Thu, Nov 7, 2013 07:26 PM
On October 22, Killington/Pico Ski Resort Partners (KPSRP) filed
a Motion to Alter requesting the District # 1 Environmental
Commission to clarify and alter the Land Use Permit for a Resort
Parking Project that was issued on October 7.
The Motion was filed by attorney Peter Van Oot of Downs Rachlin
Martin PLLC on behalf of his client whom he had represented at Act
250 hearings in 2012.
The permit for the Resort Parking Project 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
Unlike an appeal of a permit, which goes to the state's Superior
Court Environmental Division and is based on issues that require a
new hearing, a motion to alter is filed with the District
Commission within 15 days from the date of a decision [permit's
issuance] and deals with more technical concerns like
clarifications or corrections of an error. It also provides that
anyone granted party status may file a response to a Motion to
Alter within 15 days of its filing (a copy of which is sent to all
The Resort's Motion
For the most part KPSRP's requested alterations concern changes in
language to various findings of fact (FOF), conclusions of law
(COL), and conditions in an effort to clarify the meaning and
prevent any confusion. In these cases, a suggested rewording is
given such as in the case in Conditions 26 and 27 when times of
commencement and substantial completion appear incongruous with a
completion date of the project.
In others, there is a request to correct an error (typo) such as a
date. For example, the Commission was in receipt of the final
recess order filing in 2013 and not in 2012 as stated in the
More significant are requests to delete a finding or condition
such as the request to "delete finding of fact #45 in its
entirety." This was based on the argument that "neither
petitioner Durkee or his expert Mr. Raphael submitted the
referenced testimony in Application #1R0981 and therefore FOF and
COL #45 has no factual or evidentiary basis under the Resort
Parking Project Land Use Permit."
While there are several such requests for deletions, one which
elicited an objection being filed was in regard to a condition
imposed on the resort that "The Permittee shall at all times manage
the parking facility in a manner sufficient to prevent intrusion of
visitors parking onto adjoining or neighboring condominium owners
In support of its request to delete this condition, KPSRP argued
that: "there is no evidentiary basis for the condition in the
record or under the Resort Parking Project Land Use Permit's FOF
and COL;" that "Land Use Permit conditions must have a reasonable
basis for a condition under one or more of the Act 250 criteria;"
that there "is no reasonable basis for a condition preventing the
intrusion of visitors parking onto adjoining or neighboring
condominium owners property under Act 250 criterion 5" (Traffic
Congestion and Safety); and that the "condition as written is
vague, ambiguous and unenforceable."
On November 1, however, Jon S. Readnour, Esq. filed a Response in
Opposition to Applicant's Motion to Alter on behalf of his client
the Pinnacle Condominium Association. The Association, which was
granted Party Status at the Act 250 hearings on several criteria,
objected to the request of KPSRP to delete Permit Condition
"The unit owners in the Association are concerned that they would
be negatively affected by improper operation and maintenance of the
parking lot in general and a failure to properly operate the
parking lot as contemplated in Permit Condition 19," Readnour
wrote, noting the deletion would upset "the balance contemplated"
by the permit, and the Association was therefore opposed to the
In support of his argument, he wrote that, "Creating and operating
a parking lot which facilitates a trespass on lands of another
constitutes the creation of a public and/or private nuisance. The
Act 250 Rules specifically provide that a permit condition may
pertain to the 'proper operation and maintenance' of a facility or
development [Rule 32(A)]."
He argues that "management of the facility to preclude creation of
a trespass or nuisance arising from cars from the parking lot
intruding onto the land of others" is a reasonable expectation and
therefore is a basis to deny the Motion's request to delete the
There were no other filings of Motions to Alter or responses to
name as of November 4. The response deadline was November 6,
according to Bill Burke, District 1 Coordinator.
It is not known how much time the commission might need to
complete its review.