from ANR, since it would be unlawful to commence construction and 

sell the new units without these ANR approvals. 

Standards and Conditions 1 also directs that a PUD application shall “also include both 

maps and a written statement and must show enough of the area surrounding the proposed PUD 

to demonstrate the relationship [of] the PUD to adjoining uses, both existing and proposed.” Id. 

KPSRP has fulfilled this standard by its 2011 application, as supplemented by its 2017 application 

and materials, which when reviewed together include maps of the proposed developments and 

surrounding area, as well as an application narrative that credibly shows that the proposed 
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development will be situated amongst similar or identical developments already existing on 

neighboring lands. 

Appellant raises several objections. We first note that this Court remanded the pending 

2011 application because of two main deficiencies: first, the Court directed that KPSRP, working 

with the Planning Commission, must revise the narrative of the notice to include a reference to 

the proposed new residences in both the Ridgetop and Highridge developments. The deficient 

notice sent out in 2011 only referenced the proposed new development at Ridgetop, even 

though both the 2011 application and the testimony solicited at the 2011 Planning Commission 

hearing addressed both developments. Second, the Court directed that a revised notice must be 

sent to all Highridge unit owners, as well as any other parties entitled to notice. The deficient 

notice sent out in 2011 was only served on the Highridge Owners’ Assoc., not on its individual 

owners. Appellant’s challenges in the current appeal appear to ignore that the revised 2017 

notice actually referenced both developments, as directed by the Court in its 2016 Decision. 

KPSRP’s 2017 application narrative specifically states that “[a]s directed by the [2016 

Environmental] court decision, we are requesting the March 2011 renewal of the PUD approval 

#06-098, as may be modified therein.” 2017 Application #17-003 (Exhibit I), at 2. KPSRP’s 

application narrative also specifically references this Court’s directive that the revised notice for 

the remanded application (Application #11-005) “maintains the original filing date in March of 

2011” and that the remanded application should be considered for conformance with the “2008 

Town of Killington Zoning Regulations, which were in affect [sic] during the previous 2011 

submittal.” Id. at 1–2. 

These KPSRP references in its application narrative faithfully conformed to this Court’s 

2016 Decision. We cannot accept Appellant’s assertion that KPSRP failed to request review of its 

remanded application, or that it failed to properly revise the notice for the 2017 Planning 

Commission hearing on the remanded application, because such assertions are not credible in 

light of the uncontroverted KPSRP submissions. 

Appellant raises several other challenges to the application materials KPSRP submitted in 

2017. We address only four further objections here, since the Appellant’s remaining objections 

are more appropriately addressed when considering Appellant’s Questions 2, 3, and 4, below. 
-16- 

First, Appellant asserts that since KPSRP submitted additional materials for the Planning 

Commission to consider in its 2017 hearings, those hearings were not conducted on a remanded 

application, but rather on a new application. We find this claim somewhat ironic, given that the 

2017 hearings were made necessary by Appellant properly bringing to light the deficiencies of 

the 2011 hearing notice. Given that this Court determined in 2016, by granting Appellant 

summary judgment, that KPSRP’s filings were deficient, KPSRP had a duty to supplement and 

revise the notice and its application materials. 

In its 2017 filings, KPSRP has not materially changed its 2011 request for PUD authority 

for the remaining three Ridgetop residences and thirty-seven Highridge condominium units. The 

application narrative and additional site maps that KPSRP submitted were merely offered to 

supplement its remanded 2011 application. When an application under review on appeal is 

supplemented, but does not materially change the development project, it need not be 

considered as a new application. In re Sisters & Bros. Inv. Grp., LLP, 2009 VT 58, ¶ 21, 186 Vt. 103. 

Because we conclude that the materials submitted by KPSRP in 2017 were merely supplements 

to the remanded application, particularly in response to the deficiencies identified by project 

opponents and found by the Court, and do not change the proposed development in any material 

way, we also conclude that the Planning Commission properly considered all the materials 

submitted when addressing the remanded 2011 application. 

