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SP Land appeals Act 250 permit

Killington Village Master Plan heads to Environmental Court

SP Land Company has filed a Notice of Appeal regarding the recently issued Act 250 permit for their Killington Village Master Plan. Christopher D. Roy of Downs Rachlin Martin PLLC filed the Notice of Appeal, Certificate of Service, and fee with the Vermont Superior Court, Environmental Division on behalf of SP Land on Oct. 30.

All parties to the permit hearings (they are listed on the Certificate of Service) also received a copy of the Notice as required by Nov. 6. The Notice of Appeal does not contain any arguments or explanations but simply serves as a means to request a hearing and get the appeal on the docket.

Any interested persons among those parties who wish to participate in the appeal hearings must notify the Environmental Division in writing within 20 days of receiving the Notice.

SP Land's President Steve Selbo explained that while he had been cautiously optimistic that they could work with the permit - including its findings of fact, conclusions of law, and conditions - that after careful examination, it was determined that they could not figure out a way to make the Village Master Plan project work within the permit's framework.

"We took the time to fully analyze the permit and all the conditions, but we just couldn't make it work with our business plan," he said. (The permit was issued by the District #1 Environmental Commission on Oct. 7.)

At  issue
Selbo mentioned "issues with the traffic findings and conditions, issues with continued Act 250 oversight that were not normal for a project of this type, and concerns with the requirement of fire suppression systems not consistent with state rules" as just a few of SP Land's concerns or issues.

 "There are some things that don't seem consistent with the State of Vermont statutes, rules, and regulations. Since some of these items adversely affect the business plan, SP Land needed to appeal the permit," Selbo explained.

SP Land 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 was one of the issues that was most problematic for SP Land and remains so.

Asked about the additional time this next step will necessitate, Selbo said, "We estimate nine to twelve months for the Environmental Court hearing and decision, but of course we are not in control of the timing."

In response to a query of what this delay might mean given the nationwide rebound of the economy and the fact that developers throughout the state are going ahead with ski villages and expansions, he said, "With the economy coming back in our market in the Northeast, now is the time to move ahead and build. Yes, the delay is unfortunate and the consideration of our appeal was not undertaken lightly."

Selbo had not received any notices of any appeals being filed by other parties as of Nov. 4, but he noted that the deadline for appeals of this permit was Nov. 6.

He also said he believes the Notice of Appeal stipulates that other parties now have another 20 days in which to respond.

Appeals Process 
The Superior Court's Environmental Division (aka the Environmental Court) is a trial court that will consider an appeal on its merits and generally hears any appeal that is timely filed and based upon legitimate grounds.

Since the Notice of Appeal simply requests the hearing and does not contain specifics, Selbo said SP Land would next address the required 'statement of questions' for the case. The appeal hearing would most likely be held in the Rutland area and could include site visits to assist the Court in rendering a decision. It is not yet known what parties might wish to participate.

There are two Environmental Division judges who hear appeals in Vermont. The judge assigned to this case could uphold the Killington Village Master Plan permit in its entirety or modify it to address the issues raised in the appeal. (The judge could also send it back to the District Environmental Commission, but that is a rare occurrence and not likely.)

The case would be heard 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 level). "A statement of questions is due to the Environmental Court on November 20, and this statement will define the scope of the case," explained Court Clerk Jacalyn Fletcher. If there should be a cross appellant, they would file their own statement of questions according to V.R.E.C.P. Rule 5, which governs the appeal process, Fletcher added.

If the Environmental Court's decision works for SP Land, then they could proceed with a search 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.

For any party to this EC appeal that objects to the ruling by the Environmental Division Judge, the next step would be to appeal the decision to the state's Supreme Court within 30 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 created on the record in its hearing.

As of Nov. 4 no other appeals to the permit had been filed, she noted.