### Killington Village Master Plan A250 Application

ENTRY REGARDING MOTION

Title: Motion to Amend/Alter Permit Conditions (Mo tion 15) Filer: Rutland County Regional Planning Commission, Two Rivers-Ottauquechee

Regional Commission, and the Southern Windsor Regio nal Planning Commission (hereinafter collectively referred to as the “Regio nal Commissions”).
Attorney: Robert E. Woolmington Filed Date: July 1, 2016

Response filed on 07/14/2016 by Attorney Gregory J. Boulbol for Natural Resources Board
Response filed on 07/15/2016 by Atty. Christopher D . Roy for Appellant SP Land Company, LLC
Reply filed on 07/28/2016 by Attorney Robert E. Woo lmington for the Regional Commissions (w/NRB joining).

The motion is GRANTED.
SP Land Company, LLC (“Applicant” or “SPLC”) seeks land use permits for a twenty-five lot subdivision and Phase I of its master plan at the K illington Ski Resort (“Resort”) in Killington, Vermont. On June 21, 2016, this Court issued its M erits Decision and Judgment Order affirming the District #1 Environmental Commission’s (“Distri ct Commissions”) approval of the land use permit, subject to conditions. Now before the Cour t is the Regional Commissions’ motion to alter
and amend certain conditions of our decision and or der related to Criterion 5—traffic. The Vermont Natural Resources Board (“NRB”) supports th e pending motion. SPLC, while agreeing with parts of the Regional Commissions’ motion, req uests a different result. For the reasons stated below, we GRANT the Regional Commissions’ motion and revise the ch allenged
conditions.

The focus of the motion to alter or amend is on Con ditions 13 and 14 of the Court’s Merits Decision and Judgment Order. The Regional Commissio ns claim that the Court erred by concluding that the Regional Commissions were willi ng to assume the responsibility of coordinating the corridor traffic study and by requ iring the Regional Commissions to complete that traffic study. The Regional Commissions clari fy that, while advocating for a corridor study, they did not intend to make any commitment to under take such a study and as they were not the permit applicant, the Court has no authority to impose permit obligations on them. As a 

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SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 147-10-13 Vtec147-10-13 VtecIn re Killington Village Master Plan, No. 147-10-13 Vtec (EO on Mot. to Alter/Amend)(08-29-2016) Page 2 of 7.

result, they argue that Conditions 13 and 14 must b e altered. SPLC has responded to the Regional Commissions’ motion to alter or amend in three ways : (1) by objecting to the participation of the Southern Windsor Regional Planning Commission parti cipation in the motion to alter; (2) by agreeing that the Court cannot compel third parties to undertake or finance certain actions; and (3) by arguing that any future traffic study obliga tions (Conditions 13 and 14) should be eliminated entirely because such conditions impermi ssibly extend jurisdiction over the project.

Although SPLC has not filed its own motion to alter or amend, we treat SPLC’s memorandum in response to have properly raised seve ral issues for our consideration. We turn first to SPLC’s claim that any future traffic study should be eliminated, and then address the Regional Commissions’ obligations regarding the req uired traffic studies. We will then briefly address any remaining matters raised by the motion or memorandum.

I. Continuing Jurisdiction

SPLC challenges Condition 13, arguing that the cond ition improperly extends the District Commission’s jurisdiction over Act 250 Criterion 5, allowing the Commission to reopen these permit proceedings should actual traffic impacts pr ove to be more significant than anticipated.

