By Karen D. Lorentz
There has been some progress concerning the Killington Village Master Plan and Resort Parking Project permits that were issued by the District #1 Environmental Commission on October 7, 2013 but then appealed.
Judge Thomas S. Durkin, who is presiding over the two appeals before the Superior Court’s Environmental Division (aka the Environmental Court), rendered two decisions, which largely centered on pre-trial motions and the issue of party status. He set the dates for the two cases, which will be heard separately — with the parking project case set for October 29 and the Village appeal starting on December 1. The Environmental Court can uphold the permits in their entirety or modify them to address the issues raised in the appeal.
While the two permit applications were consolidated by the District # 1 Environmental Commission (Commission) for its review process, the parties agreed that the appeals “should proceed on parallel but separate tracks and will therefore not be consolidated,” wrote Judge Durkin. (Since filing the initial application for the Resort Parking Project in February 2012, ownership of the parking project was subsequently transferred from MTB Killington, AMSC Killington and SP II Resort, as tenants-in-common, to Killington/Pico Ski Resort Partners, LLC, which is handling the appeal to the permit.)
The Environmental Court is a trial court that considers an appeal on its merits and generally hears any appeal that is timely filed and based upon legitimate grounds. In accordance with court rules, Judge Durkin will be hearing each appeal de novo, meaning that the judge hears all the evidence on the issues raised in the appeal as if the hearing had never happened at the District Commission level (hearings which took place in May/June 2012).
In addressing a motion by the Natural Resources Board to dismiss two of the questions put to the Court by SP Land, Judge Durkin emphasized the de novo aspects: “In considering this question, we need not, and will not, consider the record before the Commission or its decision. Rather, we have the authority to consider whether the conditions raised in these questions are appropriate with respect to the Act 250 criteria. To the extent these questions seek to challenge whether this Court should impose conditions similar to those placed on SPLC by the Commission, we conclude that these questions are appropriately before us.”
Killington Village appeal progress
Last October SP Land received approvals for a 15- lot subdivision; reaffirmation of a previously-approved 10-lot subdivision; authorization to construct Phase I of the Killington Village Master Plan; associated partial findings for proposed future phases of the Killington Village Master Plan.
However, SP Land President Steve Selbo said that after careful examination, it was determined that SP Land could not figure out a way to make the Village Master Plan project work within the permit’s framework. After filing a Notice of Appeal in 2013, he prepared the required ‘statement of questions’ for the case, which basically defines the scope for both the judge and the various statutory parties.
The questions essentially give notice of SP Land’s objections to issues centering on conditions imposed regarding the Act 250 Criterion 5 (traffic) and to conditions imposing sprinklers on all buildings, including private homes in the Ramshead Brook development. They also address party status.
A cross appeal was also filed by Mendon resident Stephen Durkee for two properties he owns in Killington and four Killington commercial properties of which he owns a controlling interest. Mr. Durkee and the Durkee Entities filed a response in opposition to SP Land’s motion for partial summary judgment.
In addition to SP Land’s motion for partial summary judgment, the Natural Resources Board (NRB) filed a cross-motion for partial summary judgment as well as a motion to dismiss or clarify certain aforementioned questions in SP Land’s Statement of Questions.
The three Regional Planning Commissions that took part in the Act 250 hearings filed memoranda in opposition to SP Land’s motion for partial summary judgment and in support of the NRB’s motion to dismiss or clarify questions.
Party status for Village appeal
In his 28-page August 6 decision, Judge Durkin addressed at considerable length the issue of party status. While he noted that ten entities were granted final party status by the Commission, he found that two of those parties did not file responses to the appeal or a Notice of Appearance and therefore the questions SP Land raised concerning the party status for resident Charlie Demarest and the Town of Bridgewater were dismissed. Okemo Limited Liability Company had already withdrawn its request for party status for the Act 250 hearings and had not filed so SP Land’s question regarding Okemo’s party status was similarly dismissed.
Judge Durkin also granted SP Land’s request and denied party status to the Southern Windsor County Regional Planning Commission, explaining that the Town of Killington in which the project is located is neither a SWCRPC member town nor borders any of SWCRPC member towns.
However, he added that they could present information as a “friend of the court.” (This denies them the ability to appeal any further decisions.)
The Two Rivers-Ottauquechee Regional Commission did retain its statutory party status as Bridgewater is a member and also shares a border with the Town of Killington.
