                                           STATE OF VERMONT
SUPERIOR COURT                                                                  ENVIRONMENTAL DIVISION
Vermont Unit                                                                     Docket No. 173-12-13 Vtec

Killington Resort Parking Project Act 250
Amendment Application




                                             Decision on the Merits
         Killington/Pico Ski Resort Partners, LLC (“Applicant”)1 seeks approval for the
reconfiguration of some of its parking facilities at the Killington Resort in the Town of Killington.
The proposed project also calls for a reconfiguration of a portion of the parking lots at the
Killington Grand Hotel, a new private access road and related improvements, and
improvements to certain landscaping and stormwater treatment facilities.                                 The various
proposals encompassed by this pending application are hereinafter collectively referred to as
the “Parking Project.” When the District #1 Environmental Commission (the “Commission”)
approved the Parking Project application and issued an Act 250 permit, Stephen Durkee and
entities owned or controlled by Mr. Durkee—Mountainside Properties, Inc.; Mountainside
Development, Inc.; Fireside Properties, LLC; and Killington Village Properties, Inc. (collectively,
“Appellants”)—appealed to this Court. Pinnacle Condominium Association (“Pinnacle”) is an
Interested Party in this appeal.
         Applicant is represented in this appeal by Christopher D. Roy, Esq.; Appellants are
represented by Nathan H. Stearns, Esq. and C. Daniel Hershenson, Esq; and Pinnacle is
represented by Jon S. Readnour, Esq. Also appearing in this appeal are the Vermont Agency of
Natural Resources (“ANR”), represented by Elizabeth Lord, Esq. and the Vermont Natural
Recourses Board (“NRB”), represented by Gregory J. Boulbol, Esq.
         The Parking Project application coincides with a master plan application by a separate
owner/developer—SP Land Company, LLC—concerning substantial new construction at the


         1
           MTB Killington, LLC; AMSC Killington, LLC; and SP II Resort, LLC filed the initial application for the Parking
Project, but subsequently transferred ownership to Killington/Pico Ski Resort Partners, LLC. Any further reference
to Applicant shall apply to the current owner and applicant, Killington/Pico Ski Resort Partners, LLC.

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Killington Ski Resort; the master plan proceedings have also been appealed to this Court and
are the subject of a separate appeal, Docket No. 147-10-13 Vtec.2

                                               Preliminary Issues
      I.        Standing
           Appellants filed their Statement of Questions on January 13, 2014, listing nine legal
issues for the Court to address in this de novo appeal. Applicant then filed a motion challenging
all Appellants’ standing under Criteria 5 and 9(K) and challenging all but Appellant MPI’s
standing under Criterion 8. By decision dated August 5, 2014, the Court provisionally affirmed
Mr. Durkee’s party status under Criterion 5, but rejected all other Appellants’ party status
under this Criterion. The Court also rejected all Appellants’ party status under 9(K). The Court
granted Applicant’s motion to dismiss all of the challenged Appellants, other than MDI, under
Criterion 8.
           No credible evidence was presented at trial that convinced the Court to revise its party
status determinations concerning the denial of party status under Act 250 Criterion 8 or 9(K).
Since that party status determination has now become final, we conclude that Appellants’
Questions that relied upon their standing to raise legal issues under criterion 9(K)—Questions 3,
7, and 8—must be DISMISSED.
           With regard to our provisional ruling under Criterion 5, Mr. Durkee owns properties at
2134 Killington Road and 2023 Killington Road, which are located 1.1 miles and 1.2 miles,
respectively, below (north of) the Parking Project. Since he personally lives in Mendon, we find
it difficult to discern what purpose specific to his properties requires him to drive past those
properties and therefore be impacted by the Parking Project. Stated differently, as to the two
properties Mr. Durkee owns in his personal name and for which he requested and received
provisional party status under Criterion 5, we are having difficulty discerning what impacts
particular to these properties may be felt. Rather, it appears that Mr. Durkee is impacted no
differently that other members of the general public who travel along Killington Road in the
vicinity of the Parking Project. However, when we granted Mr. Durkee party status under

           2
            One factor influencing the Court’s decision to not consolidate these two matters is that different parties
have appeared in each appeal. See In re Killington Village Master Plan Application Appeal, No. 147-10-13 Vtec, slip
op. at 1, n. 1 (Vt. Super. Ct. Envtl. Div. Aug. 6, 2014) (Durkin, J.).

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Criterion 5 due to possible impacts upon his two properties, we noted that “Mr. Durkee’s
allegation that the Parking Project will result in additional turning movements and increased
traffic congestion is sufficient to establish a reasonable possibility that the Parking Project could
harm his particular interests.” In re Killington Resort Parking Project Act 250 Appeal, No. 173-
12-13 Vtec slip op. at 7 (Vt. Super. Ct. Envtl. Div. Aug. 5, 2014).
       As noted below in our Discussion section, we conclude that there is insufficient factual
foundation to support Mr. Durkee’s concerns. But that merits conclusion is not a sufficient
basis for reversing our grant to Mr. Durkee of party status under Criterion 5. Rather, as we
have stated before, when an individual seeks party status, they need only satisfy an initial
showing that the proposed project “may” impact them as they fear; they do not carry the
burden at the initial stage of party status evaluation to show that the project definitely “will”
impact them as they fear. In re Pion Sand & Gravel Pit, No. 245-12-09 Vtec, slip op. at 7 (Vt.
Super. Ct. Envtl. Div. July 2, 2010) (Durkin, J.). It is for this reason that we decline to revise our
decision to grant Mr. Durkee party status under Criterion 5 as to possible impacts upon his two
properties on Killington Road. We therefore conclude that Mr. Durkee has permanent (not
provisional) standing under Criterion 5.

     II.     Settlement Between Applicant and Pinnacle
       The parties engaged in considerable good faith efforts to voluntarily resolve their
differences. Those efforts continued even after the Court had closed the evidence at the end of
trial; their efforts resulted in an agreement between Applicant and the Pinnacle Condominium
Association, Inc. (“Pinnacle”) that resulted in Pinnacle withdrawing its objections to the
proposed Parking Project improvements, subject to some revisions to the proposed access way
improvements, known as “Road H,” being admitted into evidence, post-trial, and accepted by
the Court in its Merits Decision. Applicant formally moved for admission of the revised plans on
November 4, 2015. The Court initially afforded all other parties thirty days in which to state
their objections to the Court admitting the revised site plans for Road H. See In re Killington
Resort Parking Project Act 250 Appeal, No. 173-12-13 Vtec, slip op. at 12 (Vt. Super. Ct. Envtl.
Div. Dec. 11, 2015) (Durkin, J.). Upon receiving responses from Appellants and the NRB, as well
as a reply memorandum from Applicant, the Court determined that no party objected to the

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Court accepting the revised site plans for Road H without a further evidentiary hearing and
therefore granted Applicant’s motion. Copies of the revised plans were attached to Applicant’s
original November 4, 2015 motion as Exhibits A, B, and C. See In re Killington Resort Parking
Project Act 250 Appeal, No. 173-12-13 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. Div. Jan. 28, 2016)
(Durkin, J.).
        While the NRB did not object to admitting the revised plans into evidence, it did argue
that the revisions required remand to the Commission. The Court declined to remand the
matter, reasoning that the revisions were not significant, they were made in response to
particular objections, and the changes would only affect one party who was not then before the
Court (the Mountain Inn), and The Mountain Inn already had notice of these proceedings and
elected not to participate.
        Based upon the credible evidence presented at trial, much of which was put into
context by the site visit that the Court conducted with the parties, as well as the revised plans
for Road H and related improvements admitted post-trial, the Court renders the following
Findings of Fact and Conclusions of Law, as well as a Judgment Order that accompanies this
Merits Decision.