A district commission may consider and impose condi tions when attempting to determine whether a proposed project satisfies the various cr iteria and sub-criteria of Act 250. 10 V.S.A. §§ 6086(c), 6087(b). Appropriately imposed conditi ons may allow a proposed project to receive positive findings, subject to the conditions, and t hereby facilitate finality in the permitting process while also ensuring compliance with Act 250 . Such a practice has been used frequently by district commissions and this Court. See Finding s #151(1)–(4). As the Vermont Supreme Court recently articulated, “ Permissible conditions include those with prospecti ve application that are intended to alleviate adverse impacts that either a re or would otherwise be caused or created by a project, or those necessary to ensure that the development is completed as approved, such as those requiring permittees to take specific acti on when triggered by certain events . . . and requiring future compliance related filings . . . . ” In re Treetop Dev. Co. Act 250 Dev., 2016 VT 20, ¶ 12.
A permit condition is improper, however, when it “r eserves continuing jurisdiction . . ., creating for the [District] Commission a mechanism to continuously amend the permit as necessary to redress future Act 250 violations or f ailures under the terms of the approved project by adding additional conditions.” In re Treetop De velopment Company Act 250 Dev., 2016 VT 20, ¶ 14. Such a condition sidesteps the requireme nt that a project must satisfy the ten Act 250 criteria and creates an improper mechanism for inte rnal enforcement by the Commission. Id. In other words, where a condition effectively bestows upon the Commission “the prospective extrastatutory authority to re-open the amended permit a nd perpetually act,” the condition is an invalid condition subsequent. Id.

Here, we conclude that, as written, Condition 13 im properly extends jurisdictional powers of the Commission by allowing the Commission to ret ain jurisdiction and impose additional mitigation measures. Nevertheless, a condition sub stantially in a form similar to the original Condition 13, with the offending language removed, is a necessary and lawful component of the Merits Decision and Judgment Order.In re Killington Village Master Plan, No. 147-10-13 Vtec (EO on Mot. to Alter/Amend)(08-29-2016) Page 3 of 7.

Our traffic findings (21-71, 131-136, and 143-145) establish the foundation for a multilayered concern that the Court has about the possib le traffic impacts of this project: first, that the adverse traffic impacts could be greater if the proposed project generates more traffic than anticipated, and second, that these unanticipated a dverse traffic impacts could extend beyond the project’s host community and across the multipl e communities along our regional highways, including Interstates 89 and 91, as well as Vermont State Highways 4 and 7. These concerns lead the Court to conclude that it must obligate SPLC to conduct traffic studies that establish the existing level of traffic and the future levels of traffic one and five years after Phase 1 is completed. We continue to believe that such studie s are necessary to confirm the actual traffic impacts from the Phase 1 developments and to provid e the District Commission with clear evidence of any distinction between the projected a nd actual traffic impacts when the Commission is called upon to consider future expans ions at the Resort.

Such a condition does not improperly extend the Com mission’s jurisdiction. The opportunity to review the results of SPLC’s post-pe rmit Phase I traffic studies will only arise as SPLC submits permit applications for future phases of the proposed development. Given the multi-phased nature of SPLC’s master plan and the C ourt’s lingering concerns about the possibility of unanticipated adverse traffic impact s, imposing the traffic study condition is also proper considering the authority in master plan pro ceedings for the district commissions or this Court “to provide guidance and greater predictabili ty to the applicant and all parties in the review of complex development projects.” Master Plan Poli cy at 1, available at http://www.nrb.state.vt.us/publications/policies/ma sterpmtpolicy.pdf. See also discussion of master plan review and guidance in our Merits Decis ion: In re Killington Village Master Plan Act 250 Application Appeal, No. 147-10-13 Vtec, slip op . at 56–59 (Vt. Super. Ct. Envtl. Div. June 21, 2016) (Durkin, J.).

We therefore revise Condition 13 in the following m anner and will incorporate the revised Condition 13 into the Amended Judgment Order that a ccompanies this Entry Order. The applicable provisions of our Merits Decision are he reby amended by reference to the attached Amended Judgment Order.

13. Traffic Study to be Completed by SPLC.

The permittee shall collect and document traffic co unts along Killington Road and its various intersections, including its inters ection with US Route 4, prior to occupancy of any of the Phase I developments.

