On December 9, 2020

Battle over Estabrook Road rental

By Curt Peterson

On Dec. 1 the Killington board of health voted unanimously to pursue a public health order (PHO) regarding an alleged septic system failure 287 Estabrook Road, a short-term rental property belonging to Killington Mountain House LLC (KMH) and Vincent Connolly. A Dec. 15 public hearing will determine whether the PHO will be served.

The PHO would prohibit occupancy until “a wastewater system and potable water supply permit is obtained from the Vermont Dept. of Environmental Conservation.”

Connolly provided a report from SepticPro of Brattleboro citing a Sept. 29 inspection, which said, “We found that the system was not in failure and operating in accordance with the state regulatory standards.”

If the PHO is issued, KMH will have 30 days to appeal to the state board of health. In the meantime, Connolly said the property is not advertised for rent and a new five-bedroom septic system is going to be installed.

Killington town Health Officer Preston Bristow said he received SepticPro’s inspection report, and spoke with Stephen Pro, owner of SepticPro for clarification.

“Stephen Pro told me he rated the system as ‘poor’ and that is why [Connolly is] replacing it. He told me there was pooling of water around the septic tank, which is not technically a failure, but I would still consider a [health] risk. He also told me the system, while not technically failed, would need to be ‘babied’ until a replacement system was in place,” Bristow wrote in an email.

“If he presents state certification that an acceptable five-bedroom wastewater system is installed, I will give him the permit for a five-bedroom home,” Bristow told the Mountain Times.

Under the new short-term rental regulations the five-bedroom septic system would allow occupancy of “two persons per bedroom, plus two”, for a maximum of 12 persons.

Issues involving this property are not new.

Then Planning and Zoning Administrator Dick Horner cited Connelly for operating a commercial property in a residential zone in August 2018.

Connolly feels his property has been singled out following his visible month-long 2018 presence at the site with his wife, who is Black, and their biracial children.

“Two weeks [later] my neighbor began lodging complaints about my septic, the noise, and the safety of the home. All of this comes after 13 years of conducting business … without a single issue whatsoever,” Connelly wrote in an email.

Montgomery was one of 15 neighbors named as complainants by the Environmental Court on Nov. 13, 2019.

Connolly declared the three-bedroom home his primary residence when purchased in 2005, but immediately advertised it as a short-term, four-bedroom rental accommodating up to 32 occupants in 19 beds.

Accommodations for 16 or more are categorized under the “hotel” category, according to the state, requiring sprinkler systems. Connolly installed sprinklers in 2014, but Horner said advertising the home for more than six occupants – two per bedroom – still violated the town’s residential zoning.

Connolly said his high-capacity rental was legal, based on DFS certification of his sprinkler system.

The Zoning board of adjustment upheld the violation. Connolly appealed to the state Environmental Court, arguing his rental was a “grandfathered” lawful pre-existing non-conforming use that  he was renting prior to the occupancy limit imposition in 2007.

The town argued that commercial use in 2005 without the necessary permit disqualified commercial use of the property as “lawful.”

“Connolly did not undergo an inspection or obtain a public building permit until after Jan. 29, 2014,” the court wrote.

On Nov. 13, 2019 the Environmental Court noted KMH has consistently claimed “commercial use” on tax forms, and upheld the town’s zoning violation accusation.

Connolly avers discrimination is the root of the town’s actions. The environmental court has suggested he revise the questions for the town and the court to clarify those claims, and will set a hearing of the amendments after Dec. 7.

Police Chief Whit Montgomery, one of Connolly’s neighbors, called Connolly’s suspicions of racial motivations for complaints about the KMH property “concerning, disturbing” and “blatently false.”

Connolly said he would like to keep the house to rent as a legal five-bedroom, but his wife and children disagree. He has listed it for sale.

“This has crippled us financially, emotionally, and spiritually. We have exhausted all … viable options to resolve this with the town in a logical, reasonable way. We decided with very heavy hearts to list our home for sale 100% in response to the feelings of prejudice that surrounded us,” he wrote.

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