                                           Findings of Fact
I.      Pending Application
1.      The Killington Ski Resort (the “Resort”) has operated for several decades on a large
expanse of land in what is now known as the Town of Killington.3 The pending application only
concerns lands in a portion of the Resort area adjacent to what has been known as the main
base lodge area.
2.      Due to the longevity and relative success of the Resort, many separate residential and
commercial developments related to the ski area have been permitted and completed on or
near the Resort properties.
3.      For many years, the Resort has maintained several large parking areas that are used by
day skiers and other visitors to the Resort. Two of those parking areas are known as the


        3
         At the time that the Killington Ski Resort began operation, the Town was known as Sherburne. The
Town completed the change of its name to the Town of Killington in the 1980s.

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Ramshead Lot and the Snowshed Lot, which together are capable of hosting about 1,276
vehicles. Both of those lots are graveled areas with generally unmarked parking spaces; visitors
are guided on where to park by intermittent posts and personnel that are posted in the parking
areas during busy days.
4.     The Ramshead and Snowshed lots are gravel, with nearly no landscaping or screening
and with little definition to the lots except for the exterior boundaries. These existing lots are
visible from the resort base areas, portions of the Killington Grand Hotel, many ski slopes, and
nearby residential and commercial developments.
5.     The existing Ramshead and Snowshed parking lots are depicted on some of the plans
presented in support of the pending application, although the existing lots are difficult to
ascertain because they are only shown by light gray markings. The existing lots are more easily
seen on a Google Earth screen shot admitted at trial as Exhibit PCA-1. Although these lots are
not labeled, they appear as the two large white areas on Exhibit PCA-1 in the upper left quarter
of the Exhibit.
6.     On February 28, 2012, then-owners MTB Killington, LLC; AMSC Killington, LLC; and SP II
Resort, LLC filed an Act 250 permit application with the Commission seeking approval for their
Parking Project, which consisted of new day-skier parking lots, realignment of a portion of
Killington Road, and reconfiguration of a portion of the Killington Grand Hotel parking lot and
associated stormwater treatment systems at the Resort. In the course of the Commission
proceedings, project ownership was transferred to the current owner/Applicant: Killington/Pico
Ski Resort Partners, LLC.
7.     The overall site plan admitted at trial as Exhibit A provides a helpful demarcation of the
areas proposed to be developed in the pending application; these areas are outlined in a
dashed red line, including the portion of the Killington Grand Hotel parking lot that is to be
reconfigured.
8.     The road running from the bottom to the top of Exhibit PCA-1 is Killington Road, which
serves as the main access road to the Killington Ski Resort. As depicted on Exhibit PCA-1,
Killington Road runs in a general north-to-south direction, with north being towards the bottom
of the Exhibit and south being to the top of the Exhibit, as noted on the lower left corner of the


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Exhibit. Killington Road is a town highway from its intersection with U.S. Route 4 to a point just
below (north of) the proposed new parking areas. Killington Road thereafter is a private
roadway, used and maintained by various developments, including the Resort.

       a. Proposed new parking lots
9.     The pending application proposes to replace the Ramshead and Snowshed parking lots
with new lots, which will be located on currently undeveloped adjacent lands just below (north
of) the existing lots. The new parking areas are identified as Lots C through J on the project site
plans admitted at trial as Exhibit B, Sheet C-2.03 and C-2.04.
10.    The work on the Killington Grand Hotel parking lot is essentially a reconfiguration of the
existing parking lot. The total size of the Hotel parking area will not increase, nor will the
lighting for the parking area change. The reconfiguration will add 28 parking spaces to the lot.
11.    The proposed Parking Project also calls for a realignment of Killington Road near the
Ramshead and Snowshed lots, as depicted on Exhibit B, Sheet C-2.02. The areas at and around
where the Ramshead and Snowshed lots are now located are proposed to be occupied by an
altered Killington Road.     The altered Killington Road will contain a roundabout at the
intersection of Killington Road and East Mountain Road, which will be surrounded by new
developments, including new base lodges. This roundabout and the development surrounding
it are not the subject of this Act 250 application, but rather are the subject of the separate
master plan application and subsequent specific development permit applications. We provide
this summary here for contextual purposes only.
12.    The proposed parking lots C through J will cause about 24± acres that are mostly
wooded to be clear-cut and topped with gravel, an impervious surface. This area will also
contain lighting for the parking areas, landscaping, and plantings that will add to the aesthetic
screening already provided by the trees and brush that will remain in the areas surrounding the
proposed parking lots.
13.    While these 24± acres are currently wooded, they are surrounded by a number of other
developments, including the Pinnacle Condominium Development, The Mountain Inn, the
Cascades Lodge, and the Mountain Green Condominium Development. The Killington golf
course, lifts, ski trails, hotels, multiple condominium developments, restaurants, nightclubs, ski

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shops, and other commercial enterprises are located with a mile or so of the proposed
development.
14.    All of the proposed parking lots will have designated parking areas, travel lanes, and
pole-mounted lights to illuminate the parking areas.
15.    The proposed parking lots, stormwater treatment system, Road H improvements, and
Killington Road realignment are all located in the Ski Village II District, as defined by the Town of
Killington Town Plan, a copy of which was admitted at trial as Exhibit S. The reconfiguration of
a portion of the parking lot at the Killington Grand Hotel is located in the Ski Village District of
the Town Plan.
16.    All areas proposed for development in this application are included in the areas
identified in the Rutland Regional Plan (admitted at trial as Exhibit T) as a “High Density
Development” area. See Ex. T at 31, map entitled “Rutland Region Future Use of Land.” In fact,
the area proposed for this development is one of only five areas in all of Rutland County
identified as a “Sub-Regional Center” for future development under the Rutland Regional Plan.

       b. Road Realignment & Traffic Congestion
17.    The portion of Killington Road that is proposed to be reconfigured as part of this
application begins on the southern end at a proposed curb cut that will serve as an entrance to
Lot G and ends just above the planned intersection with a new private roadway, identified as
Road H, that will serve as an entrance to Lots C, D, E, and F.
18.    The proposed Road H will be a new private road that runs east/west, connecting
Killington Road with Old Mill Road, which is an existing private roadway that serves as access to
other existing developments and to a wastewater treatment plant.
19.    By locating the new day skier parking below (north of) the main base area, the proposed
plan will allow day skiers and other visitors to avoid driving into the main base area, where the
day skier parking is currently located. Shuttle buses will provide access from the new parking
areas to the main base area. The proposed Road H will allow day skiers and other traffic to also
access East Mountain Road via Old Mill Road, which provides an alternate access to and from
the Resort area to the south and Route 4 to the north.