The permittee shall also collect and document traff ic counts for the same intersections within one year after completion of P hase I in order to evaluate the actual trip generation rates and traffic impacts of the Phase I projects, and to analyze whether those impacts have caused unreasona ble highway congestion or unsafe traffic conditions or endangered the public investment in the highway networks beyond what was estimated by its experts i n this permit application proceeding. The permittee shall also conduct a sim ilar traffic study five (5) years after substantial completion of Phase I.In re Killington Village Master Plan, No. 147-10-13 Vtec (EO on Mot. to Alter/Amend)(08-29-2016) Page 4 of 7.

Each traffic study shall be consistent with the Tra ffic Impact Study Guidelines (VTrans, 2008 or as most recently amended). The pe rmittee shall submit these
traffic studies to the District Commission within t hirty (30) days of completion and shall make such traffic studies available to any pa rty in any application proceeding concerning a future phase of its Master Plan who sp ecifically requests copies of
such traffic studies.

II. Alterations to Condition 14

The Regional Commissions argue that we improperly i mposed an affirmative obligation on them to conduct post-development traffic studies because the Regional Commissions made no binding commitment at trial and, as non-applican ts, we have no authority to impose such a condition on them. We agree that we erred in fashi oning Condition 14 to obligate the Regional
Commissions to undertake certain traffic studies.

We acknowledge that we only have jurisdiction in th is proceeding to direct the project applicant, SPLC, to take affirmative corrective act ion. As the Regional Commissions are not permit applicants, we have no authority to impose o bligations on them. Nevertheless, because SPLC’s proposed developments are not the only cause of possible traffic increases along the roads and corridors that lead to the Resort and provide a ccess to nearby towns and highways, 1 we are unwilling to impose upon SPLC the entire burden of conducting a corridor traffic study. Rather, acknowledging that we cannot compel other parties t o contribute or participate, we direct SPLC to work with the Regional Commissions, and any othe r entity who materially contributes to the flow of traffic along these corridors, to attempt t o complete a corridor traffic study.

At trial, it was suggested that a corridor traffic study could cost about $100,000.00. Based upon this estimated total cost, and based upon the enormity of SPLC’s proposed project, we directed SPLC to contribute $20,000.00 (the equival ent of twenty percent of the total cost) to the cost of such a corridor traffic study. We clarify here that we only direct that SPLC contribute $20,000.00 if and when an agreement is reached with one or more of the Regional Commissions to actually complete the corridor study. Additiona lly, SPLC shall only contribute $20,000.00 if the total cost of such study remains at approximately $ 100,000.00. To the extent that the costs significantly differ from that prediction, we direc t SPLC to use good faith best efforts to come to an agreement on the appropriate apportionment of co sts.
In our revisions to Condition 14, we have relied up on a similar condition crafted by this Court in In re Champlain Parkway Act 250 Permit, No . 68-5-12 Vtec, slip op. at 16 (Vt. Super. Ct. Envtl. Div. July 30, 2014) (Walsh, J.), aff’d, 2015 VT 105. There, in addition to a directive that th e applicant conduct various traffic studies due to a concern (similar to a concern expressed in our Merits Decision here) that the project may experience unreasonable congestion and may result in unsafe conditions, this Court also directed that the applicant “work in good faith with [the others] to resolve any traffic congestion and safet y issues.” Id. In a similar vein, we direct SPLC to work with the Regional Commissions, the Vermont Agency of Transportation (“VTrans”), and

1 These traffic corridors extend beyond Killington R oad and include US Route 4 west to Rutland and east to Interstate 89; Vermont Route 100, south to Vermont Ro ute 103; and Vermont Route 103 east to Interstate 91

.In re Killington Village Master Plan, No. 147-10-13 Vtec (EO on Mot. to Alter/Amend)(08-29-2016) Page 5 of 7.

any other contributing entity to both conduct these broader corridor traffic studies and to work in good faith with those entities to offer resoluti ons for possible future traffic congestion and safety issues.