Second, we understand there to be an important distinction between the authority of 

KPSRP’s prior PUD approvals, which were limited to a four-year term, and the conditions that the 

Planning Commission placed upon the developments, which run with the land. Each of the 

Planning Commission decisions has a similar continuation clause for the stated conditions. This 

distinction is logical, since when the construction of a permitted development is completed, the 

conditions of its approval do not evaporate, even after a PUD term expires. Such conditions, 

including landscaping and tree removal conditions, are meant to continue long after the PUD 

authority expires. Thus, we conclude that the generalization Appellant sometimes uses in its 

post-trial briefing—something to the effect that the permit has expired—is a too-simplistic and 

misleading statement when attempting to discern the necessary distinction between the term of 

a PUD’s authority and the conditions that continually run with the land. 
-17- 

Third, Appellant makes much of the fact that when KPSRP requested that the Planning 

Commission conduct hearings on the Court-mandated remanded 2011 application, and 

submitted additional materials in support of that remanded request, the Town Planner accepted 

the revised application and supporting materials and assigned #17-003 to those filings, for the 

purpose of “record keeping and permit tracking purposes.” See Highridge/Ridgetop PUD 

Approval, No. 17-003 Decision at 1 (Killington Planning Comm’n Apr. 26, 2017). In fact, the 

Planning Commission specifically noted in its decision on the remanded application that 

“Application 17-003 is a court ordered re-hearing of Application 11-005.” Id. We received no 

testimony or other evidence to contradict these representations. And yet, Appellant would have 

us ignore this representation, as well as the representations in the revised hearing notice, which 

specifically gives notice that the hearing would be conducted on a Court-directed remand of the 

2011 application. We decline to follow Appellant’s suggestion, since it is unsupported by credible 

facts. 

Lastly, we note that Appellant makes much of the fact that KPSRP “waited over a year” 

after this Court’s 2016 Decision before it requested that the Planning Commission conduct a 

review of the remanded PUD application. We have some understanding of the time and effort 

that must be expended to complete the assembly of materials and witnesses for a land use 

application, particularly one which has seen opposition and litigation. Further, as both parties 

note, this Court did not set a deadline for when KPSRP was allowed to submit its materials and 

request a Commission hearing on its remanded PUD application. Thus, while the year-long wait 

may have seemed long, it was not in violation of the Court’s remand directive. 

In making this argument, Appellant also refers the Court to the Vermont Administrative 

Procedure Act (3 V.S.A. § 800 et. seq.; “VAPA”), particularly the provisions of the Act relating to 

“licenses” and the renewals of those licenses. However, Appellant fails to provide statutory 

authority for how the VAPA governs municipal land use proceedings, and our own research can 

find none. We therefore conclude that the VAPA is not relevant to the pending PUD application 

in this regard. 

For all these reasons, we conclude that the Planning Commission, with KPSRP’s assistance, 

properly revised the hearing notice for the Court-directed remanded 2011 application, and that 
-18- 

its submission of additional materials to the Planning Commission in anticipation of its 2017 rehearing did not transform KPSRP’s 2011 remanded application into a new application. We also 

conclude that the Town Planner’s assignment of #17-003 to the revised application and 

supporting materials that KPSRP submitted in anticipation of the Planning Commission’s rehearing on the remanded 2011 application did not convert that into a new application. Such a 

transformation would have been in violation of this Court’s 2016 directive and would have been 

contrary to KPSRP’s and the Planning Commission’s specific representations. 

For all these reasons, we conclude that KPSRP’s remanded 2011 application, as 

supplements by its 2017 materials, conforms with Regulations § 505(1). 

Standards and Conditions #2 directs that the Planning Commission “shall hold at least one 

public hearing, upon public notice, prior to approval.” Regulations § 505(2). The Planning 

Commission did just that: after revising the notice of its hearing on the remanded 2011 

application, pursuant to this Court’s directive, the Commission caused the revised notice to be 

published and conducted two public hearings, on April 12 and 26, 2017. After completing that 

second hearing, the Commission approved and issued its Decision. Id. No credible evidence was 

offered to refute these representations. We therefore conclude that KPSRP has provided 

convincing evidence that it satisfied Regulations § 502(2). 

