By Karen D. Lorentz
KILLINGTON—The saga of the Killington Village Master Plan permit continues with a recent notice of appeal made to the Vermont Supreme Court.
It was filed by attorney Peter H. Banse, of Banse and Banse, PC, in Americus, GA., and does not state reasons for the appeal. Banse is representing Stephen Durkee and his various enterprises in the town of Killington: Mountainside Properties, Inc.; Fireside Properties, LLC; Mountainside Development, Inc; and Killington Village Properties, Inc., which includes Killington Market and the Back Country Café.
The filing includes a nine page “certified docket” listing for the case, essentially a history of all the participants, disputes, conferences, motions, petitions, merits hearings, permit orders, exhibits, etc. from the time of the application filing by SP Land Company in 2012 to the amended permit issued in August 2016 and ends with the Sept. 27 notice of appeal filed for Durkee.
The filing of reasons for the appeal is required within 10 business days, and a transcript order of the Environmental Court hearings may or may not be requested by Durkee (it takes 30 days). Once the record is complete, the appellee SP Land has a chance to reply within 21 days; i.e., file a legal brief addressing the issues raised with the Court.
Supreme Court Clerk Gerrie Denison explained that the justices then review the briefs and a calendar is created offering a three- or five-justice panel (full court). More considerations include any changes to that decision by the parties and letting the court know if a party wants oral arguments. If one party wants the case heard, then a date is set. However, the court is available only once a month for those hearings so all attorneys need to be available on that date or it goes to first date all are available.
Sources note that the entire process could be delayed due to the fact that Justice Dooley is retiring, and the Court would need to go through the nomination and legislative appointment process, thus possibly delaying a hearing to spring.
If a hearing is desired and set, the parties generally have five minutes each if heard by a three-justice panel and 15 minutes each if before a full panel to make their statements. The justices can also ask questions. It is not known how long it might take to render a decision, but it could be fall before the results are known.
The Court’s decision is final but a motion could be filed for re-argument (rare) or the case appealed to federal courts.
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 he imposed, ruled on a Motion to Alter that decision in an Aug. 29 Amended Judgment Order.
Banse’s notice mentions appeals to both decisions.
SP Land had been able to live with the June 21 decision, but Selbo was not entirely surprised by the appeal notice but said he is disappointed.
The District #1 Environmental Commission has not issued 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. That is not expected until the appeal is heard.
By Karen D. Lorentz