Rutland Herald
By Lola Duffort
STAFF WRITER | July 26,2016
STAFF WRITER | July 26,2016
KILLINGTON — The long and winding legal wrangle to build a ski village for Killington Mountain Resort is not over.
Regional planning commissions filed an appeal July 1 to amend a decision issued late last month by Environmental Court Judge Thomas Durkin affirming an Act 250 permit for the first phase of the Killington Ski Village project.
The Rutland Regional Planning Commission, Two Rivers-Ottauquechee Regional Commission and Southern Windsor County Regional Planning Commission wrote to the court saying they never agreed to shoulder the cost of a corridor study regarding the project’s next phases.
Durkin in his decision included a condition that SP Land Company, the project’s developer, contribute $20,000 to such a study, which would be conducted by the regional planning commissions.
The commissions wrote in their motion to appeal that while they had supported such a study, they had always maintained its costs should be shouldered entirely by the permittee.
“The Regional Commissions are not applicants or permittees, and the Court lacks any authority to impose permit obligations on the RPCs absent their consent,” the commissions wrote in their July motion. “Nor does the Court have the authority to order the RPCs to expend funds. Because the RPCs have not proposed, and have not consented to produce and finance the studies, Condition 14 must be altered and amended.”
SP Land responded in mid-July to the motion, agreeing that since the planning commissions weren’t parties to the case, they couldn’t be compelled to take action or spend money in relation to it.
But SP Land attorney Christopher Roy also argued that Durkin ought to consider jettisoning all post-decision traffic studies. Durkin mandated two studies in his decision — one to be conducted by SP Land on the project’s first phase; another to be conducted by the commissions, with partial financing from SP Land, on the project’s next phases.
Roy argued that while it has been common for developers to agree to such studies during the permitting process, recent Vermont Supreme Court and Superior Court decisions called the practice into question.
“The logic of this holding is straightforward,” Roy wrote in reference to a Supreme Court decision in February that nixed periodic post-construction inspection of a stormwater system from a permit tied to an Okemo development.
“An applicant must meet its burdens of production and persuasion with respect to each of the Act 250 criteria,” Roy added. “If it does so to the District Commission’s or the Court’s satisfaction, then a permit should be issued. … Alternatively, if the applicant fails to construct the project in conformance with its application and permit, enforcement is a matter for others, such as the Vermont Natural Resources Board, to handle.”
Roy also noted in an interview Monday the developer had already conducted a traffic study, and expected to conduct additional studies if it decided to go forward with the next phases of the project — which would require a new Act 250 permit.
Phase I of the project, which this Act 250 proceeding concerns, includes the village’s core and a 32-unit subdivision just north of it. The core includes plans for 193 housing units, 31,622 square feet of commercial space, 7,000 square feet of replacement skier service areas within two new base lodge buildings, the relocation of a portion of Killington and East Mountain roads, additional parking areas, and a village green.
The project ultimately envisions creating in several phases 2,300 residential units, a 77,000-square-foot skier services building, 32 new residential lots and about 200,000 square feet of retail space over the next 20 to 30 years.
Once the court responds to the regional planning commissions’ motion, parties will have 30 days to appeal the decision to the Vermont Supreme Court. There is no deadline for the court to respond to the motion, but Roy said he expected a decision relatively soon.
lola.duffort@rutlandherald.com
Regional planning commissions filed an appeal July 1 to amend a decision issued late last month by Environmental Court Judge Thomas Durkin affirming an Act 250 permit for the first phase of the Killington Ski Village project.
The Rutland Regional Planning Commission, Two Rivers-Ottauquechee Regional Commission and Southern Windsor County Regional Planning Commission wrote to the court saying they never agreed to shoulder the cost of a corridor study regarding the project’s next phases.
Durkin in his decision included a condition that SP Land Company, the project’s developer, contribute $20,000 to such a study, which would be conducted by the regional planning commissions.
The commissions wrote in their motion to appeal that while they had supported such a study, they had always maintained its costs should be shouldered entirely by the permittee.
“The Regional Commissions are not applicants or permittees, and the Court lacks any authority to impose permit obligations on the RPCs absent their consent,” the commissions wrote in their July motion. “Nor does the Court have the authority to order the RPCs to expend funds. Because the RPCs have not proposed, and have not consented to produce and finance the studies, Condition 14 must be altered and amended.”
SP Land responded in mid-July to the motion, agreeing that since the planning commissions weren’t parties to the case, they couldn’t be compelled to take action or spend money in relation to it.
But SP Land attorney Christopher Roy also argued that Durkin ought to consider jettisoning all post-decision traffic studies. Durkin mandated two studies in his decision — one to be conducted by SP Land on the project’s first phase; another to be conducted by the commissions, with partial financing from SP Land, on the project’s next phases.
Roy argued that while it has been common for developers to agree to such studies during the permitting process, recent Vermont Supreme Court and Superior Court decisions called the practice into question.
“The logic of this holding is straightforward,” Roy wrote in reference to a Supreme Court decision in February that nixed periodic post-construction inspection of a stormwater system from a permit tied to an Okemo development.
“An applicant must meet its burdens of production and persuasion with respect to each of the Act 250 criteria,” Roy added. “If it does so to the District Commission’s or the Court’s satisfaction, then a permit should be issued. … Alternatively, if the applicant fails to construct the project in conformance with its application and permit, enforcement is a matter for others, such as the Vermont Natural Resources Board, to handle.”
Roy also noted in an interview Monday the developer had already conducted a traffic study, and expected to conduct additional studies if it decided to go forward with the next phases of the project — which would require a new Act 250 permit.
Phase I of the project, which this Act 250 proceeding concerns, includes the village’s core and a 32-unit subdivision just north of it. The core includes plans for 193 housing units, 31,622 square feet of commercial space, 7,000 square feet of replacement skier service areas within two new base lodge buildings, the relocation of a portion of Killington and East Mountain roads, additional parking areas, and a village green.
The project ultimately envisions creating in several phases 2,300 residential units, a 77,000-square-foot skier services building, 32 new residential lots and about 200,000 square feet of retail space over the next 20 to 30 years.
Once the court responds to the regional planning commissions’ motion, parties will have 30 days to appeal the decision to the Vermont Supreme Court. There is no deadline for the court to respond to the motion, but Roy said he expected a decision relatively soon.
lola.duffort@rutlandherald.com
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