                                                 7
20.      Road H will also serve as an access to two of the new parking lots that will adjoin Road
H: Lots C and D. Guardrails will be installed along portions of Road H, as depicted on the
revised site plans, particularly where the grade of the land below the roadway becomes steep.
21.      A sidewalk is also planned along Road H to serve pedestrians.
22.      Pinnacle initially objected to the alignment of Road H and the sidewalk, asserting that
with Road H directly adjacent to its property, the proposed landscaping would be insufficient to
mitigate the adverse aesthetic impacts of this new roadway.
23.      In response to Pinnacle’s concerns and objections, Applicant revised the portion of its
plans relating to Road H and the adjacent sidewalk: Road H and the sidewalk will essentially
swap locations, so that the sidewalk will be nearest to the Pinnacle development (as shown on
the revised plans offered and admitted post-trial per the consent of the parties).
24.      The sidewalk will provide pedestrian access between the proposed parking areas and
sidewalks along Old Mill Road, which in turn provide pedestrian access to the Resort center.
25.      Applicant has also pledged to install and maintain additional tree plantings and
landscaping on either side of Road H and the sidewalk, in an effort to help further mitigate any
possible adverse aesthetic impacts. All such additional landscaping is depicted on the revised
plans.
26.      Applicant has also proposed to install intersection and directional signs at the end of
Road H, where it joins with Old Mill Road, all as depicted on the revised plans. The stop sign at
this intersection will be relocated, so as to accommodate a cross walk at the end of Road H, and
a “No Outlet” sign will be installed on the eastern side of Old Mill Road north of the intersection
with Road H.
27.      There are two internal intersections proposed along Road H between the Killington and
Old Mill Road intersections. To the west, near Road H’s junction with Killington Road, Road H
intersects with a small north/south access way connecting Lots C and E. To the east, near Road
H’s junction with Old Mill Road, Road H intersects with a small access way connecting Lot D and
The Mountain Inn parking lot.
28.      As currently configured, day skiers and other visitors drive their vehicles up the full
length of Killington Road (both the public and private portions of the roadway) to the existing


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Ramshead and Snowshed parking areas adjacent to the existing main base area. Once the
proposed new day skier parking lots are constructed, visitors will be able to enter the new
parking areas below (north of) the main base area, thereby avoiding the stretch of Killington
Road between the proposed Road H and the entrance to the main base area.
29.    The distance between the main base area and the proposed Lot C is about 0.2 miles; for
the proposed Lot J, the distance is about 0.5 miles. Applicant will provide shuttle bus service
from the new parking lots to the lift areas. Visitors can walk from the new lots to the base
lodge and lift areas or take one of the shuttle buses Applicant will provide.
30.    Some visitors may choose to continue to drive up Killington Road to the main base area,
so as to drop off some passengers. Many will prefer to park in the new parking lots, so as to
avoid traffic congestion at the main base area, particularly during busy winter weekends.
31.    The proposed shuttle bus service will help reduce the volume of traffic on Killington
Road between the new parking lots and the main base area because every shuttle bus will carry
a number of vehicle drivers and their passengers to the main base area. The shuttle buses will
operate on a circular route, using Killington Road, the internal roads around the main base area,
Old Mill Road, and the proposed Road H. This proposed shuttle bus route will provide further
reductions to the vehicular traffic on Killington Road.
32.    The Parking Project itself does not increase day skier parking capacity at the Resort; this
Project effectively replaces existing day skier parking facilities with new parking areas in what is
best described as an infill development project. The proposed Parking Project will not increase
traffic on the adjoining public or private roadways. In fact, for the reasons stated above, the
proposed parking lots will likely reduce traffic on Killington Road between the project site and
the main base area.

       c. Intersection Configuration and Traffic Safety
33.    At its intersection with Killington Road, Road H will have three travel lanes: one lane for
traffic travelling from Killington Road onto Road H and two travel lanes for traffic travelling
from Road H onto Killington Road. The southern (left-hand) outlet lane on Road H will be for
traffic turning left and intending to travel to the Resort, and the northern (right-hand) lane will
be for traffic turning right towards U.S. Route 4 and Vermont Route 100.

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34.    Similarly, Killington Road will have a dedicated left-hand lane for southbound traffic
making a left-hand turn onto Road H. A second, right-hand lane on Killington Road will allow
through traffic to continue to travel up to the main base area. In this area, and continuing to
the main base area, Killington Road will have two northbound lanes travelling away from the
main base area. This will allow through traffic to safely continue past vehicles making a right-
hand turn onto Road H.
35.    Road H will be paved, and the travel lanes will be marked, including arrows painted on
the pavement to mark the direction of intended travel at the intersection with Killington Road.
36.    At the intersection of Road H with Old Mill Road, there will be sufficient sight distances
to allow drivers to safely pass through this private road intersection. Most traffic travelling
from Road H and onto Old Mill Road will likely be turning right so as to travel in a southerly
direction, towards the main Resort center, the Grand Hotel, and East Mountain Road.
37.    Travelers on Road H heading west, towards Killington Road, will be afforded sufficient
sight distances to the north for the Road H driver to turn onto Killington Road in a safe manner,
so as to avoid oncoming traffic; achieving adequate sight distances to the south will require
some clearing of vegetation and snow pile-up along the eastern shoulder of Killington Road.
Sight distances are sufficient for southbound Killington Road drivers to safely turn left onto
Road H.
38.    There will be another access to the proposed parking area from Killington Road in the
vicinity of Lot G. At that intersection, there will be sufficient sight distances in both directions
on Killington Road to provide safe ingress and egress from Lot G and the adjoining parking lots.

       d. Screening, Landscaping, and Lighting
39.    Large areas of trees, shrubs, and other natural growth will remain along the eastern and
western boundaries of parking lots C through J, including along the full length of Killington
Road. These existing trees and forest growth will screen the view of the proposed Lots C
through J from most adjoining and off-site areas.         One of the buildings in the Pinnacle
condominium development will have a partial view of Lot D.
40.    Off site, the only views of these new parking areas will be from a brief stretch of
Killington Road as vehicles travel downhill (north) towards Routes 4 and 100; the only other off-