Standards and Conditions #3 notes that land development “may be commenced through 

a Planned Unit Development for those uses and under those requirements which are specified in 

the Tables of Section 240 as permitted in [a] PUD.” Regulations § 502(3). The development 

KPSRP proposes is a completion of previously authorized residential developments on lots that 

conform to the minimum lot size and minimum size per dwelling unit requirements for PUDs 

contained in Regulations § 240. All proposed setbacks for the Highridge development, and all 

proposed setbacks for the Ridgetop development, after the modification discussed above, 

conform to the § 240 setback minimum requirements. We therefore conclude that KPSRP’s 

proposed PUD completions of the Ridgetop and Highridge developments conform with 

Regulations § 505(3). 

Standards and Conditions #4 appears inapplicable to the pending PUD application, since 

it concerns the use of undersized PUD lots, particularly in the R-1 District. Regulations § 505(4). 
-19- 

Since both developments will be completed on lots that exceed the minimum lot size, we 

conclude that the proposed PUD completion conforms with Regulations § 505(4). 

Standards and Conditions #5 concerns side and rear setback limitations, and authorizes 

the Planning Commission in the first instance, and this Court on appeal, to “increase or decrease 

the setback requirements . . . [when] the special circumstances of a proposed development 

would make such requirement inappropriate.” Regulations § 505(5). We discussed KPSRP’s 

request to reduce the side and rear setback limitations for the completion of the Ridgetop 

development in our analysis of conformance with Regulations § 240 above and concluded that 

KPSRP’s setback reduction request was appropriate. For these same reasons, we conclude that 

the proposed completion of the Ridgetop and Highridge PUD developments conforms with 

Regulations § 505(5). 

Standards and Conditions #6 appears to be written in anticipation of developments such 

as Highridge and Ridgetop. Whereas the Highridge development, assessed alone, evidences a 

tighter density than required by Regulations § 240 (i.e., no less than 20,000 square feet of land 

for each existing or proposed unit), the Ridgetop development has a much less dense 

concentration. When assessed together, which is the way this application (and all prior 

applications) presented the combined developments, under one PUD proposal, the combined 

PUD conforms to the minimum size per dwelling unit required under Regulations § 240. We 

therefore conclude that the proposed completion of the Ridgetop and Highridge PUD 

developments conforms with Regulations § 505(6). 

Standards and Conditions #7 authorizes the Planning Commission (or this Court on 

appeal) to “issue Planned Unit Development approval for a proposed development for a specific 

period of time, not to exceed four (4) years.” Regulations § 505(7). During our de novo hearing 

on the remanded application, the Town Planner recommended that this Court approve a fouryear term for this proposed PUD completion of the Ridgeway and Highridge developments. We 

received no evidence or argument as to why such a term would not be appropriate. We therefore 

conclude that the authority to complete these PUD developments shall run for a period of four 

years. Given the extended litigation concerning Application #11-005, we direct that this fouryear term shall begin upon the final adjudication of this litigation. 
-20- 

Appellant takes issue with the fact that, particularly in KPSRP’s submission to supplement 

the 2011 application, KPSRP did not specify a time period for the duration of the PUD authority. 

While this may be true, we do not perceive this to be a fatal flaw in KPSRP’s request. First, we 

note that Regulations § 505(7) does not require that an applicant specify a duration period in its 

application. Rather, this section places the duty on the Planning Commission (and this Court on 

appeal) to specify the duration of the PUD approval. Second, since we must consider the pending 

remanded application in a de novo hearing, we consider all the evidence presented anew, and 

render our legal determinations after the evidentiary hearing is closed. V.R.E.C.P. 5(g). During 

our de novo hearing we received evidence and legal arguments that the PUD approval term 

should be four years. Since such a term is authorized by Regulations § 505(7), we grant that 

request. For these same reasons, we conclude that proposed completion of the Ridgetop and 

Highridge PUD developments conforms with Regulations § 505(7). 

Standards and Conditions #8 appears inapplicable to the pending remanded application, 

since the completion of the proposed developments only involve one zoning district. We 

therefore conclude that the application conforms to Regulations § 505(8). 

