In re SP Land Co.

• Decision Date: 22 September 2011
• Docket Number: No. 10–332.,10–332.
• Citation: 35 A.3d 1007,2011 VT 104
• Parties: In re SP LAND COMPANY, LLC, et al.Act 250 Land Use Permit Amendment (Mountainside Properties, LLC, Appellant).
• Court: Vermont Supreme Court

2011 VT 104

35 A.3d 1007

In re SP LAND COMPANY, LLC, et al.Act 250 Land Use Permit Amendment (Mountainside Properties, LLC, Appellant).

No. 10–332.

Supreme Court of Vermont.

Sept. 22, 2011.

C. Daniel Hershenson and Amy Clarise Ashworth of Hershenson, Carter, Scott & McGee, P.C., Norwich, for Appellant.

Timothy Eustace and Ross Feldmann of Gravel and Shea, Burlington, for Appellees.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

JOHNSON, J.

¶ 1. This appeal arises out of a dispute over an administrative amendment to the master development plan for Killington Resort Village granted to its co-applicants, the current owners of Killington Resort Village and SP Land Company. The District One Environmental Commission originally granted this administrative amendment—authorizing the creation of fifteen subdivided lots over approximately 368 acres of Killington Resort Village for transfer to SP Land Company for “future development purposes”—pursuant to Act 250 Rule 34(D). Mountainside Properties, LLC, an adjoining property owner, appeals the Environmental Court's denial of its motion to alter and amend a grant of summary judgment in favor of co-applicants. Mountainside argues that the Environmental Court erred because: (1) administrative amendments under Rule 34(D) require an underlying Act 250 land use permit, and (2) co-applicants' fifteen-lot subdivision cannot be approved without demonstrating compliance with all Act 250 criteria under 10 V.S.A. § 6086(a), as required by 10 V.S.A. § 6081(a). We agree and therefore reverse.

¶ 2. The relevant procedural history is as follows. In 1998, the former owners of Killington Resort Village applied to the District One Environmental Commission (District Commission) for master plan review of the Killington Resort Village Master Development Plan (“Killington master plan”) pursuant to then-existing Environmental Board Rules 10(c) and 21 and Master Permit Policy and Procedure for Partial Findings of Fact (master permit policy). The master permit policy allowed for review of specific Act 250 criteria under § 6086(a) for complex development projects to streamline the review process and reduce costs to applicants.

¶ 3. In 1999, the District Commission issued partial findings of fact and conclusions of law regarding the Killington master plan. It made affirmative findings for five criteria and subcriteria under § 6086(a) and issued a “weather report” for each of the remaining criteria and subcriteria. No Act 250 land use master permit was issued. Pursuant to the master permit policy, the purpose of these partial findings was to assist the applicant and parties by providing notice of factual deficiencies in the application that resulted in a failure to achieve affirmative findings. The five affirmative findings were binding on all parties to the application for a period of five years.

¶ 4. The Vermont Natural Resources Council, a party to the master plan review proceedings, and the former owners of Killington Resort Village appealed some of the partial findings of fact and conclusions of law made by the District Commission to the Environmental Board. The Board determined that it had appellate jurisdiction to review only those criteria and subcriteria for which the District Commission had made affirmative findings, and therefore entered an order regarding a limited number of the § 6086(a) subcriteria. The Board's decision and order did not include an Act 250 land use permit.

¶ 5. The partial findings of fact and conclusions of law for the Killington master plan subsequently received two amendments prior to the administrative amendment at issue here. The first, an administrative amendment issued in March 2004 pursuant to Rule 34(D), authorized the subdivision of approximately 470 acres of Killington Resort Village into nine lots. The second, issued in August 2004, renewed the District Commission's 1999 partial findings of fact and conclusions of law for another five-year period. Neither amendment included an Act 250 land use permit.

¶ 6. At the end of 2007, co-applicants (successors in title to the original permittee) discussed with the District Commission's district coordinator options for obtaining a third amendment to the Killington master plan for another proposed subdivision. The district coordinator recommended applying for an administrative amendment pursuant to Rule 34(D), which allows a district coordinator “to amend a permit ... when ... necessary for record-keeping purposes or to provide authorization for minor revisions to permitted projects raising no likelihood of impacts under the criteria of [§ 6086(a) ].” 6 Code of Vt. Rules 12 004 060–15, available at http:// www. michie. com/ vermont. The district coordinator suggested Rule 34(D) because at that time over fifty different Act 250 permit series covered Killington Resort Village, the 1999 master plan review decision pertained to the entirety of Killington Resort Village, and no construction element was included in the proposed amendment.

