Killington Village Master Plan heads to Environmental
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.
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.)
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
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
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.
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
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
As of Nov. 4 no other appeals to the permit had been filed, she