                                       STATE OF VERMONT
SUPERIOR COURT                                                      ENVIRONMENTAL DIVISION
Environmental Division Unit                                            Docket No. 69-5-11 Vtec


Ridgetop/Highridge PUD                                            DECISION ON MOTION



                         Decision on Cross Motions for Summary Judgment
        The matter before the Court concerns Killington Pico Ski Resort Partners, LLC’s planned
unit development (PUD) renewal application 11-005 (11-005 Application), submitted to the
Town of Killington Planning Commission on March 11, 2011. Killington Pico Ski Resort Partners,
LLC (KPSRP or Applicant), through the 11-005 Application, seeks renewal of its 06-098 PUD
permit for the Ridgetop/Highridge PUD (the Project) that expired in March of 2011. After a
public hearing on March 23, 2011, the Planning Commission approved the 11-005 Application in
April of 2011. Appellants, the Highridge Condominium Owners Association (Association),
appealed the Planning Commission’s decision to this Court on May 9, 2011.1 In their Statement
of Questions Appellants raise three questions for our review: 1) Whether written notification of
the public hearing on the 11-005 Application, held on March 23, 2011, was properly given to
owners of all properties adjoining the property subject to the application, including all the
owners of condominium units in the Highridge Condominiums; 2) Whether the Association
and/or Highridge Condominium unit owners should have been a co-applicant to the 11-005
Application, and afforded a right to participate on the application, because the application
relates to rights on land owned by the Association and individual unit owners; and 3) Whether
the 11-005 Application is in conformance with the Killington Zoning Regulations.
        Applicant filed a motion for summary judgment on all three questions raised in
Appellants’ Statement of Questions. In its motion, Applicant first argues that notice was not
deficient because notice was sent to the legal mailing address of the Association and published
in the Rutland Herald at least ten days prior to the public hearing. Furthermore, Applicant

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           This Environmental Division appeal was placed on inactive status for a considerable period while the
parties pursued related issues before the Civil Division.

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argues, even if there were defects in the notice, Appellants received constructive notice and
Appellants have waived any defective notice claim because a representative of the Association
appeared at the public hearing and raised issues on behalf of the Association. Second, Applicant
avers that there was no need to include Appellants as co-applicants because the 11-005
Application does not propose development on land owned by Appellants, and even if it did, the
Vermont Supreme Court has already ruled that Applicant has the right to develop up to 250
units at Highridge without the consent of Appellants. Lastly, Applicant argues that the 11-005
Application satisfies all relevant provisions of the Killington Zoning Regulations (Regulations),
and specifically addresses the 18 criteria in Section 505 of the Regulations pertaining to PUD
review.
          Appellants filed in opposition to the motion for summary judgment, and request
judgment in their favor on all three issues. This Court held a motion hearing on February 18,
2016 at the Costello Court House in Burlington, Vermont. At the hearing, Appellants were
represented by Judith Dillon, Esq. and Carl Lisman, Esq. Applicant was represented by Allan R.
Keyes, Esq. No other interested parties or members of the Association appeared at the hearing,
and the Town of Killington did not appear or participate. At the hearing, Appellants clarified
that their opposition was intended as a cross motion for summary judgment. We treat the
motions as cross motions for summary judgment and address them below.
                                         Factual Background
          For the sole purpose of putting the pending motions into context, the Court recites the
following facts, which it understands to be undisputed unless otherwise noted:
1.        The Ridgetop/Highridge PUD now before the Court is located in Killington, Vermont and
          totals about 38 acres in size. The PUD consists of the 11 acre Ridgetop parcel (Ridgetop)
          and the 26 acre Highridge parcel (Highridge) (collectively the Project).
2.        The Project received PUD approval in 1988 through the 88-169 permit. The approval
          provides, “Planned Unit Development Approval, under Section 505, is hereby issued to
          Northridge Development Corp. for the 37.95 +/- acre portion of the Highridge
          development off Roaring Brook East Road. The development consists of a total of 82