¶ 7. Thus, in April 2008, co-applicants applied under Rule 34(D) for a third administrative amendment, despite not having an Act 250 land use permit. Co-applicants sought permission to realign the nine subdivided lots approved in the first administrative amendment into fifteen subdivided lots for transfer to SP Land for “future development purposes.” The application listed Mountainside as an adjoining property owner. The district coordinator, with approval of the District Commission, granted the administrative amendment in May 2008 pursuant to Rule 34(D). The amendment stated that no development of the parcels was approved by the amendment and referred to itself as a “permit.”

¶ 8. Mountainside then filed a motion with the District Commission to alter the third administrative amendment under Act 250 Rule 31(A).¹ Mountainside's motion questioned, among other things, the propriety of using Rule 34(D) to authorize the subdivision of 368 acres, arguing that the proposed subdivision likely involved more than minor record-keeping or minor revisions to an existing project. The District Commission denied Mountainside's motion to alter in October 2008.

¶ 9. Mountainside filed an appeal with the Environmental Court in November 2008. It submitted a list of fifteen questions for the court to address on appeal, the majority of which related to the fifteen-lot subdivision. The parties filed cross-motions for summary judgment. The Environmental Court granted summary judgment in favor of co-applicants on all fifteen questions, concluding that, under Rule 34(D), the fifteen-lot subdivision authorized by the third administrative amendment would cause no impact to any Act 250 criteria.

¶ 10. Mountainside subsequently filed a motion to alter and amend the Environmental Court's grant of summary judgment pursuant to Vermont Rule of Civil Procedure 59(e). It presented arguments similar to those presented here: absent an underlying Act 250 land use permit, no administrative amendment can issue under Rule 34(D), and co-applicants' fifteen-lot subdivision cannot be authorized without full review of all the criteria and subcriteria of § 6086(a).

¶ 11. The Environmental Court sought guidance from the Natural Resources Board Land Use Panel as to whether the absence of an Act 250 land use permit precludes issuing a Rule 34(D) administrative amendment to a master plan. The Land Use Panel's written response concluded that without an underlying permit there could be no administrative amendment under Rule 34(D) because there was nothing to amend under the process set out in that rule. The memorandum explained that the District Commission could issue Revised Master Plan Findings and Conclusions but these would not be issued under Rule 34, as Rule 34 addresses only permit amendments.

¶ 12. The Environmental Court nonetheless denied Mountainside's motion. The court reasoned that the third administrative amendment authorized only a reconfiguration of subdivision boundaries and did not authorize any development. The court further explained that a subdivision of Killington Resort Village had already been approved through the first administrative amendment issued in 2004 and, while that determination may have been “questionable,” it had become final because no party filed a timely challenge to it. The court concluded that the challenged third administrative amendment merely authorized a realignment of the previously approved subdivision of Killington Resort Village. This appeal by Mountainside followed.

¶ 13. Mountainside argues that the Environmental Court erred in its grant of summary judgment to co-applicants because: (1) administrative amendments under Rule 34(D) require an underlying Act 250 land use permit, and (2) co-applicants' fifteen-lot subdivision cannot be approved without demonstrating compliance with all Act 250 criteria under 10 V.S.A. § 6086(a) as required by 10 V.S.A. § 6081(a). We employ our typical de novo standard for questions of law.² In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42A, ¶ 7 n. 2, 188 Vt. 113, 998 A.2d 712 (“[W]here the outcome of the matter turns not on findings of fact, but on interpretation of a statutory term, and where we are not reviewing a decision by an agency charged with promulgating and interpreting its own rules, we employ the familiar de novo standard of review for matters of law.”)

¶ 14. As a preliminary matter, we address co-applicants' claim that Mountainside did not obtain party status for these issues and should have been precluded from raising them before the Environmental Court. They contend that Mountainside was granted party status only on the question of whether it should be joined as a co-applicant and point to the language of 10 V.S.A. § 8504(d)(1), which states that a person appealing an act or decision made by a district commission “may only appeal those issues under the criteria with respect to which the person was...