SP Land Co., LLC Golf Course PUD

STATE OF VERMONT
SUPERIOR COURT — ENVIRONMENTAL DIVISION

}
In re SP Land Co., LLC Golf Course }
PUD }
} Docket No. 74-5-10 Vtec
(Appeal from Killington Planning }
Commission determination) }
}

Decision on Cross-Motions for Summary Judgment

Appellant Stephen Durkee (“Appellant”) appeals to this Court a decision by
the Town of Killington (“Town”) Planning Commission (“Commission”) granting
what the Commission characterizes as “conceptual Master Plan Approval, with
partial affirmative findings” under the Town’s Planned Unit Development (“PUD”)
criteria for a proposed residential and commercial development on 229± acres in
the Killington Basin Section of the Ski Village Zoning District of the Town. The
application presents a conceptual overview of the future development of up to 328
independently occupied residential dwelling units and 32,600 square feet of
commercial and club facilities on land within and adjacent to the existing
Killington Resort Golf Course.
Applicant SP Land Company, LLC (“Applicant”) is represented in these
proceedings by co-counsel Timothy M. Eustace, Esq. and Heather R. Hammond,
Esq. Appellant is represented by Daniel C. Hershenson, Esq. The Town, an
interested person in this appeal, is represented by James F. Carroll, Esq.
Interested persons Trial Creek Condominium Homeowners Association, Inc. and
Pinnacle Condominium Association, Inc. are both represented by Theodore F.
Robare, Esq., and interested person Mountain Green Condominium Association,
Inc. is represented by Christopher J. Larson, Esq.
Pending before the Court are cross-motions for summary judgment filed by
Applicant, Appellant, and the Town. Each of these parties has filed for favorable
judgment on all twelve Questions posed in Appellant’s Statement of Questions,
and Applicant has additionally filed a motion seeking judgment in its favor

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contending that Appellant lacks standing to prosecute this appeal. None of the
remaining parties has filed a response to the pending motions.

Factual Background
For the sole purpose of putting the pending motions into context, we recite
the following facts, which we understand to be undisputed unless otherwise noted:
1. In 1980, a predecessor in title to the applicant now before us, then known
as the Sherburne Corporation, owned an approximately 400-acre area which today
constitutes the entirety of the Killington Basin Section of the Ski Village Zoning
District (“SVD District”) in the Town.
2. In 1980, the Sherburne Corporation submitted to the Commission a
development plan for the 400-acre parcel, seeking review and approval under the
PUD criteria in the Town of Killington, Vermont Zoning Regulations
(“Regulations”). Because of the magnitude and multiple components of the
proposed development, the then applicant and Town planning officials apparently
determined to begin a process of first reviewing the overall development plan on a
conceptual basis.1 After deliberations the Commission granted conceptual master
plan approval on July 1, 1980 for the Sherburne Corporation’s proposed
development within the 400-acre area.2
3. The procedure apparently agreed upon between the Town and the
Sherburne Corporation that began in 1980 provided that approval of a
conceptual master plan for the 400-acre Killington Basin Section would be
effective for four years and that no actual development would occur until
individual development projects contemplated by the conceptual master plan
underwent site plan review.

1
The Killington Ski Resort pre-existed Sherburne Corporation’s 1980 proposed master plan; its
1980 master plan proposed to expand and improve the facilities and development that already
existed near the base of the Killington Ski Resort.
2 The unapproved minutes of the July 1, 1980 meeting in which the Commission appears to

have granted approval state the following: “CONCLUSION: [PUD] approval be granted for the
Sherburne Corporation for the so-called ‘400 acre’ ski village . . . .” (See Horner Aff. ¶ 6(m), Ex.
13, filed Oct. 8, 2010.) The Town and Applicant provided a copy of the July 1, 1980
Commission minutes as Exhibit 13 to the Affidavit of Richard Horner, Killington Town Planner
and Zoning Administrator.

