By Karen D. Lorentz
The Rutland County Regional Planning Commission, Two Rivers-Ottauquechee Regional Commission and Southern Windsor County Regional Planning Commissions have filed a Motion to Alter and Amend the Permit Conditions that were imposed regarding traffic studies in the June 21 Environmental Court decision regarding the Killington Village.
In that decision Judge Thomas S. Durkin largely agreed with the arguments made by SP Land Company in its appeal of certain conditions and findings imposed in its District #1 Act 250 permit. The judgment order also included some new conditions regarding traffic studies.
The Regional Planning Commissions (RPCs) specifically objected to the Court “imposing Condition 14” which requires “the Regional Commissions to complete a master plan traffic study” as well as ordering the permittee SP Land to pay $20,000 toward the studies.
Regarding a finding that “the Regional Commissions have pledged to complete a regional corridor study of resort-generated traffic,” the RPCs note that they “have not pledged to fund and undertake the study themselves” and state that the “condition is based on a mistake of fact.”
They also reiterate their prior contention given in testimony before the Court that “the responsibility for conducting the traffic impact study for this development” rests on the permittee(s). The RPCs further contend that the Court cannot impose conditions on them as they are not the party seeking the permit.
In their Motion to Alter and Amend, the Regional Planning Commissions suggest their own wording for conditions 13 and 14.
Their proposed Condition 13 states a “Traffic Study to be completed by SPLC” and adjusts the scope of the data gathering in connection with the current phase with the scope of the studies to be conducted in connection with future phases.
The proposal for Condition 14 is adjusted to delete the payment obligation of the permittee SP Land, contending that “a specific financial condition is not appropriate at this time.” It also provides for “a collaborative planning process to review the scope of and responsibility for traffic studies to be conducted prior to application for any future phase” and includes a dispute resolution provision.
Asked for comment, SP Land President Steven Selbo said he does not agree with the RPCs’ proposed conditions. He is currently working on his response to the Motion to Alter and Amend the traffic conditions.
Noting he has previously agreed to a 50-50 public/private split to pay for corridor traffic impact studies, Selbo said that there are other resorts—at Quechee, Okemo, Suicide Six and Woodstock—which have expansion projects by private developers that can also impact traffic, especially in corridors like Routes 103 to I-91 in the case of Ludlow area developments and along US Route 4 to I-89 where improvements at Quechee Village and in the Woodstock area may impact traffic.
He noted that additional Killington Resort skier visits could also impact traffic and that all private parties should be considered in sharing private sector funding, not just SP Land. (The RPCs also receive some funding from the 1.25 percent Property Transfer Tax, which is assessed on sales of residences like those SP Land is proposing for the Killington Village, specifically to help them fund such studies.)
Proportional funding precedent
The case for proportional funding where traffic impacts exist was made in a July 7 Environmental Court cecision regarding Motions to Reconsider a Hinesburg Hannaford Act 250 permit.
Because the Court heard testimony from the applicant that its project would only contribute about nine percent of the overall traffic at an already congested intersection and thus should only be required to pay 9 percent of the total cost of a new traffic signal (and offered to pay $25,000 toward it as mitigation), the permit had been granted requiring the installation and proportional share payment.
Noting it was “uncontested that the project was not the sole cause of the traffic concerns at the intersection,” the Court stated that the appellants had had the opportunity to present further evidence as to cost sharing at the Act 250 permit hearings and had failed to do so, and therefore upheld its original finding as to the required mitigation and did not amend the permit to require Hannaford to pay for the entire signal light.
Asked about the complexity of traffic issues, Selbo noted that a recent Vermont law was passed by the legislature to address the complicated issues related to traffic and created traffic improvements districts. However, VTrans has not yet created the rules to go with that law. As a result, issues concerning traffic impacts and who pays for them continue to complicate — and delay — the permit process as it relates to Act 250 Criterion 5 (the traffic signal is a condition to the Hannaford project).
Next steps regarding Village permit conditions
Judge Durkin must now decide whether to accept the Motion to Alter and Amend and can then alter his findings or uphold the permit in its entirety. (Should he do the latter, the RPCs have 30 days in which to appeal to the Vermont Supreme Court.)
If he decides to alter his findings, Judge Durkin considers both the Motion and SP Land’s Response. Once he makes his ruling in regard to the traffic study issue, either party can appeal it to the Vermont Supreme Court.
If any appeals are made, Court members look at the Environmental Court’s decision and consider the evidence that was submitted on the record in its hearings. Brief testimony can be given by the parties.
The bottom line is that the permit process for a Killington Village entails more delays but fewer issues remain to be addressed.