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site view may be from the MDI property off of Mountainside Drive, but that view will be
partially obscured and from a considerable distance. The new parking areas may be partially
and briefly seen by skiers on the Resort ski trials. The existing parking areas are also visible
from ski slopes.
41.       Additional tree planting and other landscaping will be completed along Road H, its
sidewalk, and along the exterior portions of the new parking lots. These new plantings,
detailed in Applicant’s landscaping plans, will provide additional screening for the proposed
new parking lots.
42.       There will also be downcast lighting from light poles installed in the parking lots, as
depicted on Applicant’s revised site plans. This lighting will provide sufficient illumination for
visitors during short mid-winter days. However, the light fixtures will block a direct view of the
source of the illumination from outside the parking lots.
43.       Internal sidewalks and walkways will also be installed within the proposed parking lots,
which will direct day skiers and other visitors to the shuttle bus pick up points. The internal
walkways will also provide visitors access to the sidewalks that will lead to the main Resort
center.

          e. Stream, Stormwater, and Erosion Impacts
44.       By virtue of the very nature of the Killington Ski Resort and its surroundings,
development may have significant impacts upon the high-altitude natural areas at the Resort
and adjacent natural resources, including streams and the ground and surface waters that flow
into those streams. This particular development does not impact the most pristine natural
areas, since it is located at the lowest elevations of the Resort. While the area proposed for
Parking Lots C through J is presently undeveloped, that area is surrounded by existing
commercial and residential developments. The existing center of the Resort development is
only a short distance away.
45.       There is only one recognized stream near the Parking Project: the Roaring Brook. There
is no stream or water course located on the lands to be developed.




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46.    Roaring Brook travels from south to north, beginning on the opposite side of Killington
Road from the Parking Project areas. It passes underneath Killington Road about 100 feet from
the northwestern corner of Lot G.
47.    Thereafter, the area to be developed for the proposed Lots H, I, and J parallel the top of
the eastern bank of the Roaring Brook, at a distance of at least 75 feet. The site plan depicted
as Exhibit B, Sheet C-3.04 accurately depicts the proximity of the proposed development to the
top of the Roaring Brook’s banks.
48.    The lands between the Roaring Brook and Lots G, H, I, and J are mostly wooded and
brush-filled. The ground cover in this area provides excellent filtration for surface and ground
water that flows in this area. The lands on the opposite side of the Roaring Brook, between the
Brook and the existing Killington Road, are also thickly wooded.
49.    The proposed Lot J is the lowest lot by elevation. Below Lot J is the area proposed to
host a large stormwater “wet pond.” This pond will detain and treat stormwater that flows
from the proposed lots, as well as stormwater that may flow from other existing and proposed
developments above (south of) this wet pond.
50.    The proposed wet pond includes an outflow structure that will protect the wet pond
during extreme stormwater flow events by directing the outflow of treated water from a
specific location, rather than allowing it to breach the banks of the wet pond. A forty-foot
portion of this outflow structure is less than fifty feet from the top of the bank of the Roaring
Brook, as depicted on Exhibit B, Sheet C-3.04 and C-4.04.
51.    The treatment that this wet pond provides will be a significant improvement to existing
circumstances, since the existing day skier parking areas do not have stormwater treatment
facilities to serve them.
52.    Applicant applied for and received ANR Stormwater Discharge Permit #6774-INDC
(“Stormwater Construction Permit”). This permit was issued on May 23, 2013; a copy of the
Stormwater Construction Permit was admitted at trial as Exhibit F. It governs the construction
of Applicant’s proposed stormwater detention pond and treatment systems.
53.    The Stormwater Construction Permit was not appealed and has therefore become final.




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54.    The Stormwater Construction Permit details the location, size, and manner of
construction of the various stormwater treatment systems. The proposed treatment systems,
including the stormwater detention wet pond below Lot J, are designed and permitted to
address stormwater runoff from all components of the Parking Project, as well as certain
improvements addressed in the master plan proceedings. The Stormwater Construction Permit
establishes erosion prevention and sediment control requirements for the construction of the
proposed improvements; inspection, discharge sampling, corrective action, and recordkeeping
requirements for the new stormwater treatment systems; and the transfer and termination
requirements of the Permit.
55.    Applicant also applied for and received ANR Stormwater Discharge Permit #6774-INDS
(“Stormwater Operational Permit”); that Permit governs the operational parameters for
Applicant’s proposed stormwater treatment systems, including the Parking Project stormwater
detention wet pond. A copy of this Permit was admitted at trial as Exhibit G.
56.    The Stormwater Operational Permit was also issued on May 23, 2013. No appeal was
filed from this permit determination.
57.    The Stormwater Operational Permit authorizes the permittee, its successors, and
assigns to allow or cause the discharge of stormwater runoff from the impervious surfaces that
will be created by the Parking Project and other components of the master plan. Specifically,
this Permit memorializes the ANR determination that stormwater discharges from the
identified development areas satisfy applicable state rules and regulations regarding water
quality due to the stormwater’s treatment through grass channels, underground sand filters,
dry detention ponds, wet detention ponds, disconnected overland sheet flow, and natural area
conservation, and will not increase the sediment load or hydrologic load of receiving waters.
58.    Mr. Durkee expressed several concerns that the proposed development will increase
the flow of stormwater into the Roaring Brook, perhaps even causing overflows that may
impact the Durkee properties located below (north of) the Parking Project, particularly the
property he owns at 2023 Killington Road. The Roaring Brook runs along or near that property.
59.    Mr. Durkee was provided an opportunity at trial to provide testimony and other
evidence to refute the ANR determinations that the Project will not increase the hydrologic


                                               13
load of the receiving waters. Mr. Durkee did not introduce any new evidence (testimony or
exhibits) to support his concerns, but tried to support his concerns through cross-examination.
60.    In addition to its permits, Applicant introduced credible evidence through testimony of a
stormwater expert, Jeffrey Nelson, that the Project and its stormwater system will preserve the
natural condition of the Roaring Brook during significant storm events, and that even during
such significant storms, the proposed development will not cause flooding in the Roaring Brook.
II.    Appellants’ Properties.
61.    Pinnacle is an association of owners of residential condominiums located in six buildings
adjacent to the proposed Lots D and E. Building A in the Pinnacle Development is the closest
Pinnacle building to any of the proposed lots.
62.    Appellant Stephen Durkee owns properties at 2134 Killington Road and 2023 Killington
Road in Killington, Vermont. The property at 2134 Killington Road includes a single residence,
and the property at 2023 Killington Road includes a market/office building and associated
parking. Each of these properties is located below (north of) the proposed Parking Project.
These properties are located 1.1 and 1.2 miles, respectively, from the proposed Parking Project
site; these two properties are the closest of Appellants’ properties to the Project site.
63.    Mr. Durkee owns a controlling interest in Appellants Mountainside Properties, Inc.;
Mountainside Development, Inc.; Fireside Properties, LLC; and Killington Village Properties, Inc.
(collectively, the “Durkee Entities”).
64.    Appellant Mountainside Properties, Inc. (“MPI”) owns properties located on East
Mountain Road and on U.S. Route 4 in Killington, Vermont.               Both MPI properties are
undeveloped and are too far away to have views of the proposed development.
65.    Appellant Mountainside Development, Inc. (“MDI”) owns property at Mountainside
Drive in Killington, Vermont. The MDI property is an undeveloped single residential lot within a
subdivision.
66.    Appellant Fireside Properties, Inc. (“Fireside”) owns property at 1128 Killington Road in
Killington. The Fireside property includes a hunting lodge and associated cabins.
67.    Appellant Killington Village Properties, Inc. (“KVP”) owns commercial property at 923
Killington Road in Killington, Vermont.


