Court hands down amended decision for Killington Village permit

By Karen D. Lorentz
Judge Thomas S. Durkin, the Environmental Court judge who heard the Killington Village Act 250 permit appeals and rendered a June 21 merits decision and judgment order affirming the District #1 Environmental Commission’s permit subject to conditions, ruled on a motion to alter that decision in an Aug. 29 amended judgment order.
At issue in the July 1 Motion to alter was the objection by the Rutland, Two Rivers-Ottauquechee and Southern Windsor County regional planning commissions to the court imposing a condition requiring them to complete a corridor study and their proposed revised wording for conditions 14 and 13 regarding a corridor study and traffic studies in Killington.
Corridor study, condition 14
In his amended judgment order, Judge Durkin granted the regional commissions’ motion and revised the challenged conditions.
He noted that the regional commissions in arguing for an alteration of the judgment order offered a clarification that “while advocating for a corridor study, they did not intend to make any commitment to undertake such a study.” He also acknowledged their point that since they were “not the permit applicant, the court has no authority to impose permit obligations on them.”
In his explanation regarding granting their motion to alter, Judge Durkin acknowledged the court’s error and agreed that the court only has jurisdiction to direct the project applicant to take action. Since SP Land agreed the regional commissions were not subject to permit conditions being imposed on them, the granting of that correction was expected.
At the same time, however, the court recognized SP Land’s contention that Phase I of the village plan cannot be considered as the only possible cause of future “traffic increases along the roads and corridors that lead to the Resort and provide access to nearby towns and highways.” The court was therefore “unwilling to impose upon SPLC the entire burden of conducting a corridor traffic study.” (Judge Durkin notes that traffic corridors go beyond the Killington Road west to Rutland and east to I-89 and also include VT routes 100 and 103 to I-91.)
As part of any future application (for Phase II of the master plan), the judge directs SP Land to “work with the Regional Commissions, and any other entity who materially contributes to the flow of traffic along these corridors, to attempt to complete a corridor traffic study.” He also limits SP Land’s contribution for the cost of any agreed upon corridor study to 20 percent of the total cost, unless an alternate amount is agreed to by the participating parties.
Traffic studies, condition 13
While SP Land did not file a motion to alter the June 21 judgment order, which contained traffic study requirements regarding the Killington Road and its intersection with U.S. Route 4, they did respond to the motion to alter and condition 13 wording, citing very recent (new) case law in support of their position that they should not have to conduct any further traffic studies since they had met the conditions for criterion 5 which addresses traffic impacts.
SP Land noted that they had applied for a permit for Phase I only and that a Vermont Supreme Court decision (Treetop, Feb. 12, 2016) had bearing on and was reflected in the recent July 7 Hannaford/Hinesburg decision by the Environmental Court with those decisions presenting new guidelines that eliminate post-decisional traffic or corridor studies as permit conditions and that the new cases forbid extended police powers over a project once a district commission grants a permit.
However, the judge distinguished between the case law cited and the Act 250 village permit, determining that traffic studies are in order to corroborate that the findings presented at the Act 250 hearings (by traffic study experts) were indeed correct. Thus, he retained the requirement that SP Land collect and document traffic counts along Killington Road and its various intersections prior to occupancy of any of the Phase I developments as well as one year and five years after completion of Phase I.
SP Land had been able to live with the June 21 decision and had not filed a motion to alter it so this traffic study finding is not viewed as a major setback, Selbo said. The limitations on corridor study costs and recognition that potential traffic increases are not necessarily all related to village growth are good news along with the court agreeing that sprinkler systems should not be required in homes at Ramshead Brook as originally conditioned by the District #1 commission and opposed by SP Land in its appeal.
While focusing on the motion regarding traffic under criterion 5, the amended judgment order also contains specific language that the sprinkler systems will not [court’s emphasis] be required for the Ramshead Brook Subdivision residential dwellings. Judge Durkin explains that because the June 21 order did not contain specific reference to the court’s determination that the sprinkler condition be stricken, he was including language making it clear now.
The next step is an administrative one which involves the District #1 environmental commission issuing a permit incorporating the provisions of the amended judgment order along with the conditions that were not appealed in the original Oct. 7, 2013 permit.
Parties have 30 days to appeal the permit to the Vermont Supreme Court.