                                 State of Vermont
                     Superior Court - Environmental Division

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                  E N T R Y R E G A R D I N G M O T I O N
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SP Land Co., et al. Act 250 LU Permit Amendment,          Docket No. 257-11-08 Vtec
Project:    Administrative Amendment authorizing realignment of subdivision
            boundary lines (appeal filed by Mountainside Properties, Inc.)
Applicants:     SP Land Company, LLC, et. al.

Title:        Motion to Alter or Amend, (Filing No. 4)

Filed:        December 15, 2009

Filed By:     C.   Daniel  Hershenson,    Attorney      for     Appellant   Mountainside
              Properties, Inc.
Response in Opposition filed on Jan. 11, 2010, by Co-Applicants SP Land Co.,
    LLC, MTB Killington, LLC, AMSC Killington, LLC, and SP II Resort, LLC
Amicus Curiae Memorandum     filed   on   April   30,    2010    by   Natural   Resources
    Board/Land Use Panel
Reply in Opposition filed on May 14, 2010, by Co-Applicants SP Land Co.,
    LLC, MTB Killington, LLC, AMSC Killington, LLC, and SP II Resort, LLC

___ Granted                 _X_ Denied                        ___ Other

      Appellant Mountainside Properties, Inc. (“Appellant”) filed the pending
motion to amend in response to the Court’s previous Decision in the above-
captioned appeal, In re SP Land Co., No. 257-11-08 Vtec (Vt. Envtl. Ct. Dec.
1, 2009) (Durkin, J.) (hereinafter “Decision”), whereby the Court entered
summary judgment, affirming the third Administrative Amendment to the
Killington Resort Village Master Plan. By Entry Order filed April 12, 2010,
this Court framed the issues presented by Appellant’s pending motion and
asked the parties to provide further briefing on the issue. In response to
the Court’s request, the Land Use Panel of the Vermont Natural Resources
Board (“NRB”) filed its amicus curiae memorandum; Co-Applicants SP Land
Company, LLC, MTB Killington, LLC, AMSC Killington, LLC and SPII Resort, LLC
(hereinafter collectively referred to as “Co-Applicants”) filed a reply to
the NRB’s memorandum.   This Entry Order is issued to address all remaining
issues raised in Appellant’s motion to amend.
      The Decision and April 12, 2010 Entry Order summarize the applicable
material facts; we incorporate those factual representations by reference.
As a source of additional clarifying facts, Co-Applicants submitted with its
May 14, 2010 reply memorandum an affidavit from the District #1 Environmental
Commission (“District Commission”) District Coordinator (“Coordinator”),
William T. Burke. No party to these proceedings has refuted or contradicted
the representations made by Mr. Burke in his affidavit.      We therefore take
those representations as undisputed and admitted, for purposes of our
reconsideration   of   the    parties’  summary   judgment    motions.     See
V.R.C.P. 56(c)(2), (b).    The factual representations of Mr. Burke that are
most applicable to our pending review include the following:
   1. The predecessor owners of the Killington Ski Resort have secured over
      fifty different Act 250 Permits in the course of developing and
In re SP Land Co. Act 250 Permit Amend., No. 257-11-08 Vtec (Entry Order on motion to alter)(08-3-10)   Page 2


        operating the Resort since 1972, and those permits have                                    been    the
        subject of over 300 permit amendments. Burke Aff. at ¶ 3(a).
    2. The lands now owned by Co-Applicants that are the subject of
       Administrative Amendment #1R0835-3 were the subject of the various Act
       250 permits and amendments referenced above. Id.
    3. Rather than directing that Co-Applicants apply for an administrative
       amendment to the multiple Act 250 permits, the District Coordinator
       directed that Co-Applicants apply for an amendment of its Master Plan.
       This direction was given because the Master Plan proceedings “pertained
       to all of the lands within the Killington Resort Master Plan, including
       the lands proposed for subdivision” realignment. Id. at ¶ 3(b).
    4. Mr.   Burke’s   purpose  in    directing  that   the   application   for
       administrative amendment reference the Master Plan proceedings, rather
       than   the  previously  issued   permit  proceedings,   “was  a   purely
       administrative decision made by the District Commission for the sake of
       trying to reduce the confusing collection of permit series numbers that
       have accumulated at the Killington Ski Resort over the past 35 years.”
       Id. at ¶ 6.