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68.       Mr. Durkee resides at 337 Old Elbow Road in Mendon, Vermont. Mr. Durkee regularly
travels Killington Road in the area of the Parking Project in order to access, manage, and inspect
the properties owned by the Durkee Entities.

                                         Conclusions of Law
          In this appeal, we are charged with addressing the legal issues that are presented for
the Court’s consideration that remain for consideration at trial. V.R.E.C.P. 5(f). As we note in
the Preliminary Issues Section, above, Appellants have standing to raise legal challenges under
four of the Act 250 criteria and sub-criteria enumerated in 10 V.S.A. § 6086(a): Criterion 1(E)
(concerning impacts upon streams and waters); Criterion 5 (concerning traffic impacts);
Criterion 8 (concerning aesthetic impacts); and Criterion 10 (concerning conformance with the
applicable town and regional plan provisions). The District Commission’s legal determinations
that the Project conformed to other applicable criteria were not appealed and have therefore
become final. V.R.E.C.P. 5(f); 10 V.S.A. § 8504(h) (limiting the legal issues to be heard in a de
novo appeal to those that have been raised in an appellant’s statement of questions).

I.        Scope of Review
          Before we embark on our review of the applicable four criteria, we must address some
confusion about the relationship between the pending application and the related but separate
master plan application, the latter being the subject of a separate appeal to this Court, Docket
No. 147-10-13 Vtec.
          While the two appeals concern developments on adjacent properties, the applications
being reviewed are very different. At their most basic form, this Parking Project appeal
concerns an application for an Act 250 permit; the master plan application principally seeks
positive factual findings and legal conclusions for several different projects that are proposed to
reconfigure, reconstruct, and expand the developments at the village core of the Killington
Resort.
          Addressing Appellants’ suggestion first, it is true that, outside the master plan context,
when an Act 250 permit application seeks approval for only one part of what is really a
coordinated development, we look to the cumulative impacts of the development as a whole in
our Act 250 review. See Re: Albert and Doris Stevens, No. 4C0227-3-EB, Findings of Fact,

                                                 15
Conclusions of Law, and Order, at 3 (Vt. Envtl. Bd. July 28, 1990). But master plan review is
meant to provide conceptual approval of a large-scale project. See Re: Green Peak Estates, Inc.,
No. 8B0314-2-EB, Findings of Fact, Conclusions of Law, and Order, at 8 (Vt. Envtl. Bd. July 22,
1986). Individual phases of the project may either then be reviewed separately in individual
permit application proceeding or as part of a master plan proceeding, when a specific phase of
a master plan development seeks Act 250 permit approval. See Act 250 Rules, Rule 21, Code of
Vt. Rules 16-5-200:21 (WL) (“Master plan decisions include partial findings of fact and
conclusions of law for a phased development or subdivision and may also include a permit for
the initial construction phase.”). Reviewing cumulative effects of the entire development
proposed in a master plan every time we issue a permit for a particular phase of development
would eliminate any efficiencies created by master plan review. See id. (establishing that the
purpose of master plan proceedings is to “create[] greater efficiency in the application review
process, avoid[] unnecessary and unreasonable costs, and provide[] guidance and greater
predictability to the applicant and all parties by providing for master plan decisions”). When we
review an individual phase of a master plan, we will therefore consider only impacts caused by
that phase of development; we will reserve cumulative review for the master plan proceedings.
       At the other end of the spectrum, we do not agree that, since Applicant seeks a
“construction permit” we can only review impacts from construction, and not from the use of
the constructed facilities.   All Act 250 permits for new development are in some sense
“construction permits.” We nevertheless review the impacts of a development’s use, not just
the construction. The fact that there is also a pending master plan appeal in this case does not
change this, for “[a] master plan proceeding is not a substitute for review of specific projects
that are included in the plan.” Re: Winhall/Stratton Fire District #1, No. 2W0519-6A-EB,
Memorandum of Decision, at 5 (Vt. Envtl. Bd. Aug. 31, 1999).
       We maintain that we will review impacts from both the construction and use of the
development proposed in the Parking Project, but we will reserve consideration of the full
impacts of the related project proposed in the master plan to the master plan appeal.
       Exactly what impacts are attributable to this Parking Project is difficult to pin down,
however, because the Parking Project application seeks approval for the construction of


                                               16
individual project components that will serve secondary roles of supporting and mitigating the
principal developments proposed in the village core master plan. For example, the new parking
lots will not, in and of themselves, generate traffic, but rather are proposed to provide for the
parking needs of the visitors anticipated to the proposed village core developments. Similarly,
the proposed wet pond and related treatment systems will not cause more stormwater to
accumulate, but rather are proposed to provide for the treatment of stormwater that will be
accumulated as a result of the development and use of the village core developments.
       Because of the overlap in the facilities proposed in this application and the larger
project these facilities will support, we will analyze the impacts that may be caused by the
construction and use of these components in the Parking Project, but will also assess the
impacts of their uses in the master plan appeal.
       We therefore move to the tasks at hand in this appeal: whether the proposed Parking
Project development components can receive positive findings of fact and conclusions of law
under the four Act 250 criteria that have been preserved for our review in this appeal.