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4. Between 1980 and 2004, the Commission reviewed and approved
applications for updates to the approved 1980 conceptual master plan, as well
as for individual development projects planned within the 400-acre parcel.3
5. At no time prior to or since the first approval in 1980 of a conceptual
master plan for the 400-acre Killington Basin Section has the Town adopted
specific procedures or standards within its land use regulations for conceptual
master plan approval. The terms “conceptual” and “master plan” do not appear
in any applicable Town regulations.
6. On January 18, 2010, the current Applicant submitted to the Commission a
document titled “Application for Planned Unit Development Review & Master Plan
Approval: Golf Course PUD for the Ski Village District – Killington Basin Section.”
(See Applicant’s Mot. for Summ. J., Ex. 1, filed Oct. 8, 2010.) By this submission,
Applicant sought review of a proposal to develop property within a 229± acre
portion of the 400-acre Killington Basin Section of the SVD District. Applicant
identified this portion as the Golf Course PUD and suggested that the development
would include up to 328 independently occupied residential dwelling units and
32,600 square feet of commercial and club facilities. The existing Killington Resort
Golf Course is located within this 229± acres; the proposed development is
identified on Maps 1–8 that are attached to Applicant’s application.
7. The 229± acres on which Applicant proposes new development are currently
owned by entities affiliated with Applicant: MTB Killington, LLC; AMSC Killington,
LLC; and SP II Resort LLC; these latter entities hold title to the subject acreage as
tenants in common.
8. Some time after receiving Applicant’s submission, the Commission issued a
document entitled “Killington Planning Commission Findings of Fact, Conclusions
of Law and Order Re: Golf Course Planned United Development and Master Plan
Review within the Ski Village District Killington Basin Section under Section 505 of
the Town of Killington Zoning Regulations.” The document states that the
3
The Town, Applicant, and Appellant disagree about the extent to which the Commission,
between 1980 and today, has issued conceptual master plan approvals, as compared to full
PUD approvals, for areas within the 400-acre Killington Basin Section. (See Joint Statement of
Undisputed Facts of Applicant and Town ¶¶ 1, 3–4, filed Oct. 8, 2010; Stearns Aff. ¶ 10, filed
Dec. 1, 2010 (Affidavit of Attorney David Stearns detailing the result of his search through the
Town Planning Commission records since 1980).)

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“Commission grants conceptual Master Plan Approval, with partial affirmative
findings under the PUD criteria set forth in [Regulations] Section 505 for the Golf
Course PUD.” The document is signed by five Commission members with
signatures dated April 7, 2010.4
9. On May 10, 2010, Appellant filed a timely appeal with this Court.5

Discussion
This de novo appeal arises from the Commission’s issuance of its April 7,
2010 Findings of Fact, Conclusions of Law and Order (“Commission Order”)6
granting Applicant “conceptual Master Plan Approval” and “partial affirmative
findings” for its proposed residential and commercial development on property
within a 229± acre area containing the existing Killington Resort Golf Course.
Applicant collectively refers to the 229± acres as the Golf Course PUD and has
proposed what it characterizes as a conceptual master plan for the future
construction of substantial and multifaceted developments that would include up
to 328 independently occupied residential dwelling units and 32,600 square feet of
commercial and club facilities. Applicant has sought review and approval of its
proposal under the PUD criteria listed in Regulations § 505.
Appellant’s twelve Questions in his Statement of Questions raise three
principal issues: (1) whether the Commission has authority to issue “conceptual
Master Plan Approval” for the Golf Course PUD proposal submitted by Applicant;
(2) whether the Town’s Regulations addressing PUD approval comply with the state
statutory provisions governing municipal land use planning and development; and
(3) if so, whether Applicant’s proposal complies with the requirements of the
Regulations. (See Statement of Questions, filed May 24, 2010.)
Currently pending before the Court are cross-motions for summary
judgment filed by Applicant, Appellant, and the Town. These motions address all

4 The Court erroneously referred to the date on this document as June 16, 2010 in its

November 30, 2010 Entry Order issued in connection with this appeal. June 16 is the date the
document was filed with the Court, but the order was signed by Commission members on April
7, 2010.
5 Friday, May 7, 2010, would have been the last day to file a timely appeal. However, since all

Vermont courts were closed that day, due to a furlough imposed for budgetary purposes,
Appellant’s filing on the next business day (Monday, May 10, 2010) was deemed timely.
6 A copy of the Commission Order is attached as Exhibit C to the parties’ joint Stipulated

Statement of Undisputed Facts.