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      dwelling units with accessory recreational facilities and related site work.” This approval
      expired on November 17, 1992.
3.    Killington Pico Ski Resort Partners, LLC (KPSRP) is the successor in interest to Northridge
      Development Corporation.
4.    In 1999, KPSRP filed the 99-029 application seeking new PUD approval for the Project,
      and specifically sought review of the nine single family parcels, 107A-1 through 107A-9
      on the Sherburne Tax Map within the Ridgetop section. The 99-029 permit was
      approved and was set to expire on May 26, 2003.
5.    In 2002, KPSRP filed the 02-006 application to extend PUD approval for the Project for
      another four years. The order approving the 02-006 permit specified, “All conditions of
      previous Highridge and Ridge Top Planned Unit Development approvals not specifically
      changed by these approvals shall remain in full force and effect.” This PUD approval
      expired March 27, 2006.
6.    In November of 2006, KPSRP filed Site Plan Renewal application 06-099, and Planned
      Unit Review application 06-098.
7.    In its March 15, 2007 order approving the two applications, the Town of Killington
      Planning Commission described the applications as, “The applications are to renew for
      four years the Ridgetop section of the Highridge Planned Unit Development. The Project
      consists of nine, 20,000 square foot building lots on 11.31 acres.”
8.    The Planning Commission found that the Highridge PUD is about 38 acres and Ridgetop
      is an 11 acre section of the Highridge PUD.
9.    In its order granting approval, the Planning Commission concluded that, “Based on the
      above Findings of Fact and Conclusions of Law the Killington Planning Commission
      approves, with conditions, Planned Unit Review application 06-098 and Site Plan Review
      application 06-099 by the Ridgetop Landowners Association and Killington Ltd. for the
      development of nine single family lots and related infrastructure and site work.”
10.   The 06-098 PUD permit was set to expire on March 14, 2011.
11.   On March 11, 2011, KPSRP filed the 11-005 Application with the Town of Killington to
      renew the 06-098 PUD approval and 06-099 site plan approval. The 11-005 Application


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      states that the location of the property is the Ridgetop Subdivision, Highridge Road and
      High Mountain Road. The Application also provides that number of units includes “9
      Single Family Homes on the 11.31 acre parcel, and 73 units on the 26.64 acre parcel.”
12.   The Highridge Condominium Owners Association and the individual unit owners in the
      Association are adjacent property owners to the Project.
13.   The Association was served with a copy on the 11-005 Application.
14.   The Notice of Public Hearing (Hearing Notice) for the 11-005 Application was published
      in the Rutland Herald on March 14, 2011.
15.   The Association was sent the Hearing Notice at its legal mailing address listed on the
      Vermont Secretary of State’s website.
16.   Individual unit owners of the Highridge Condominium Owners Association were not
      mailed copies of the 11-005 Application or the Hearing Notice.
17.   The Hearing Notice states that the hearing concerns the 11-005 PUD Application by the
      Ridgetop Landowners Association and Killington/Pico Resort Partners, LLC, and
      describes the purpose of the hearing as: “The Purpose of the hearing is to extend for
      four years the Ridgetop section of the Highridge Planned Unit Development. Review
      may include parts of the Highridge PUD which are not within the Ridgetop section, such
      as road access. The project is located on Tax Map 29 parcels 107A-1 through 107A-9 and
      107B.”
18.   The minutes from the Planning Commission’s public hearing on March 23, 2011 reveal
      that the 11-005 Application was described as seeking to “extend the Ridgetop section of
      the Highridge Planned Unit Development for four years.”
19.   At the public hearing, Greg Becker, accountant for the Association, read a statement
      from the Highridge Condominium Owners Association Board stating: “The Highridge
      Condominium Owners Association objects to the ongoing construction of this project
      which has lasted greater in length than originally planned. We find the continued
      construction as disruptive to our community and object to any extension of existing
      approvals.”