II.    Criterion 1(E): Stream Impacts (Appellants’ Question 1)
       By their Question 1, Appellants ask whether the proposed Parking Project “will maintain
the natural condition of streams in the project area, including, inter alia, the streams’
respective volume, depth, velocity of water flow, physical features, aesthetic values, bank
stability, water quality, and habitat, as required by 10 V.S.A. § 6086(a)(1)(E).” Appellants’
Statement of Questions at 1, filed January 13, 2014.          Criterion 1(E) requires that “the
development or subdivision of lands on or adjacent to the banks of a stream [must], whenever
feasible, maintain the natural condition of the stream, and will not endanger the health, safety,
or welfare of the public or adjoining landowners.” 10 V.S.A. § 6086(1)(E). Applicants bear the
burden of proof under Criterion 1(E). 10 V.S.A. § 6088(a).

       a. Whether Criterion 1(E) applies to the Parking Project
       As a preliminary matter, Applicant appears to concede that Criterion 1(E) applies to this
project, even though the Roaring Brook is not actually on its property and development is not
literally adjacent to the stream. The Roaring Brook first flows on the opposite side of Killington
Road from the proposed development, and then crosses under Killington Road at a point about

                                               17
100 feet away from Lots G and H. As the Roaring Brook travels further downhill, it passes the
two remaining parking lots proposed in this development, Lots I and J, and then passes by the
final component of this proposed development: the stormwater treatment wet pond. These
developments are 75 to 100 feet away from the closest portions of the top of the bank of the
Roaring Brook, with one exception: a portion of the outlet swale for the treatment pond, forty
feet of which encroaches into the setback from the Roaring Brook bank.
       Prior cases have not required that development actually abut streams for Criterion 1(E)
to apply. See, e.g., In re Barre Granite Quarries, LLC, No. 7C1079, Findings of Fact, Conclusions
of Law, and Order, at 72 (Vt. Envtl. Bd. Dec. 8, 2000) (applying Criterion 1(E) where proposed
development maintained at least a 100-foot buffer from stream banks). Furthermore, ANR
recommends a 50-foot riparian buffer for all development, so proposed developments will
almost never occur on the actual banks of a stream. Because Applicant’s proposed stormwater
system will ultimately discharge treated stormwater into the Roaring Brook, and because the
Project is as nearly “adjacent” to the stream as ANR recommendations allow, it is “adjacent” to
the stream for the purposes of Criterion 1(E).

       b. Whether the Parking Project complies with Criterion 1(E).
       To satisfy their burden under Criterion 1(E), Applicants introduced their construction
and operation stormwater discharge permits from ANR. Under 10 V.S.A. § 6086(d) and Act 250
Rule 19, permits from state environmental agencies create certain presumptions in Act 250
proceedings. An opponent to a project can rebut these presumptions by introducing evidence
“fairly and reasonably indicating that the real fact is not as presumed.” See In re Hawk
Mountain, 149 Vt. 179, 186 (1988). Once the presumption is rebutted, it disappears, and the
burden shifts back to Applicant. Id.
       A permit may still be relevant as evidence of compliance, however, even after it has
been rebutted. Act 250 Rules, Rule 19(F). Even after a permit has been rebutted, technical
determinations by ANR receive substantial deference from this Court. See 10 V.S.A. § 6086(d)
(“[T]echnical determinations of [ANR] shall be accorded substantial deference by the
Commissions.”); 10 V.S.A. § 8504 (providing that the Environmental Division must apply same
deference to ANR technical determinations as Commissions do).

                                                 18
       Rule 19(E), promulgated under 10 V.S.A. § 6086(d), enumerates six facts that may be
presumed from certain specified permits. None of these six presumptions have any direct
relevance to Criterion 1(E). The Environmental Board has not treated the list in Rule 19(E) as
exhaustive, however, and has found compliance with Criterion 1(E) based on stormwater
permits in the past. See, e.g., Re: St. Albans Grp. & Wal*Mart Stores, Inc., No. 6F0471-EB,
Findings of Fact, Conclusions of Law, and Order (Altered), at 16 (Vt. Envtl. Bd. June 27, 1995).
       But, even though the list of presumptions in Rule 19(E) is not exhaustive, that does not
give free range to create presumptions of compliance with Act 250 Criteria that have no
relation to matters considered in the permit. It would be illogical, for instance, to presume that
a project complied with Criterion 1(E) because it had an air pollution permit. In a less drastic
example, it would be illogical to find compliance with Criterion 1(E)’s mandate that streams be
kept in their natural condition based on a stormwater permit that only addressed water
pollution, but not volume of water discharged. In other words, a permit creates a presumption
that determinations in the permit are true. Thus, a presumption is as broad as the permit, but
not broader.
       These proposed construction plans, including the outflow for the pond, have received
construction and operational permits from ANR. In these permits, ANR determined that
discharges that flow into the proposed stormwater treatment systems from the Project will not
increase the sediment or “hydrologic load” (i.e., volume) of the receiving waters.
       These determinations do not mirror the language of Criterion 1(E)—at no point in the
permit does ANR declare that “the development or subdivision of lands on or adjacent to the
banks of a stream will, whenever feasible, maintain the natural condition of the stream, and will
not endanger the health, safety, or welfare of the public or adjoining landowners.” See 10
V.S.A. § 6086(a)(1)(E). Nevertheless, ANR’s two determinations satisfy Criterion 1(E) in this case
because none the impacts Appellant foresees—change in “volume, depth, velocity of water
flow, physical features, aesthetic values, bank stability, water quality, and habitat”—could
logically come to pass if the Project will not increase the pollutant load or water volume in the
stream.    Therefore, unless Appellant rebuts the presumption created by Applicant’s
construction and operating stormwater permits, Applicant will have satisfied Criterion 1(E).


                                                19
       At trial, Appellant did not offer any of his own testimony or exhibits to rebut ANR’s
determinations. Appellant attempted to undermine the credibility of ANR’s witnesses through
cross-examination and by highlight findings ANR did not make with regard to the permit. While
it is theoretically possible for a project opponent to elicit evidence in cross-examination
sufficient to rebut a presumption, barring a Perry Mason or Rumpole-of-the-Bailey coup, it will
be difficult for opponents to elicit evidence “fairly and reasonably indicating that the real fact is
not as presumed” without calling their own witnesses or introducing their own exhibits. See In
re Hawk Mountain, 149 Vt. 179, 186 (1988). Appellants’ cross-examination in this case yielded
no such revelations. Applicant therefore failed to rebut the presumption that the stormwater
system will not increase pollution or water volume in the Roaring Brook, and Applicant has
demonstrated that the Parking Project complies with Criterion 1(E).
       We further note that even if the presumption did not apply, Applicant did not rely solely
upon the Stormwater permit received from ANR, but also provide credible evidence from
Applicant’s own stormwater expert, Jeffrey Nelson, who credibly testified that the proposed
Project and treatment systems within that Project will preserve the natural condition of the
Roaring Brook during significant storm events, and that even during such significant storms, the
proposed development will not cause stormwater or other effects that will “endanger the
health, safety, or welfare of the public or adjoining landowners.” 10 V.S.A. § 6086(a)(1)(E).
       Based upon all this credible evidence, we conclude that the Parking Project as proposed
conforms to Criterion 1(E). Nothing in our legal conclusions here is intended to foreclose
Appellants’ ability to assert that the cumulative impacts from all development proposed in the
master plan application may not support factual findings or legal conclusions that the master
plan development conforms with Act 250 criterion 1(E).