Judge Durkin reduced Steve Durkee’s party status for his commercial properties, which include Mountainside Development, Mountainside Properties, Fireside Properties, LLC, and Killington Village Properties (referred to as Durkee Entities) to only criteria 8 (aesthetics) and/or 10 (Regional Plan). He eliminated criteria 5 (Traffic) and 9(K) (Public Investments) for all the Durkee Entities) and eliminated party status for Criteria 4 (Soil Erosion) and 9(K) for his personal properties. Whereas the Commission had granted party status in 40 instances, Judge Durkin limited his standing to 13 instances.
One of the guidelines Judge Durkin explains in his findings is that to have party status which is opposed in an appeal, an aggrieved party must show that they have “a particularized interest” that goes beyond injury to the general public. “To have standing in this Court as a ‘person aggrieved’ by a district commission decision, an appellant must allege ‘an injury to a particularized interest’ protected by Act 250 that is attributable to the decision and that can be redressed by this Court on appeal. . . . Specifically, the person asserting party status must first allege an interest protected by Act 250 that is particular to them, rather than a general policy concern shared with the public. Second, the appellant must show a reasonable possibility that the Commission decision may affect its particularized interest.”
Although Judge Durkin granted many requests in SP Land’s favor, he also said that he would consider testimony anew (at the trial) on several issues raised, including those questions regarding the propriety of proportional payments regarding traffic mitigation, sprinklers for all buildings, and certain findings and conditions affecting future phases of the Village.
Steve Selbo told MT that while SP Land was “encouraged” by Judge Durkin’s findings, “the trial will be a little longer than we had hoped as he will listen to testimony on some things he wanted to wait to rule on.”
He also explained that “the way the District Commission wrote their decision had given Steve Durkee more appeal rights. This reduces the number of items he may appeal on. That’s positive for us because he owns several entities and this limits his party status.”
Selbo said that Judge Durkin asked for a response to a request for more specific information regarding Question 13 by August 19, explaining that it is more of a clarification of terms. Then, it’s on to preparing for the hearing, which is expected to take four days, Selbo said.
Resort Parking Project permit
Steve Durkee, both for his two personal properties and five commercial properties, filed an appeal to the Resort Parking Project Permit and raised issues regarding Act 250 Criteria in his Statement of Questions. Those Criteria included: 1(E) (Streams), 5 (Traffic), 8 (Aesthetics), 9(K) (Public Investment), and 10 (Regional Plan).
The Resort Parking Project Permit is for construction of a day-skier parking lot for 1,276 vehicles to replace existing day-skier parking areas; realignment of a portion of Killington Road; reconfiguration of the Killington Grand Hotel parking lot; and construction of a storm water basin and associated utilities.
In its motion, Killington/Pico Ski Resort Partners, LLC, sought to eliminate each Appellant’s party status under Criteria 5 and 9(K) and to eliminate party status under Criterion 8 (Aesthetics) for all Appellants other than MPI on East Mountain Road.
Whereas the Commission had granted party status in 27 instances, KPSRP agreed to nine and Durkee’s argument to the Court listed 21 instances for the appeal. In his 12-page decision, Judge Durkin granted statutory party status in ten instances, adding party status for Criterion 8 to the Mountainside Development Property and “provisional status” for Criterion 5 for the personal properties only.
In explaining the provisional granting, Judge Durkin wrote: “The provisional nature of this grant is a result of the minimal factual information before the Court regarding how regularly and for what purpose Mr. Durkee uses the roads at issue. Depending on further factual presentation, it may be that Mr. Durkee cannot establish even a reasonable possibility that any interest he has may be affected by the Parking Project. However, viewing the facts before the Court most favorably to Mr. Durkee, we cannot say that his claims under Criterion 5 should be dismissed at this time,” Judge Durkin wrote in his 12-page August 5 decision.
As with the Village appeal, this appeal will be heard de novo with the judge weighing the testimony presented in the Environmental Court.
Next steps for projects
If the Environmental Court’s decision works for SP Land, then they could proceed with a search for a qualified developer to build Phase I. The developer could be a joint-venture partner with SP Land or could purchase land and proceed independently. The Resort Parking Project would proceed in concert with the Village development as replacement parking is needed to make way for any development.
For any party which objects to the ruling by the Environmental Court, the next step would be to appeal the decision to the state’s Supreme Court within thirty days. However, the Supreme Court does not hear the case de novo. Instead, members of the Supreme Court look at the Environmental Court’s decision and consider the evidence that was submitted on the record in its hearing. The time for a decision whether to hear the case and then the actual hearing could take as long as a year or two.