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20.    On April 6, 2011, the Planning Commission approved the 11-005 Application granting
       PUD approval to the Project for four years, with an expiration date in March of 2015.
21.    The Planning Commission’s decision provides: “Based on the above Findings of Fact and
       Conclusions of Law the Killington Planning Commission approves, with conditions,
       Planned Unit Development application 11-005 by Ridgetop Owners Association and
       Killington /Pico Resort Ski Partners, LLC is approved to extend the Residential R-1
       portions of the Highridge and Ridgetop PUD for four years.”
                                            Discussion
       Pursuant to Rule 56 of the Vermont Rules of Civil Procedure, the Court will grant
summary judgment to a moving party if that party demonstrates that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). When considering cross-motions for summary judgment, the
Court looks at each motion individually and gives the opposing party the benefit of all
reasonable doubts and inferences. City of Burlington v. Fairpoint Commc’ns, Inc., 2009 VT 59, ¶
5, 186 Vt. 332. The Court also accepts as true all factual allegations made in opposition to a
motion for summary judgment so long as they are supported by “specific citations to particular
parts of materials in the record . . . .” V.R.C.P. 56(c)(1)(A). If the responding party “fails to
properly support an assertion of fact or fails to properly address another party’s assertion of
fact,” the Court may “consider the fact undisputed for purposes of the motion.” V.R.C.P.
56(e)(2).
            I.     Notice (Question 1)
       The notice provision of 12 V.S.A. 4464(a)(2)(B) requires that written notice of a PUD
application must be sent to “the applicant and to the owners of all properties adjoining the
property subject to development . . . .” Section 500 of the Regulations includes a similar notice
provision, requiring: “Written notification to the owners of all properties adjoining the property
subject to development . . . . The notification shall include date, time, place, [and] description of
the proposed project and purpose of the hearing . . . .” Killington, VT, Zoning Regulations § 500
(2008). Exact conformance with 12 V.S.A. § 4464(a)(2), and Section 500, is not, however, a strict
prerequisite to effective notice. The touchstone of adequate notice is to ensure there was


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notice “‘reasonably calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.’” Town of
Randolph v. Estate of White, 166 Vt. 280, 283 (1997) (quoting Mulane v. Central Hanover Bank
& Trust Co., 339 U.S. 306, 314 (1950)). As we have previously discussed in the context of 12
V.S.A. § 4464(a)(2)(B), the purpose of these notice provisions “is to inform interested persons of
a proposed action and to give them a reasonable opportunity to express their support or
opposition.” In re Southern Vermont Beagle Club, No. 142-9-11 Vtec, slip op. at 6 (Vt. Super. Ct.
Envtl. Div. Jan. 17, 2013) (Walsh, J.). This purpose is reflected in the savings clause of 12 V.S.A. §
4464, which provides: “No defect in form or substance . . . shall invalidate the action of the
appropriate municipal panel where reasonable efforts are made to provide adequate posting
and notice.” 24 V.S.A. § 4464(5). Nevertheless, where the notice does not adequately inform
interested parties, or in other words if the “defective posting or notice was materially
misleading in content,” the action is invalid regardless of the effort undertaken. Id.
       Applicant moves for summary judgment on this issue arguing that the notice it sent to
the legal mailing address of the Association was effective notice for the individual unit owners.
Applicant further argues that even if individual notice was required by statute, the failure to
send actual notice to each unit owner was merely a procedural defect and the individual unit
owners did receive notice and had an opportunity to voice their opposition as evidenced by the
fact that a representative for the Association appeared at the public hearing and read a
statement from the Association’s Board. In response, Appellants argue that regardless of the
notice sent to the Association, each of the 118 unit owners of Highridge was required to receive
individual written notice pursuant to 24 V.S.A. § 4464(a)(2)(B) and Section 500 of the
Regulations because they are owners of property adjoining the property subject to the
application. Further, Appellants argue, the information provided in the Hearing Notice was
misleading and insufficient to provide actual or constructive notice of the scope of the 11-005
Application.
       The crux of the notice dispute here is two-fold. First, is the issue of whether the notice
was defective because each individual unit owner of the Highridge Condominium Association
was not mailed a copy of the 11-005 Application or the Hearing Notice. Second, assuming the