We therefore revise Condition 14 and will incorpora te the revised Condition 14, provided below, into the Amended Judgment Order that accompa nies this Entry Order. The applicable provisions of our Merits Decision are amended by re ference in the attached Amended Judgment
Order.

14. Corridor Study to be Completed by Permittee wi th Assistance from Other

Participating Entities.
As part of the next application submitted by SPLC o r any successor that concerns a phase of the Killington Master Plan, the Court encourages the Permittee to use good faith best efforts to coordin ate with one or more of the Regional Commissions, VTrans, and any other entity that contributes traffic to the various highway corridors impacted by the developme nts at the Killington Resort, the Okemo Mountain Ski Resort, and any other major developments along these corridors, which includes Killington Road, U.S. Rou te 4 west to Rutland and east to I-89, Vermont Route 100 south to Vermont Route 103, and Route 103 east to I-91.

This corridor study shall evaluate the traffic impa cts in four distinct scenarios:
(1) Baseline conditions (i.e., pre-construction of Phase I); (2) Estimated built conditions of the Phase II or next planned Phase; (3) Cumulative impacts; and, (4) Killington Village Master Plan in any later ph ases and at full build out.

This corridor traffic study shall be consistent wit h the Traffic Impact Study
Guidelines (VTrans, 2008 or as most recently amended). The s cope of this corridor traffic impact study shall be coordinated with and approved in advance by the Vermont Agency of Transportation.

If SPLC is successful in its efforts to coordinate this corridor traffic study, including the terms of how the corridor study could be overseen by one or more of the Regional Commissions, the permittee shall co ntribute a sum equal to twenty percent (20%) of the total cost for such cor ridor traffic study, unless an alternate amount is agreed to by the participating parties.
If an agreed-upon corridor traffic study is complet ed, the permittee shall submit the corridor traffic study to the District C ommission within thirty (30) days of completion and shall make such traffic study ava ilable to any party in any application proceeding concerning a future phase of its Master Plan who specifically requests a copy.In re Killington Village Master Plan, No. 147-10-13 Vtec (EO on Mot. to Alter/Amend)(08-29-2016) Page 6 of 7.

III. Other Necessary Revisions

Although SPLC chose not to file its own motion to a lter or amend, it did raise several issues in response to the Regional Commissions’ motion. T o the extent necessary, we address SPLC’s remaining concerns here.

First, SPLC objects to the Southern Windsor County Regional Planning Commission (“SWCRPC”) participating in the Regional Commission s’ motion because SWCRPC is not a party in this matter. SPLC correctly notes that the Court d enied SWCRPC party status, but did allow SWCRPC authority to participate as a “friend of the court,” pursuant to 10 V.S.A. §6085(c)(5). See In re Killington Village Master Plan Act 250 App. A ppeal, No. 147-10-13 Vtec, slip op. at 22 (Vt. Super. Ct. Envtl. Div. Aug. 6, 2014) (Durkin, J.) ( “Pre-Trial Motions Decision”). Friend of the court status generally allows the entity to participate i n a legal proceeding, but does not allow that entity to have the right of appeal enjoyed by parti es; the extent to which the entity participates
is within the Court’s discretion and can include of fering trial testimony and the filing of legal memoranda. 10 V.S.A. §6085(c)(5). While our Pre-T rial Motions Decision did not explicitly announce that SWCRPC would be allowed to participat e in the joint filing of pre-or post-trial motions, it joined the other Regional Commissions i n filing pre-trial memoranda and offering testimony at trial without objection from SPLC or a ny other party. We therefore see no basis for excluding SWCRPC from these post-trial matters.

