                                         STATE OF VERMONT
SUPERIOR COURT                                                              ENVIRONMENTAL DIVISION
Vermont Unit                                                                 Docket No. 147-10-13 Vtec

                    Killington Village Act 250 Master Plan Application

                                  ENTRY REGARDING MOTION

Title:           Motion to Continue & Stay of Proceeding (Motion 11)
Filer:           Pinnacle Condo Association, Inc.
Attorney:        Jon S. Readnour
Filed Date:      March 5, 2015

Response in Opposition filed on 04/06/2015 by Attorney Christopher D. Roy for Appellant SP
Land Company, LLC

The motion is DENIED.

       Following a merits hearing in this matter that began on December 1, 2014, Pinnacle
Condominium Association, Inc. (“Pinnacle”) filed a motion for a continuance and stay of
proceedings pending resolution of a matter before the Civil Division of the Vermont Superior
Court1 (“Docket No. 721-12-14 Rdcv”). Pinnacle asserts that SP Land Company, LLC
(“Applicant”) has failed to demonstrate adequate property rights to construct a day-skier
parking lot (“lot B”) as the primary reason in support of their motion.
        Pinnacle has provided a thorough summary of the deeds that govern the legal interests
in the land that Applicant wishes to develop. For sake of simplicity and with a focus solely upon
the facts and law relevant to our current analysis, we summarize their argument by noting that
Applicant holds fee simple title to the property it wishes to develop, but that that property is
encumbered by easements benefitting Pinnacle.
        By their motion, Pinnacle asks this Court to stay this appeal pending the Civil Division’s
resolution of the complaint in Docket No. 721-12-14 Rdcv, which, they argue, will resolve any
dispute as to Applicants’ property rights to Old Mill Road.
        Pinnacle’s motion, in this context, requests “a ‘suspension of proceedings’ until a
specified event occurs in another case.” In re Woodstock Community Trust and Housing
Vermont PRD, 2012 VT 87, ¶ 36, 192 Vt. 474, quoting Stone v. Briggs, 112 Vt. 410. 412-13
(1942). As the party seeking a stay of proceedings, Pinnacle “‘must make out a clear case of

1
  Pinnacle Condominium Assoc., Inc. v. SP Land Co., LLC and Killington/Pico Ski Resort Partners, Docket No. 721-12
-14 Rdcv (Vt. Super. Ct. Civ. Div.).
In re Killington Village Master Plan, No. 147-10-13 Vtec (EO on Mot. to Stay)(05-13-2015)      Page 2.


hardship or inequity in being required to go forward’ if there is a possibility that a stay will
damage someone else.” Id.
         Here, Pinnacle does not offer any compelling claim that continuing this matter will cause
damages or hardship; rather, they argue that our approval would obstruct their property rights.
We disagree. This Court’s jurisdiction is limited to the Act 250 application before the Court; we
will not determine property rights in this litigation, nor will our approval of the pending permit
application, or its denial, confer new property rights on any party. See In re Britting
Wastewater/Water Supply Permit, No. 259-11-07 Vtec, slip op. at 3–4 (Vt. Envtl. Ct. Apr. 7,
2008) (Wright, J.) (“[R]esolution of adjacent landowners’ rights regarding a disputed right-of-
way is beyond the jurisdiction of this Court.”). Given that Pinnacle has already commenced
litigation in the proper forum to resolve the parties’ property rights claims, we and the parties
are assured that the proper trial court will address these issues, leaving this Court to focus on
adjudicating the land use issues properly before this Court.
          Pinnacle relies upon this Court’s rulings in the Wilcox Ice Cream Factory appeal. While
that appeal did have some similarities to the appeal at bar, there are material differences in the
two projects and their procedural posture that guide our decision to not grant a stay here.
First, in Wilcox there were two feuding brothers, each of whom asserted a fee simple interest in
the subject property; those claims were so serious as to warrant the commencement of a land
partition action in what was then known as the Bennington County Superior Court. In re Wilcox
Ice Cream Factory, No. 70-4-07 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div., July 8, 2010) (Durkin,
J.), citing Howard Wilcox v. Gerald Wilcox, No. 96-3-06 Bncv (Vt. Sup. Ct. Feb. 18, 2010) (Suntag,
J.). In the Killington land use appeals, Applicant holds fee simple title to the property it wishes
to develop, which is encumbered by easements benefitting Pinnacle. Furthermore, while the
property rights dispute between the parties here involves serious and consequential interests,
it cannot be fairly described, like Wilcox, as two adverse parties fighting over fee simple title to
real property. While Pinnacle often uses the term “exclusive” in its memoranda, the title
documents presented do not support such a characterization. Lastly, in Wilcox the partition
action had already been tried, a decision rendered, and an appeal filed with the Vermont
Supreme Court, whereas the land use appeal had not yet gone to trial. In the pending Killington
land use appeals, although the Court has already completed the trial and the parties await our
decision, the quiet title action has yet to go to trial. For all these reasons, we conclude that the
Wilcox rulings do not support a determination that a stay of these post-trial proceedings is
warranted here.
        Fairness and efficiency require that an applicant have some discretion in how it
proceeds through the permitting process; neither this Court nor permit opponents should
prevent this process from moving forward unless a stay is appropriate to avoid unnecessary
cost or delay. Applicants oppose Pinnacles motion and express a strong interest in having this
appeal resolved expeditiously, regardless of the outcome in the civil action. We find that
continuing this appeal would further delay the permitting process with little savings in cost or
time, and would not alter the Civil Division’s resolution of the civil action. We therefore decline
to stay this appeal on the chance that resolution of Pinnacle’s civil action may have some effect
on the Act 250 permit application. Therefore, Pinnacle’s motion to stay the appeal in Docket
No. 173-12-13 Vtec is DENIED.
In re Killington Village Master Plan, No. 147-10-13 Vtec (EO on Mot. to Stay)(05-13-2015)   Page 3.



So ordered.

Electronically signed on May 13, 2015 at Newfane, Vermont pursuant to V.R.E.F. 7(d).



________________________________
Thomas S. Durkin, Judge
Environmental Division

Notifications:
Christopher D. Roy (ERN 1352), Attorney for Appellant SP Land Company, LLC
Gregory J. Boulbol (ERN 1712), Attorney for the Vermont Natural Resources Board
Elizabeth Lord (ERN 4256), Attorney for the Vermont Agency of Natural Resources
Nathan H. Stearns (ERN 3585), C. Daniel Hershenson (ERN 3586), and David Grayck (ERN 4510),
  Attorneys for Cross Appellant Stephen Durkee, Mountainside Properties, Inc., Mountainside
  Development, Inc., Fireside Properties, LLC, and Killington Village Prop. Inc.
Jon S. Readnour (ERN 2166), Attorney for Interested Person Pinnacle Condo. Association, Inc.
Carl H. Lisman (ERN 3882), Attorney for Interested Person Highridge Condominium Owners'
Robert E. Woolmington (ERN 3047), Attorney for Interested Persons Rutland County Regional
  Planning Comm., Two Rivers Ottauquechee Regional Planning Comm.., and So. Windsor
  County Reg Planning Comm
Melvin B. Neisner (ERN 3792), Attorney for Interested Persons Sherburne Volunteer Fire Dept.,
  Mike Moriaty Mountain Green Condo Assoc., and Edgmont Home Owners’ Assoc.

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