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notice was not defective because of infirmities in service, the ultimate question becomes
whether the notice that was provided adequately informed interested parties that the 11-005
Application sought to extend PUD approval for both the Ridgetop and Highridge portions of the
Project. For the following reasons, we conclude that the notice was materially misleading, thus
regardless of Applicant’s efforts to provide notice, we find the notice invalid.
       It is undisputed that the Association and the individual unit owners are adjoining
property owners. It is further undisputed that the Association’s individual unit owners did not
receive individual mailed notice. Rather, Applicant sent the 11-005 Application and the Hearing
Notice to the Association at its legal mailing address, and the Town published the Hearing
Notice in the Rutland Herald soon thereafter. Appellants rely on a strict reading of the statute
and Regulations to argue that individual written notice to each unit owner is required
regardless of whether actual or constructive notice was provided via notice to the Association.
Applicant counters that the Association functions as the agent for the individual owners, thus
notice was effective when sent to the Association’s address. Appellants acknowledge that the
Condominium Ownership Act does allow notice on the Association to serve as notice on the
individual unit owners, see 27 V.S.A. § 1327, but argue that 27 V.S.A. § 1327 does not overrule
the notice requirements of 24 V.S.A. 4464 or Section 500 of the Regulations, and therefore
individual written notice was required and Applicant’s service was defective.
       Although the notice provision of Section 4464(a)(2)(B) and Section 500 of the
Regulations were not strictly complied with, we question whether the failure to adhere to the
statutory and regulatory notice provisions in this case constitutes ineffective notice. See
Quincy Park Condo. Unit Owners' Ass'n v. D.C. Bd. of Zoning Adjustment, 4 A.3d 1283, 1289
(D.C. 2010) (finding that notice sent to the association constitutionally sufficient because “the
association's officers are the owners’ fiduciaries, and thus it is reasonable to rely on those
officers to inform the owners of the hearing.”). Nevertheless, we need not conclusively decide
the issue of whether the lack of individual notice to the unit owners rendered the notice
ineffective because we find that the substance of the notice was materially misleading.
       The undisputed facts reveal that there were several layers of incomplete and potentially
misleading information. For one, the Hearing Notice only indicated that the 11-005 Application


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pertained to the Ridgetop portion of the Project. Further, while Appellants should have done
some research upon receiving the Hearing Notice and the 11-005 Application seeking to renew
the 06-098 permit, a review of the 06-098 permit does not make it clear that the Highridge
portion of the Project is involved. Lastly, based on the facts before the Court, it appears the
discussion at the public hearing was limited to the Ridgetop section. Due to the combination of
deficiencies, we find that the notice did not adequately inform Appellants of the scope and
focus of the 11-005 Application. We therefore conclude that the notice was materially
misleading, and thus invalid. Accordingly, we grant summary judgment to Appellants on
Question 1.
            II.     Co-Applicancy (Question 2)
        Appellants argue that they were necessary co-applicants for the 11-005 Application and
their omission from the Application violated the Regulations. The only provision of the
Regulations that Appellants identify as establishing a co-applicancy requirement is Section 610–
Zoning Permits. Section 610 requires that all applications for a zoning permit shall be
accompanied by, among other things, “A statement that the applicant is the owner of the land
and a reference to the book and page in the Town of Killington Land Records of the applicant’s
deed.” Regulations § 610(B)(4). As we have explained, “[the purpose of requiring the identity of
a landowner on an application for a municipal land use approval is to ensure that the
landowner, who has a substantial interest in his or her property, supports the proposed use of
the property.” In re Southern Vermont Beagle Club, No. 142-9-11 Vtec, slip op. at 10 (Vt. Super.
Ct. Envtl. Div. Jan. 17, 2013) (Walsh, J.).
        To begin, we look to whether the Regulations require the strict co-applicancy Appellants
suggest. Pursuant to Section 505, an applicant who seeks PUD review must also receive a
zoning permit under Section 610 before development may occur. See Regulations § 505(17). If
only PUD approval is sought, it does not appear that the zoning permit requirements of Section
610 are triggered. Instead, once an applicant with PUD approval wishes to begin construction,
the applicant is required to apply for a Section 610 zoning permit. See Regulations § 505(17)
and (18). Here, Applicant represents that it has not yet sought a Section 610 zoning permit and