Standards and Conditions #9 speaks to how any PUD proposal that includes a mixture of 

commercial and residential uses should be “arranged.” Regulations § 505(9). Since the pending 

remanded application only proposes residential uses, and proposes no commercial uses, we 

conclude that Regulation § 505(9) is inapplicable to the pending application. 

Standards and Conditions #10 requires that “[r]oadways, parking and unloading facilities 

shall be designed and constructed so as not to cause unreasonable highway congestion or unsafe 

traffic conditions.” Regulations § 505(10). The roadways and parking areas proposed for both 

developments (a preliminary showing for the Highridge development) are presented on Maps B, 

C, and D that are attached to the Application #17-003 support materials (Exhibit I). These maps 

evidence the existing roadways and parking areas for the already constructed and to-beconstructed residences and condominium units in each development. 

Our consideration under subsection (10) is made easier by the fact that all of the access 

roads in the Ridgetop development and nearly all of the access roads in the Highridge 

development are already constructed and maintained, pursuant to prior PUD and site plan 
-21- 

approvals. KPSRP offered trial testimony that these roadways and parking areas are safe, and we 

did not receive any evidence contradicting that position. 

To the extent that KPSRP’s proposed additional access roads and parking areas in the 

Highridge development are revised, KPSRP pledges to provide detailed final plans in its future 

site plan and zoning permit applications. We therefore conclude that the three remaining 

residences in the Ridgeway development may be constructed as proposed, and direct that no 

construction of the proposed Highridge condominium buildings and units may begin until after 

KPSRP applies for and receives final site plan approval and a zoning permit. 

With this condition, we conclude that the proposed completion of the Ridgetop and 

Highridge developments conforms with Regulations § 505(10). 

Standards and Conditions #11 requires a PUD applicant to show that the proposed 

development is supported by adequate water and utility services, and that “all sewage and other 

effluent disposal shall be designed so it will not become a public health hazard.” Regulations 

§ 505(11). KPSRP presented uncontradicted testimony that the three remaining residences in 

the Ridgetop development will be served by water supply and wastewater treatment systems 

pursuant to a current ANR permit. As to the remaining thirty-seven condominium units at 

Highridge, KPSRP represents that it will apply for and receive an updated ANR water supply and 

wastewater treatment permit prior to the commencement of construction of the remaining 

units. We will therefore condition our PUD approval of the Highridge completion upon KPSRP or 

its successors applying for and receiving a final (i.e., one that survives any timely appeal) ANR 

permit. 

For these reasons, and with the above condition, we conclude that the development 

completion proposed in the remanded application for Ridgetop and Highridge conform with 

Regulations § 505(11). 

Standards and Conditions #12 requires that “unique natural features of the site” shall be 

preserved. Given the location of the Highridge and Ridgetop developments, we have no doubt 

that their sites include beautiful natural features. However, the only “unique” natural feature 

identified on either site is an existing wetland near the southwestern boundary of the Ridgetop 

development. This wetland is located outside of three existing Ridgetop residences. The three 
-22- 

remaining Ridgetop residences that are proposed in this PUD application are some distance away 

from the wetland. In any event, KPSRP pledges to maintain a 25-foot vegetative buffer around 

the wetland, in which a “Do Not Disturb” sign will be maintained. 

For these reasons, we conclude that the proposed development detailed in the pending 

remanded application conforms with Regulations § 505(12). 

Standards and Conditions #13 appears to not be applicable to the remanded PUD 

application, since that provision only governs developments that include municipal lands. These 

developments, existing or proposed, contain no municipal lands. We therefore conclude that the 

proposed development detailed in the pending remanded application conforms with Regulations 

§ 505(13). 

Standards and Conditions #14 allows the Planning Commission (and this Court on appeal) 

to “attach such reasonable conditions and safeguards as may be necessary to implement the 

purposes of [state and municipal land use laws], in order to protect the public health, safety and 

welfare . . .[, including] screening and landscaping.” Regulations § 505(14). Our analysis under 

this subsection (14) is made somewhat easier by the fact that most of the Ridgetop development 

and half of the Highridge development have already been constructed, pursuant to prior PUD 

and site plan approvals, as well as zoning permits and the necessary state permits. 

