On July 9, 2014

Act 250 permits: Reactions and progress

By Karen D. Lorentz posted Oct 23, 2013

Editor’s note: This is the third article in a series on the new Act 250 permits issued Oct. 7 for Phase 1 of Killington Village. The previous two articles by Lorentz covered the details of each permit, this week she gets reactions on conditions and timelines from those close to the projects.

KILLINGTON – The District #1 Environmental Commission recently issued permits to SP Land Company for Phase I of the Killington Village Master Plan and to Killington/Pico Ski Resort Partners Resort for the Resort Parking Project that also included various infrastructure projects. Both permits were issued with several conditions in addition to the general conditions that usually accompany construction permits.

Mike Solimano, president and general manager of Killington and Pico, was asked to comment on two conditions of the Resort permit, one of which differed from the Resort’s original request for a 10-year construction period by imposing a 5-year period.

The condition stipulates that, “The permit shall expire five years from the date of issuance if the Permittee has not commenced construction and made substantial progress toward completion within the five year period.” It further states, “All site work and construction shall be completed in accordance with the approved plans by October 15, 2020, unless an extension of this date is approved in writing by the Commission.”

Solimano indicated that this was not a problem for the Resort, explaining that, “Generally, extension of Act 250 permits – especially the first one – are fairly standard.” [A provision in the permit provides that extension “approval may be granted without public hearing.”]

Asked about the expense and effort that must be undertaken regarding a study of a sawdust pile (a “condition” of the Act 250 permit), Solimano noted that this was not a problem. “The “Phase II” analysis for the Sawdust Pile is not that expensive, and the consultant does not expect to find anything of major importance that would delay us moving forward,” he said.

Regarding a timetable for the Resort Parking Project (the permit includes approvals for: a new day-skier parking lot for 1,276 vehicles; realignment of a portion of Killington Road; reconfiguration of the Grand Hotel Parking Lot; a stormwater detention pond, and associated utilities), Solimano commented: “Similar to the Killington Road work and some other utility work, it would be good to get the construction of the Resort Parking Project done a year before construction commences on Phase I buildings. The key word is one year before. Since Phase I doesn’t yet have a timetable, we can’t offer a timetable for the Resort Parking Project.”

Asked to comment on the permit overall, Solimano said, “We are pleased that we have reached this point in the process. We are cautiously optimistic. The Resort’s Parking Project permit is relatively straightforward and workable. We don’t foresee anyadditional issues at this point in time.”

Killington Village Permit Reaction
When asked about the Village Master Plan Permit, attorney David Rosenblum who is also chairman of the Killington Planning Commission said that he sees “two conditions in the permit, which don’t seem to be supported by the evidence.”

One concerns a requirement that houses built on the lots in the Ramshead Brook Subdivision must have sprinkler systems. Noting that he thinks “authority for such a requirement may rest with Vermont Department of Fire Safety,” Rosenblum raised a further issue of practicality.

“Given the likelihood of electric power being lost in winter, what good is the system if there’s no electric to drive the pumps and water? It could therefore be an unreasonable demand,” he opined.

He also questioned “where the water supply would come from as there is no municipal system to feed the project” and noted the potential for damage from a freeze up.

Given such considerations, Rosenblum stated, “While this may appear to be a good idea, I am not convinced that this is a practical requirement nor that it will work as intended.”

Rosenblum also took exception to the requirements imposed on SP Land Company for future traffic studies and mitigation, noting he finds the conditions “horrendous.”

“It is too large a geographical area and puts too much responsibility on the developer; that responsibility really belongs with the state Agency of Transportation (VTrans) which has jurisdiction over the roads,” he stated.

“The conditions also overlook the substantial tax revenues the development will bring in that could fund the studies and any needed improvements,” Rosenblum added, noting the gasoline tax is but one that is used to improve roads.

He cited “property transfer tax revenues (1.25 percent of the purchase price of a residence)” as bringing in millions of dollars to the state. “A percentage of that is supposed to go for planning costs, so the revenues that the sale of Village units will bring in could provide the funds needed for studies and any necessary improvements. Accordingly, the requirements imposed on SP Land seem counter productive,” he stated.

[With the estimated Phase I project cost at over $100 million, sales prices of units would have to be higher (to cover costs) and therefore property transfer taxes would generate more than $1 million in tax revenues. Additionally, ongoing property transfer taxes from sales of other properties in town would add to that amount and result in considerable sums that could be used for studies and improvements.]