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is only currently seeking PUD approval. Therefore, it is not clear that Section 610’s requirement
that the landowner be a co-applicant is applicable in this case.
        Furthermore, even if the Regulations impose a co-applicancy requirement for PUD
approval, we conclude that Appellants are not necessary co-applicants. The Vermont Supreme
Court has already ruled that Applicant has the exclusive right to develop up to 250 units at
Highridge without the consent of the Association. See Highridge Condominium Owners Assn. v.
Killington/Pico Ski Resort Partners, LLC, 2014 VT 120, ¶ 25 (holding that Applicant has “the right
to add units up to the 250–unit maximum expressed in the declaration without the consent of
the Association.”).2 Following this clear declaration from the Vermont Supreme Court, we
conclude that Applicant has made a sufficient showing that it holds the exclusive right to
proceed with the PUD development with or without the consent of the Highridge Condominium
Owners Association.3 We therefore grant summary judgment to Applicant on Question 2.
             III.     Zoning Regulations (Question 3)
        We need not reach Appellants’ Question 3 and the issue of whether the 11-005
Application complies with the Regulations. Appellants will have a full opportunity to raise any
zoning regulation compliance issues before the Planning Commission after Applicant provides
proper notice of the 11-005 Application and related public hearing.
                                                  Conclusion
        For the foregoing reasons, we grant in part and deny in part Appellants’ cross motion for
summary judgment. We also grant in part and deny in part Applicant’s motion for summary
judgment. Consistent with this decision, we hereby Grant Appellants’ motion for summary
judgment on Question 1 (Notice), and remand the matter for a new public hearing on the 11-
005 Application by the Town of Killington Planning Commission following appropriate notice to
interested parties. Killington/Pico Ski Resort Partners, LLC must re-notice the 11-005

        2
            The Superior Court, on remand, entered judgment for Applicant consistent with the Supreme Court’s
ruling and ordered, “this Court enters judgment that Killington/Pico Ski Resort Partners LLC holds the right to add
units to the Highridge Condominiums without Association consent, up to the 250-unit limit stated in the
declaration.” Highridge Condominium Owners Assn. v. Killington/Pico Ski Resort Partners, LLC, No. 122-2-12 Rdcv
(Vt. Super. Ct. April 9, 2015).
          3
            We reiterate our frequent maxim that the Environmental Division does not adjudicate private property
rights. See In re Woodstock Cmty. Trust & Hous. Vermont PRD, 2012 VT 87, ¶ 40, 192 Vt. 474. That is in the sole
purview of the Civil Division of the Vermont Superior Court. Here, Applicant has made a sufficient showing of its
exclusive right to develop the Ridgetop and Highridge portions of the Project.

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Application and provide notice to each unit owner of the Highridge Condominium Owners
Association as well as to any other party entitled to notice. Next, we Grant summary judgment
to Applicant on Question 2 (co-applicancy). Appellants are not necessary co-applicants on the
11-005 Application. We further conclude that Applicant’s re-noticing of the 11-005 Application
maintains the original filing date in March of 2011.
       This matter is REMANDED to the Town of Killington Planning Commission. This
concludes the proceedings before the Court in this matter.
       Electronically signed on February 22, 2016 at 01:20 PM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




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