                                           STATE OF VERMONT
 SUPERIOR COURT                                                                ENVIRONMENTAL DIVISION
                                                                                  Docket No. 17-2-16 Vtec

                                Killington Village Phase 1 Site Plan

                                    ENTRY REGARDING MOTION

Count 1, Municipal DRB Major Development (17-2-16 Vtec)

Title:            Motion for Partial Summary Judgment (Motion 1)
Filer:            SP Land Company, LLC
Attorney:         Christopher D. Roy
Filed Date:       April 18, 2016

Response in Opposition filed on 05/25/2016 by Attorney Peter H. Banse for
      Appellant Stephen Durkee
Reply filed on 06/07/2016 by Attorney Christopher D. Roy for Appellee SP Land Company, LLC
Response stating Joinder in motion filed on 07/05/2016 by Attorney Kevin E. Brown
      for Interested Person Town of Killington

The motion is GRANTED.

       This de novo appeal concerns the application filed by SP Land Company, LLC (“SPLC”) for
municipal site plan approval of its Phase 1 construction and development at the Killington Ski
Resort (“Resort”) in the Town of Killington. The proposed development specifically includes the
construction and development of the Village Core and Ramshead Brook Subdivision areas.1
When the Town of Killington Planning Commission (“Planning Commission”) approved SPLC’s site
plan application, Appellant Stephen Durkee appealed to this Court, raising eight questions in his
Statement of Questions. Now before the Court is SPLC’s motion for summary judgment on
Appellant’s Questions 1 and 2.

         1
           The phases of the proposed Resort development were also the subject of a separate Act 250 permit
application and appeal that the Court recently addressed in its Merits Decision and Judgment Order: In re Killington
Village Master Plan Act 250 Application Appeal, No. 147-10-13 Vtec (June 21, 2016) (Durkin, J.). The applicant in that
proceeding was also SPLC. In the pending municipal site plan review application, SPLC has represented that the
“Phase 1 of the Village Master Plan [including the proposed developments of the Village Core and Ramshead Brook
Subdivision], as described in the [municipal] Site Plan Application, involves the same project as the one at issue in”
the Act 250 permit appeal proceedings. SPLC Mem. of Law in Supp. of its Mot. for Partial Summ. J at 3 fn. 2, filed
Apr. 18, 2016.
Killington Village Phase 1 Site Plan Application, No. 17-2-16 Vtec (EO on Partial SJ Motion) (08-11-2016) Page 2 of 3.


        In Question 1, Appellant asks whether the pending application “for Site Plan Review [is]
complete without presenting relevant information about the future Phases of its Development?”
Appellant’s Statement of Questions (SOQ) at 1, filed Feb. 29, 2016. This question addresses facts
and circumstances not directly presented by SPLC in its pending application. The Phase 1
development is the first of a multi-phased, multi-year development proposed at the Resort. The
multiple phases were presented in SPLC’s 2013 application for approval of a planned unit
development (“PUD”) zone that encompasses all areas where SPLC proposes the various phases
of development.2 The Planning Commission issued a decision approving that PUD application on
November 13, 2013, which was submitted as Tab A to SPLC’s Statement of Undisputed Facts,
filed on Apr. 18, 2016 (“the 2013 PUD Decision”). The 2013 PUD Decision made clear that no
construction or use of any individual phase of development could occur unless and until the
issuance of “Site Plan review [approval] and . . . zoning permits” for that individual phase. 2013
PUD Decision at 29. No party appealed the 2013 PUD Decision, and it is thus final and binding.3
         Pursuant to the Planning Commission’s 2013 directive, SPLC filed the pending application,
seeking site plan approval for its Phase 1 development, consisting of the commercial and
residential developments in the Village Core and the Ramshead Brook Subdivision. Appellant has
not cited us to provisions of the Town of Killington Zoning Bylaws (“Bylaws”), and we find no
provision in the 2013 PUD Decision or in the Bylaws that directs an applicant to make detailed
presentations on traffic or other impacts from the future phases that have not yet been designed
or detailed in a site plan application. Here, SPLC only seeks site plan approval on its first phase,
and has already received PUD approval for the multi-phased development in a prior proceeding.
For all these reasons, we answer Appellant’s Question 1 by concluding that SPLC’s application is
complete, even though it does not include a presentation of “relevant information” about the
future phases of the proposed Resort development. We therefore GRANT summary judgment
in SPLC’s favor as to Appellant’s Question 1.
         Appellant’s Question 2 asks whether “six years without further review of traffic conditions
[is] an unreasonably length [sic] time period to commence construction.” Appellant’s SOQ at 1.
We understand this question to argue that given SPLC has not disclosed details concerning the
traffic impacts of the future phases of development, it is unreasonable to give SPLC six years from
the date of its site plan review approval for it to commence construction. For the reasons stated
below, we conclude that it is not.


         2
           SPLC’s 2013 application was actually for an amendment to a previously approved PUD proposal, submitted
by a prior owner of the Resort. After the Town of Killington amended its zoning bylaws, SPLC submitted its 2013
application “to align its [prior] PUD Approval #09-007 in order to align the approval [sic] with the updated and revised
process and criteria in Section 505 – Planned Unit Development Approval. Th[e] Application present[ed] for review
the Master Plan, consistent with Section 505(2)(G) of the Zoning Bylaws, and a non-binding preliminary proposal for
phasing, consistent with Section 505(2)(I) of the Zoning Bylaws.” 2013 PUD Decision at 1.
         3
             We regard as undisputed all facts presented by SPLC in its Statement of Undisputed Material Facts, since
no party filed their own statement of disputed or undisputed facts with their subsequent filings. See V.R.C.P. 56(e)(2)
( “If a party . . . fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . .
. consider the fact undisputed for purposes of the motion [and] grant summary judgment if the motion and
supporting materials—including the facts considered undisputed—show that the movant is entitled to
[judgment].”).
Killington Village Phase 1 Site Plan Application, No. 17-2-16 Vtec (EO on Partial SJ Motion) (08-11-2016) Page 3 of 3.


        Section 502(2)(G) of the Bylaws provides that the Planning Commission in the first
instance, and this Court on appeal, “may issue Site Plan Approval for a period of time not in excess
of six years” when the development has been subject to planned unit development review and
approval. Thus, the clear directive of Section 502(2)(G) is to afford discretion to the Commission
or this Court to determine the appropriate time period within which a developer must begin
construction. Since we do not find any directive that a developer of a multi-phased development
must detail traffic and other impacts of future phases when they are only seeking site plan review
for a first phase, we answer Appellant’s Question 2 by concluding that a six-year period to
commence construction is not unreasonable in this case. We therefore GRANT summary
judgment to SPLC as to Appellant’s Question 2.
       Six questions remain from Appellants’ SOQ, mostly concerning traffic and parking
impacts, with one question (Question 6) raising aesthetic concerns. Now that the Court has
addressed the outstanding Motion, the Clerk shall set this matter for a pre-trial conference so
that the Court and the parties may prepare for trial.

So ordered.

Electronically signed on August 12, 2016 at Brattleboro, Vermont, pursuant to V.R.E.F. 7(d).



________________________________
Thomas S. Durkin, Judge
Environmental Division

Notifications:
Peter H. Banse (ERN 3855), Attorney for Appellant Stephen Durkee
Christopher D. Roy (ERN 1352), Attorney for Appellee/Applicant SP Land Company, LLC
Kevin E. Brown (ERN 3578), Attorney for Interested Person Town of Killington
dchamber