      Co-Applicants also assert in their first memorandum in opposition to
Appellant’s motion to alter that since Appellant’s challenge the underlying
District Coordinator’s authority to issue the third Administrative Amendment,
Appellants could not raise that issue in the first instance in their motion
to alter.    Co-Applicants’ assertion here has some merit.       However, we
conclude that Appellant’s Statement of Questions is framed in a broad-enough
fashion so as to allow us the discretion to address the issue raised. See In
re Jolley Assoc., 2006 VT 132, ¶ 9, 181 Vt. 190 (recognizing that this Court
has jurisdiction to address issues “intrinsic” to the questions posed on
appeal).
      We further note from our earlier Decision some facts repeated by Mr.
Burke in his affidavit:    that the challenged Administrative Amendment only
authorized a reconfiguration of the subdivision boundaries for the land
already governed by the Master Plan proceedings; it did not authorize any
development on the subject property; and any future development of any of the
subject lands would require that the Co-Applicants (or their successors in
interest) first “file [permit] amendment applications, detailing the actual
impacts of those developments under the relevant [Act 250} criteria.” Burke
Aff. at ¶ 3(c).
       Lastly, we note that, in addition to all the other Act 250 permits
issued    in  connection with   the  various   Killington  Resort   lands,  a
determination had been previously rendered authorizing the subdivision of the
subject lands. That determination was the first administrative amendment to
the Master Plan proceedings, issued on March 29, 2004.     See Decision, No.
257-11-08 Vtec, slip op. at 3, ¶ 4. While that determination may have been
“questionable,” as suggested by the NRB (see NRB memorandum at 2), no party
filed a timely challenge to that determination, and Appellant has not
challenged that 2004 determination in these proceedings.        The District
Commission’s decision, through its Coordinator, to authorize the subdivision
of Killington lands through Administrative Amendment #1R085-1 therefore has
become final.
      For all these reasons, we conclude that our December 1, 2009 Decision
should not be altered.   The challenged Amendment (Administrative Amendment
#1R085-3) merely authorized a realignment of the previously approved
subdivision of Killington lands.    Appellant has provided no evidence to
In re SP Land Co. Act 250 Permit Amend., No. 257-11-08 Vtec (Entry Order on motion to alter)(08-3-10)   Page 3


refute Co-Applicants’ assertion that there will be no impact on any Act 250
criteria that could be a possible consequence from the limited authorization
that this administrative amendment entails.       Lastly, no development is
authorized by Administrative Amendment #1R085-3; any impact that could occur
will only occur if, and after, an Act 250 permit amendment application is
filed, reviewed, and approved by the District Commission for specific
development.   Appellant or its successors in interest will be entitled to
notice of such proceedings, have an opportunity to petition for party status,
and an opportunity to be heard on the relevant Act 250 criteria.
      For all these reasons, we DENY Appellant’s motion to alter our previous
Decision.




___________________________________________      ___August 3, 2010___
      Thomas S. Durkin, Judge                            Date
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Date copies sent to: ____________               Clerk's Initials _______
Copies sent to:
    Attorney C. Daniel Hershenson for Appellant Mountainside Properties, Inc.
    Attorney Timothy M. Eustace for Appellees/Co-Applicants SP Land Company,
      LLC, MTB Killington, LLC, AMSC Killington, LLC, and SP II Resort, LLC
    Attorneys Melanie Kehne and John H. Hasen for Natural Resources Board/
    Land Use Panel (FYI only)