Each prior PUD approval includes a condition that “[a]ll conditions of past Planned Unit 

Development approvals and Site Plan Review approvals for Ridgetop and Highridge not 

specifically changed by these approvals shall remain in full force and effect.” KPSRP Exhibit E at 

8. The conditions in the prior PUD approvals included requirements concerning bus shelters, 

emergency vehicle turning areas, fire hydrants, and requirements to clearly mark the boundary 

lines for each building lot. Id. We intend to replicate this condition, to memorialize that all prior 

PUD approval conditions continue to run with the land.7 We further note that we have already 

determined that KPSRP shall be required to comply with a condition that it must apply for and 

receive Site Plan review approval and zoning permits that detail any additional necessary 

landscaping, traffic, parking and other necessary provisions. 

7

 With the exception of Condition 8 from the PUD #06-098 approval concerning tree cutting on the Ridgetop 

development, which we determined should be eliminated in our analysis of conformance with Regulations § 240, 

above. 
-23- 

With these conditions, we conclude that the pending remanded application conforms 

with Regulations § 505(14). 

Standards and Conditions #15 authorizes the Town, in its discretion, to require “a 

performance bond with a good and sufficient surety, in an amount to cover the full costs of public 

or private roadways and utility lines . . . .” Regulations § 505(15). Since the majority of the 

roadways, utility lines, and fire hydrants were already constructed when the prior portions of the 

Ridgetop and Highridge developments were completed, we do not see much utility in a bond 

requirement. Further, we received no presentation from the Town that it wished to require a 

bond. We therefore decline to require a bond and conclude that the pending remanded 

application conforms with Regulations § 505(15). 

Standards and Conditions #16 states a somewhat curious provision, namely that the 

Planning Commission, when reviewing a PUD application, shall “have the same powers” that it 

has when considering a site plan application in regard to “traffic access, circulation and parking, 

landscaping and screening.” Regulations § 505(16). We note that the prior PUD approvals 

concerning the portions of the Ridgetop and Highridge developments that have already been 

constructed addressed traffic access, circulations, parking, landscaping and screening. The few 

additional items in this regard that need to be resolved will be addressed when KPSRP applies for 

site plan approval and a zoning permit authorizing construction of the Highridge units. As to the 

three remaining Ridgetop residences, we see no need to impose further conditions concerning 

traffic access, circulation, parking, landscaping, and screening, since all roads have already been 

constructed, and all the building lots have been identified, with driveways, parking, and 

landscaping. We therefore decline to impose additional conditions, other than those already 

discussed above, and conclude that the pending remanded application conforms with 

Regulations § 505(16). 

Standards and Conditions #17 reiterates a reality we have referenced above: that KPSRP 

must apply for and receive a final site plan approval and zoning permit for the Highridge 

development, and that such approvals and permits “shall only be issued if the proposed land 

development complies with all applicable provisions and conditions of the PUD approval and the 

applicable requirements of these Zoning Regulations . . . .” Regulations § 505(17). KPSRP has 
-24- 

already received site plan approval for the three remaining Ridgetop residences, and has advised 

that it intends to sell the building sites to individual owners who will complete construction of 

their individual residences.8 These future owners will be responsible for securing any necessary 

additional municipal or state permits. 

For all these reasons, we conclude that the pending remanded application conforms with 

Regulations § 505(17). 

Standards and Conditions #18 requires that “the Zoning Administrator shall issue a 

[zoning] permit under Section 610D” if one is applied for concerning lands already reviewed by 

the Planning Commission, and the Planning Commission issued approval of the PUD application. 

Regulations § 505(18). This subsection continues by stating that if an application is made for a 

zoning permit that “is in any way different from the land development approved in the PUD 

approval,” the Zoning Administrator shall deny the zoning permit application. Id. KPSRP pledges 

to apply for a zoning permit for land development that complies with all applicable terms and 

conditions of any PUD approval issued in these or prior proceedings. Nonetheless, the Zoning 

Administrator will need to make their own determination, if and when they receive a zoning 

permit application. At this stage of these development approval proceedings, we conclude that 

KPSRP has thus far complied with Regulations § 505(18), and we leave it to the appropriate Town 

officials to comply with this regulatory provision. 