III.   Criterion 5: Traffic (Appellants’ Question 2)
       By their Question 2 from the Statement of Questions Appellants ask:
       2.      Whether under 10 V.S.A. § 8086(a)(5) the Parking Project will create
       unreasonable congestion or unsafe conditions with respect to the use of highways and
       other means of transportation, including congestion or unsafe conditions, inter alia, due
       to (a) the volume of traffic that will be created by the project, and/or (b) the operation
       of a shuttle bus service and the interaction of that service with pedestrians.


                                                 20
        Appellants’ Statement of Questions at 1, filed January 13, 2014.
        Act 250 Criterion 5 requires that a project will not result in “unreasonable congestion or
unsafe conditions with respect to use of the highways.” 10 V.S.A. § 6086(a)(5). Based upon
the credible evidence that was admitted at trial, we conclude that the construction of the
Parking Project improvements will not cause the traffic congestion impacts Appellants fear.
The Project will not cause an increase in traffic, a fact that even Appellants admit.4 Rather, the
proposed parking lots will serve the traffic that may be caused by the other developments
proposed in the village core, as detailed in the master plan application. It is for that reason that
the parties and the Court agreed that traffic impacts from increased traffic volumes associated
with the other developments in the master plan, including cumulative traffic impacts, are more
appropriately analyzed in the master plan appeal.
        Nonetheless, there are certain aspects of the proposed construction, including the
construction of the proposed Road H, that we must analyze in this permit application appeal,
because these aspects may affect the flow and safety of traffic in the area.

        a. Congestion
        Road H will provide an alternate pass-through between Killington Road and Old Mill
Road, allowing visitors to avoid the traffic that accumulates at the current main base area,
particularly during busy winter weekends. Also, with the current parking situation, the only
entrance to the parking lots is near the main base area. Adding an entrance north of the base
area and a shuttle service to the lifts may encourage drivers to park and ride, alleviating pick-up
and drop-off traffic at the main base area and lightening traffic along Killington Road. Based
upon the credible evidence that was admitted at trial, we conclude that the construction of the
Parking Project improvements will not cause the traffic congestion that Mr. Durkee fears for his
two Killington Road properties, but will actually improve congestion.




        4
            Appellants conceded this point in their post-trial briefing. New development in the Village Core
proposed in Applicant’s related master plan application may increase traffic in the area. While parking lots
proposed in this appeal may serve that additional traffic, they will not cause it. The Court will therefore consider
traffic impacts from the development associated with the master plan in the master plan appeal, and not in this
matter.

                                                        21
       b. Safety
       The intersections along Road H will provide safe access between the Road and the
adjoining parking areas, including the existing parking lot for The Mountain Inn.               The
intersection with Old Mill Road will also have sufficient signage and sight distances to allow cars
to safely pass through the intersection. A sidewalk is now proposed to run parallel to Road H,
just north of the Road and adjacent to the existing Pinnacle development. A recently added
cross-walk will allow pedestrians to safely cross over Road H near its intersection with Old Mill
Road, so that the pedestrians may continue to travel to and from the Pinnacle development,
the main base area, and other adjoining developments. A recently-added traffic sign along Old
Mill Road will warn those travelling below Road H that there is “No Outlet,” since Old Mill Road
dead ends at the existing sewer treatment plant. All these features lead us to conclude that the
internal intersections along Road H and its intersection with Old Mill Road in conformance with
Criterion 5.
       The proposed intersection between Road H and Killington Road requires more scrutiny,
simply due to the level of traffic that flows along Killington Road in this area, to and from the
existing main base area. The construction of these parking lots will alleviate some of that
traffic, since day skiers and other visitors will no longer be required to travel to the main base
area to park. The intersection itself is well designed, allowing for three travel lanes. Road H will
have dedicated right and left turn lanes onto Killington Road. Killington Road will have a
dedicated left-turn lane for southbound traffic to turn onto Road H and a right-hand pass-
through lane. Killington Road will also have two northbound lanes near Road H, allowing
northbound traffic to safely pass cars attempting to turn onto Road H. Sight distances are
adequate for Road H cars turning onto Killington Road to safely pull into the intersection.
       Finally, the shuttle bus loop will run along Killington Road, Road H, Old Mill Road, and
internal roadways near the main base area. This route poses little danger to pedestrians. Few
if any pedestrians use Killington Road, and Road H has a sidewalk separating Road H from
traffic. In the parking lots and at the main base area there will be a system of walkways (and
personnel on busy days) directing pedestrian and vehicular traffic. We therefore conclude that
the proposed shuttle bus and parking lot improvements will not pose a danger to pedestrians.


                                                22
       For all these reasons, we conclude that the proposal to construct the Parking Project
improvements as represented conform to Act 250 Criterion 5 and therefore answer Appellants’
Question 2 in that fashion. Nothing in these determinations shall foreclose Appellants from
asserting that the cumulative impacts from all development proposed in the master plan
application may not support factual findings or legal conclusions that the master plan
development conforms with Act 250 criterion 5.

IV.    Criterion 8: Aesthetics (Appellants’ Questions 4, 5, and 6)

       Questions 4, 5, and 6 of Appellants’ Statement of Questions relate to Criterion 8:
       4. Whether the Parking Project will have an undue adverse effect on the scenic
          or natural beauty of the area, or aesthetics, under 10 V.S.A. § 6086(a)(8).
       5. Whether the scale and location of the Parking Project and associated
          developments are shocking and offensive to the average person such that
          the Parking Project will have an undue adverse effect on the scenic or
          natural beauty of the area, or aesthetics, under 10 V.S.A. § 6086(a)(8).
       6. Whether the applicant has failed to take generally available mitigating steps
          to minimize the impact of the Parking Project such that the Parking Project
          will have an undue adverse effect on the scenic or natural beauty of the
          area, or aesthetics, under 10 V.S.A. § 6086(a)(8).

       Appellants’ Statement of Questions at 2, filed January 13, 2014.
       Criterion 8 requires that a project “[w]ill not have an undue adverse effect on the scenic
or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas.”
10 V.S.A. § 6086(a)(8). Appellants’ Question 4 replicates this statutory language, and their
Questions 5 and 6 mirror two of the stages of the Act 250 aesthetic analysis first announced by
the former Vermont Environmental Board in its review in the mid-1980s of the Quechee Lakes
development. Ultimately, the Vermont Supreme Court adopted the two-part test announced
by the Environmental Board; more recently, it summarized the Quechee test under criterion 8
as follows:
              The [District Commission] employs a two-pronged approach to
       determine if an application complies with Criterion 8. First, it determines if the
       proposed project will have an adverse aesthetic impact, and if so, it considers
       whether the adverse impact would be undue. An adverse impact is considered
       undue if any one of the three following questions is answered in the affirmative:
       (1) does the project violate a clear, written community standard intended to

                                                23
        preserve the aesthetics or scenic, natural beauty of the area; (2) does the
        project offend the sensibilities of the average person; and (3) has the applicant
        failed to take generally available mitigating steps that a reasonable person
        would take to improve the harmony of the proposed project with its
        surroundings.