Another issue Rosenblum sees concerns traffic impacts. “In the days of peak visits when the Resort was still growing skier visits, our region planned for traffic impacts. Rutland County prepared for increased traffic back in the 1970s and 1980s; Route 4 south of Rutland became a divided highway [the “bypass” route] and improvements were made on Route 7 as well as on Route 4 from Rutland to Killington.

“Improvements were made that enabled us to handle at least one million skier visits, but they are actually less now.

“I question if the others, the two regional planning commissions that cover Woodstock and Ludlow, did the same. Yet, Okemo had major increase in visits (about fourfold) and generated more traffic, but the routes to the highways that serve Okemo skiers were not similarly improved.

“They generated more traffic; but what we will generate will not exceed anything that was handled in the past so why should any burden be put on SP Land to pay for studies and improvements for those roads?

“That is the nexus of my problem with the permit requiring payment for studies and mitigation, especially given this is a legitimate purpose of government,” Rosenblum concluded. [The permit stipulates that the 50-percent public funding portion of the study will be paid by the three regional planning commissions and VTrans but that SP Land pays 100 percent of the private portion of funding in the three-region area.]

Asked about Rosenblum’s comments, SP Land President Steve Selbo said he agreed with him, noting that he had “objected to the terms for payment of the traffic studies as well as the open-ended mitigation costs for traffic impacts all the way to I-89 and I-91 [during the hearings]. That remains problematic for SP Land,” he stated.

But as for any plans to appeal the permit, Selbo said, “We are still studying the permit – the findings of fact, conclusions of law, and conditions. We’re analyzing them to see if we can make the Village Master Plan project work within that framework,” thus no decision as to an appeal had been reached, he noted.

Appeals Process
There are two provisions for a party to appeal an Act 250 permit. One specifies that: “Any party may file a motion to alter with the District Commission within 15 days from the date of this decision . . . ” [The rules state that “All requested alterations must be based on a proposed reconsideration of the existing record.”]

Attorney Jon Readnour, who is familiar with the Act 250 process, explained that the provision to alter enables a party to point out an error or reason something should be changed. It could be a legal error or misunderstanding of a fact. The filing to alter gives the district commission an opportunity to reconsider something based on the existing record, whether it concerned a factual error or misinterpretation, he noted.

Bill Burke, District #1 Environmental Commission Co-ordinator, said that if any such filings are received, they become public information as soon as received. At press time (Oct. 21) no one had filed such a motion (for the Oct. 22 deadline).

A second Act 250 provision states: “Any appeal of this decision must be filed with the Superior Court, Environmental Division within 30 days of the date the decision was issued.”

Should any appeal(s) be received by Nov. 6, the Superior Court’s Environmental Division would have to consider the appeal on its merits, Readnour noted. The Environmental Division will generally hear any appeal that is timely filed and based upon legitimate grounds. However, the Environmental Division would hear the appeal de novo, meaning they would hear the case over again on the issues that were filed by the appellant. They could also conduct site visits to assist in rendering a decision. (Although this court is located in Barre, they often hold hearings locally.)

The Environmental Division could uphold a permit in its entirety or modify it to address the issues raised in the appeal; it could also send it back to the District Environmental Commission, but that seems to be a rare occurrence, Readnour noted.

A party could also appeal the Environmental Division’s decision to the state’s Supreme Court within 30 days; however, the Supreme Court does not hear the case de novo.

Next Steps
Appeals are expensive and time consuming and would delay plans for the Village.

If there are no appeals, the next step for SP Land Company will be to look for a qualified developer(s) to build Phase I. The developer could be a joint-venture partner with SP Land or could purchase land and proceed independently.

In the meantime, SP Land is seeking an updated approval for its PUD Conceptual Master Plan approval (see page 2) in accordance with 2012 Town Zoning Bylaw changes.

SP Land will go back to the Town of Killington with specific plans for Phase I buildings to get final construction approvals when ready to start the project. Similarly, the Ramshead Brook Subdivision homes will require additional information in the form of an addendum to the Act 250 permit.

For the aforementioned reasons, it is impossible for Selbo to give a specific timetable for Village construction or even when the Resort’s Parking Project might be started. He remains “cautiously optimistic,” however, that progress will continue to be made.

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