SPLC notes that the Rutland County Regional Plannin g Commission (“RCRPC”) did not sign the Regional Commissions’ and NRB’s most recent rep ly memorandum filed in support of the Regional Commissions’ motion to alter. Applicant d oes not offer how the Court should respond to RCRPC’s apparent lack of participation in the fi ling of the latest reply memoranda. Since RCRPC has not withdrawn its participation in the underlyi ng motion to alter, we decline to take any
action.
Next, SPLC highlights that language in the Court’s original Conditions 13 and 14 imposing obligations on the Permittee and its successors is unnecessary since applicable case law consistently has directed that Act 250 permit terms and conditions run with the land. We agree with Applicant and have removed the surplus languag e from the revised Conditions 13 and 14.

SPLC also identifies several typographical errors i n the Merits Decision and Judgment Order where the Court referenced Applicant in the p lural, when in fact there is only one permittee. We have corrected these typographical e rrors in the Amended Judgment Order and correct similar typographical errors in the Merits Decision by reference. We have also corrected the improper reference to an “Altered Permit” in th e original Judgment Order and corrected the
referenced date of the Act 250 Permit issued below (October 7, 2013).

Further, we are aware that the original Judgment Or der does not contain a specific
reference to our determination that the installatio n of pressurized sprinkler systems in the dwellings constructed within the Ramshead Brook Sub division is not required. We have added language to make clear that this sprinkler installa tion requirement imposed by the District
Commission must be stricken.

Lastly, we decline to strike our directive that SPL C continue to employ a law enforcement officer at the intersection of Killington Road and U.S. Route 4 between 4:00 PM and 5:00 PM onIn re Killington Village Master Plan, No. 147-10-13 Vtec (EO on Mot. to Alter/Amend)(08-29-2016) Page 7 of 7.

Saturdays in December and January to assist in the flow of traffic. While we recognize that the parties understand that this obligation originated in an Act 250 permit from 1985 and believe that this permit obligation is now only imposed upo n the current operator of the ski resort facilities—Killington/Pico Ski Resort Partners, LLC (“KPSRP”)—we note that the permit condition was crafted at a time when the lands and improvemen ts now separately owned by KPSRP and SPLC were owned and controlled by a single entity. Further, given that we have concluded that SPLC’s Phase I improvements will generate additiona l off mountain traffic, we conclude that SPLC must contribute to the positioning of a law enforce ment officer at the intersection of Killington Road and U.S. Route 4 during times of higher traffi c flow.

For all these reasons, we hereby GRANT the Regional Commissions’ post-trial motion to alter or amend and have crafted the Amended Judgmen t Order that accompanies this Entry Order to reflect these changes. The applicable pro visions of our Merits Decision are hereby amended by reference to the attached Amended Judgme nt Order.

So ordered.

Electronically signed on August 29, 2016 at Newfane , Vermont, pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Judge
Environmental Division

Notifications: Christopher D. Roy (ERN 1352), Attorney for Appella nt SP Land Company, LLC Gregory J. Boulbol (ERN 1712), Attorney for Interes ted Person Natural Resources Board Elizabeth Lord (ERN 4256), Attorney for Interested Person Agency of Natural Resources Nathan H. Stearns (ERN 3585) and C. Daniel Hershens on (ERN 3586), Attorneys for Cross Appellants Stephen Durkee, Mountainside Prope rties, Inc., Mountainside Development, Inc., Fireside Properties, LLC, and Ki llington Village Prop. Inc. Robert E. Woolmington (ERN 3047), Attorney for Rutl and County Regional Planning Comm., Two Rivers Ottauquechee Regional Comm., and So. Win dsor County Regional Planning
Comm. Melvin B. Neisner (ERN 3792), Attorney for Interest ed Persons Sherburne Volunteer Fire Dept., Edgmont HOA and Mike Moriaty, o/b/o Mountain Green Condo Assoc. Jon S. Readnour (ERN 2166), Attorney for Interested Person Pinnacle Condo. Association, Inc Carl H. Lisman (ERN 3882), Attorney for Interested Person Highridge Condominium Owners'
Assoc.

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