For all these reasons, we conclude that KPSRP’s remanded application for PUD approval 

for the completion of the Ridgetop and Highridge developments conforms with all applicable 

provisions of Regulations § 505. We therefore answer Appellant’s Question 1(a) in the 

affirmative. 

Question 2: Is PUD Application #17-003 a new application, or a re-noticing of PUD application 

#11-005? 

We have essentially already addressed this issue in our discussion above of the pending 

application’s conformance with Regulations § 505(1). Pursuant to this Court’s 2016 directive, 

8

 KPSRP seeks renewal of its previous Ridgetop site plan application (see PUD #06-098 and Site Plan Review 

Approval #06-099) in the pending remanded application. While it is unclear that the future owners of the Ridgetop 

building lots will need further municipal or state permits, we understand that they may be required to secure a 

municipal zoning permit for their individual residences, at the very least. 
-25- 

KPSRP worked with the Town Planner to revise the 2011 hearing notice that the Court 

determined to be deficient and scheduled a new hearing before the Planning Commission on the 

remanded 2011 application. Due to the Court’s determination that the 2011 hearing notice was 

deficient, KPSRP supplemented its application materials. The Town Planner assigned Application 

#17-003 to those materials, solely for record keeping and administrative purposes. The revised 

notice specifically referenced that the Planning Commission would be conducting a hearing on 

the remanded 2011 application and 2017 supplemental materials, that the applicable application 

date was in March of 2011, and the Commission proceedings would be governed by the 

Regulations in effect as of 2011. At that hearing, the Planning Commission followed the directives 

summarized in the revised hearing notice, and we have repeated that procedure in this de novo

appeal of the remanded application. 

For all these reasons, we conclude that the 2017 proceedings before the Planning 

Commission, and our 2018 merits hearing in this de novo appeal, were not on a new application, 

but rather on the remanded 2011 application, pursuant to the revised hearing notice. 

Question 3: Does PUD Application #17-003 relate back to the original filing date of PUD 

application #11-005? 

For all the reasons already stated, we answer Appellant’s Question 3 in this manner: the 

application considered by the Planning Commission in 2017 and by this Court in this de novo

appeal relates back to the original filing date of Application #11-005 in March of 2011, as directed 

by this Court in its 2016 Decision. 

Question 4: Can PUD Application #17-003 seek renewal of and rely on findings of the #88-169 

PUD approval, which the Environmental Division of the Superior Court ruled had 

expired in 1992? 

By this Question, it appears that Appellant has a misunderstanding of and is confused by 

the distinction between the terms of a PUD approval, and the conditions placed upon a PUD 

development when it receives that approval. We have discussed these separate concepts above 

but elaborate further on them below. 

Under these Regulations, and all other zoning regulations that are enacted pursuant to 

the enabling statute—24 V.S.A. § 4417— a PUD approval may be authorized for a specific term. 

Under the 2008 Regulations that governed this remanded application, the PUD had to be 
-26- 

authorized for a specific term of not more than four years. Regulations § 505(7). At trial, KPSRP 

requested that this PUD remanded application result in an approval that lasts four years, which 

we have approved above. If our Decision here is not appealed, that PUD approval will continue 

until June of 2023. 

If KPSRP completes all the anticipated construction in the Ridgetop and Highridge 

developments prior to that date, then there will be no need for a further renewal of its PUD 

approval. However, that does not mean that all the conditions imposed by this PUD approval will 

evaporate. Rather, the conditions established by this Decision, including the condition that 

incorporates the conditions imposed by the prior PUD approvals that have not been expressly 

superseded, will continue as encumbrances upon these two developments. KPSRP, its 

successors, and assigns will continue to be obligated to abide by these conditions. The expiration 

of a PUD approval does not alleviate an owner from its obligation to abide by conditions that run 

with the land. 

We provide this explanation as a foundation to our answer to Appellant’s Question 4. 