        In re: Appeal of Times & Seasons, LLC and Benoit, 2008 VT 7, ¶ 8 (citations omitted).
Opponents of a proposed development bear the burden of persuasion under Criterion 8, but
the initial burden of production remains with an applicant. 10 V.S.A. § 6088(b); see also In re
Eastview at Middlebury, Inc., No. 256-11-06 Vtec, slip op. at 5 (Vt. Envtl. Ct. Feb. 15, 2008)
(Durkin, J.), aff’d, 2009 VT 98, 187 Vt. 208.
        Our focus is the impacts upon two of the Durkee Entities—MPI, which owns a property
on East Mountain Road, and MDI, which owns property on Mountainside Drive—which are the
only Appellants that secured party status under Criterion 8. These entities allege that MDI’s
property on Mountainside Drive has a view of the Parking Project area; it is unclear from the
trial testimony whether MPI, through its agent, Mr. Durkee, asserted that the Project was also
visible from MPI property.5 However, even if a view of the project is possible from either of
these properties, it is only partial, at best, and is tempered by the considerable distance
between the properties and the Project. Appellants also allege that the Parking Project will
result in a loss of forest cover due to the construction of parking lots, and possible “noise
pollution” from the use of the new parking areas. Appellants chose not to provide a factual
foundation for these allegations when offered an opportunity to do so at trial.
        Our analysis of the proposed development must be taken within its planned context,
see Re: Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-EB, at 18 (Vt. Envtl. Bd. Nov. 4,
1985), which consists of an already highly developed area of a large ski resort. The Parking
Project is meant to replace equally large and somewhat undefined gravel parking areas that
have little screening or landscaping. The existing parking lots are located at the main base area
and can hardly be regarded as aesthetically attractive or contributing a positive aesthetic
character to that area.


        5
           Mr. Durkee did not offer testimony at trial. These assertions were only made during cross-examination
of Applicant’s witnesses.

                                                      24
       The Proposed Parking lots, Road H and sidewalk, and the stormwater detention pond
will all be heavily screened by existing vegetation. Additional landscaping and tree plantings
will provide further screening and an aesthetic softening of the Parking Project development.
Off-site views will be minimal, both from Appellants’ two identified locations and during a
driver’s travels down Killington Road. All lighting proposed for these new parking lots will be
provided by downward-facing lighting that will shield the light source from off-site locations.
We received no direct evidence at trial of any aesthetic adversities that the proposed project
will cause. We therefore conclude that the Parking Project as proposed will not cause any
adverse impacts, particularly in relation to the property interests owned by MPI and MDI.
       Furthermore, even if the Project entailed adverse aesthetic impacts, these impacts
would not be undue.       Appellants produced no evidence of “a clear, written community
standard” that this Project violates. In fact, the only evidence we received was that the
applicable provisions of the Town Plan, the Regional Plan, and the municipal zoning regulations
encourage this type of development in this designated area. Similarly, we received no evidence
to support a conclusion that the Project as proposed “offend[s] the sensibilities of the average
person.” Finally, Applicant modified its plans to mitigate potential impacts by swapping the
locations of Road H and its sidewalk, adding landscaping and screening, and adding highway
signage.
       For all these reasons, we conclude that the Parking Project as proposed conforms to Act
250 Criterion 8. We therefore answer Appellants’ Questions 4, 5, and 6 in a similar fashion.

V.     Criterion 10: Regional Plan conformance (Appellants’ Question 9)
       By their Question 9, Appellants ask “[w]hether the Parking project is in conformance
with the Rutland Regional Plan, as required by 10 V.S.A. § 6086(a)(10).” Appellants’ Statement
of Questions at 2, filed January 13, 2014. That Question tracks the statute, which asks whether
a proposed project is “in conformance with any duly adopted local or regional plan or capital
program under 24 V.S.A. chapter 117.” 10 V.S.A. § 6086(a)(10). The Applicant bears the
burden under Criterion 10. 10 V.S.A. § 6088(a). Since Appellants’ Question focuses its only
inquiry upon the applicable regional plan, we direct our only focus to that plan. The Rutland
Regional Plan (“Regional Plan”) was admitted at trial as Exhibit T.

                                                25
       Applicant directed the Court to provisions of the Rutland Regional Plan that appear to
encourage these types of projects. In particular, the area proposed for this development, as
well as the general area of the proposed master plan development in Docket No. 147-10-13
Vtec, is one of only five specific areas in all of Rutland County that is identified as a “Sub-
Regional Center” for future development. Id. The area is also identified in the Plan as a “High
Density” Area. Neither party directed the Court to any regulatory portion of the Regional Plan
with which this proposed Project creates a conflict. We therefore conclude that this Parking
Project conforms to the Regional Plan, and we answer Appellants’ Question 9 in the affirmative.

                                           Conclusion
       For all the reasons stated above, we conclude that the Killington Resort Parking Project
as proposed conforms to the Act 250 criteria presented for our review in this appeal,
specifically Criteria 1(E), 5, 8, and 10 (Regional Plan). We therefore AFFIRM Applicant’s Act 250
permit for the Parking Project. Nothing contained in this Merits Decision or the accompanying
Judgment Order shall be interpreted as prohibiting this Court from making cumulative impact
determinations under Act 250 Criteria 1(E) and 5 in the related but separate master plan
application appeal, Docket No. 147-10-13 Vtec.
       Our determinations here relate only to the pending Parking Project application and not
to the determinations to be issued in the related but separate appeal: Killington Act 250 Master
Plan Application, Docket No. 147-10-13 Vtec. The proceedings in this appeal (Docket No. 173-
12-13 Vtec) are hereby remanded to the District Commission solely to complete the ministerial
act of issuing an Act 250 permit governing the Parking Project that conforms to this Judgment
Order, the accompanying Merits Decision, and the provisions of the District Commission’s
Altered Findings of Fact and Conclusions of Law (#1R0981 (Altered)) relating to the Parking
Project application that were not the subject of the appeal before this Court in this appeal.
       Nothing contained in this Merits Decision or the accompanying Judgment Order shall be
interpreted as prohibiting this Court from making cumulative impact determinations under Act
250 Criteria 1(E) and 5 in the related but separate master plan application appeal, Docket No.
147-10-13 Vtec.



                                               26
       This completes the current proceedings in this Docket before this Court. A Judgment
Order accompanies this Merits Decision.


       Electronically signed at Newfane, Vermont on March 7, 2016 pursuant to V.R.E.F. 7(d).



________________________________
Thomas S. Durkin, Judge
Environmental Division




                                             27