First, we note that while this Court in 1992 concluded that the initial PUD approval for the 

Ridgetop and Highridge developments (PUD #88-169) did expire in 1992, the Court did not rule 

that the findings and conditions imposed upon these developments evaporated in 1992. Rather, 

they continue to run with the land because the developments were partially constructed. We 

are not allowing KPSRP to seek “renewal” of the findings and conditions of PUD #88-169. Rather, 

we have reminded KPSRP that the previously established findings and conditions continue to run 

with this land and serve as encumbrances upon this land. That is the sole rationale for our 

condition below that incorporates all conditions from prior PUD approvals that have not been 

specifically superseded. 

This renewed application has not sought “renewal” of prior PUD approvals. We have 

concluded here, based upon the credible evidence presented and our analysis of the applicable 

law, that KPSRP is entitled to approval of its remanded application (Application #11-005) as 

supplemented by the materials of Application #17-003, because it has presented credible 

evidence, not effectively contradicted by its opponents, that its pending PUD application 

conforms with the applicable provisions of the Regulations. 
-27- 

Conclusions of Law 

For all the reasons stated above, we conclude that KPSRP’s remanded application 

(Application #11-005), as supplemented by the materials contained in Application #17-003, 

conforms to all applicable provisions of the Town of Killington Zoning Regulations and should be 

APPROVED, subject to the following conditions: 

1. This PUD approval is valid for four years and shall expire four years after this Court’s 

original PUD approval Decision became final on June 6, 2019. 

2. Any conditions from previous Highridge/Ridgetop PUD approvals not specifically 

changed by this PUD approval shall remain in full force and effect. 

3. Prior to any construction on the Highridge section of the PUD, the Applicant shall 

apply for and receive Site Plan Review approval and a zoning permit. The Applicant 

shall detail all additional or modified landscaping, building siting, traffic, parking, and 

other necessary provisions for any required Site Plan Review and zoning permit 

approval.9

4. The Applicant shall apply for and receive updated ANR water supply and wastewater 

treatment permits for the Highridge section of the PUD prior to the commencement 

of construction of the remaining Highridge units. 

5. The Applicant shall consult with Killington Fire and Rescue concerning the design of 

the Highridge parking lot and fire hydrant locations prior to the submission of an 

application for Site Plan Review and shall incorporate all reasonable suggestions from 

Killington Fire and Rescue into that application. 

6. This PUD approval shall allow the three remaining undeveloped Ridgetop lots to be 

developed in conformance with this PUD approval and the pre-existing PUD and Site 

Plan Review approvals. 

7. The following condition from PUD approval #06-098 is made null and void by this PUD 

approval: “Prior to the removal of any trees from Ridgetop common land the Ridgetop 

Landowners Association shall submit a landscaping plan to the Planning Commission 

for their approval. No trees shall be removed from the common land without 

Commission approval with the exception of trees which pose an imminent threat to 

health or public safety.” 

8. This is a summary of conditions from the above Findings of Fact and Conclusions of 

Law. Conditions contained in the Findings or Conclusions but not in this summary 

shall also be conditions of this approval. 

9. This PUD approval and conditions shall be binding upon KPSRP, its successors and 

assigns. 

9

 The Court altered this Condition 3, along with Condition 4 below, for clarity in response to Appellant’s 

July 2, 2019 V.R.C.P. 59(e) motion. We also made minor adjustments to Conditions 1 and 5. 
-28- 

We further answer Appellant’s Questions 2, 3, and 4 in KPSRP’s favor, since we have 

concluded that: 

(2) Application #17-003 was not a new application, but rather constituted supplemental 

materials in support of Application #11-005, which this Court had previously remanded 

back to the Planning Commission for re-noticing and reconsideration; 

(3) the remanded application and supporting materials did not constitute a new 

application; and 

(4) this PUD approval properly incorporates by reference all the prior PUD findings and 

conditions that encumber these lands, except where specifically noted. 

This completes the current proceedings before this Court concerning the pending 

remanded application. An Altered Judgment Order accompanies this Altered Merits Decision. 

Electronically signed on August 08, 2019 at Newfane, Vermont, pursuant to V.R.E.F. 7(d). 

________________________________ 

Thomas S. Durkin, Superior Judge 

Environmental Division