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twelve legal issues raised in Appellant’s Statement of Questions, summarized
above. Applicant also challenges Appellant’s standing as an “interested person” in
these proceedings, and both Applicant and the Town raise the argument that there
is no appealable decision before the Court. We first address the latter two
arguments, since a determination that Appellant lacks standing, or that the
Commission Order is not appealable, would render moot the substantive legal
questions raised by Appellant in his Statement of Questions.
Before the Court can issue summary judgment in favor of any one of the
moving parties on any of the above issues, it must examine the record before it
and conclude both “that there is no genuine issue as to any material fact” and that
one or more of the parties “is entitled to judgment as a matter of law.” V.R.C.P.
56(c)(3). A court can issue summary judgment against a moving party when there
are no disputed material facts and the non-moving party is entitled to favorable
judgment. See V.R.C.P. 56(c)(3) (“Summary judgment when appropriate may be
rendered against the moving party”); In re Hildebrand, 2007 VT 5, ¶¶ 8–9, 181 Vt.
568 (mem.).
Additionally, when considering cross-motions for summary judgment, the
Court must give each party “the benefit of all reasonable doubts and inferences
when the opposing party’s motion is being judged.” City of Burlington v. Fairpoint
Commc’ns, 2009 VT 59, ¶ 5, 186 Vt. 332 (citing Toys, Inc. v. F.M. Burlington Co.,
155 Vt. 44, 48 (1990)). A Court determination that either there is a genuine
dispute as to a material fact, or that the applicable law does not entitle any party
to judgment as a matter of law, requires that the pending motions be denied and
the case proceeds to trial. We address the parties’ motions with these standards
in mind.

I. Appellant’s Standing
Applicant has submitted two motions for summary judgment. In its first
motion (filed on August 20, 2010), Applicant argues that Appellant has no
standing to bring the present appeal because he does not qualify as an “interested
person” under the requirements in 24 V.S.A. § 4465(b). While Applicant and
Appellant assert slightly different facts in relation to whether Appellant has
standing, there are no material facts in dispute preventing us from rendering a

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determination on Appellant’s standing at the summary judgment stage. For the
reasons detailed below, we conclude that Appellant has standing as an interested
person in these proceedings.
Section 4465(b) lists alternative classifications under which a party can
qualify as an “interested person” and, via the provisions in 24 V.S.A. § 4471, be
entitled to appeal a decision of an appropriate municipal land use panel. The
Commission is such a panel. 24 V.S.A. § 4303(3). Appellant responds that he is
able to meet the three requirements for classification as an interested person
under § 4465(b)(3): “owning or occupying property in the immediate neighborhood”
of the property subject to the municipal decision, “demonstrat[ing] a physical or
environmental impact on [his] interest under the criteria reviewed,” and “alleg[ing]
that the decision . . . if confirmed, will not be in accord with the policies, purposes,
or terms of the” applicable municipal plan or regulations.
The parties debate whether Appellant owns or occupies property in the same
neighborhood as that which Applicant proposes to develop. Appellant represents
that he owns three commercial and rental properties that are approximately a half-
mile “as the crow flies” from the Golf Course PUD and that the proposed
development will be visible from one of these properties. He also represents that
the proposed development, particularly because it is significant, will increase the
traffic on the main road that joins his properties to the proposed development; that
the neighborhood surrounding Applicant’s proposed development and his own
properties is one neighborhood focused principally on the ski resort; and that the
increased traffic will impact his use of his properties. Applicant argues, to the
contrary, that the driving distance between Appellant’s properties and the areas
proposed for development within the Golf Course PUD is considerable, 1.6 or more
miles; that there is little or no visibility between the two sets of properties; and
that dense development separates them.
Even when viewing the facts in a light most favorable to Applicant we
conclude that, given the significance of Applicant’s proposed development, the
uniformity of the neighborhood surrounding the two sets of properties, and the
close proximity of the properties, Appellant does “own[] or occupy[] property in the
immediate neighborhood” of the proposed development, thereby satisfying the first

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requirement of § 4303(3). Cf. In re Kaminksy House Replacement Application, No.
269-11-06 Vtec, slip op. at 8 (Vt. Envtl. Ct. Mar. 28, 2007) (Wright, J.) (concluding
that an appellant met the requirements of § 4465(b)(3) partially because of the
significant size and design of the proposed project and despite the lack of visibility
between the appellant’s property and the project); Bostwick Road Two-Lot
Subdivision, No. 211-10-05 Vtec, slip op. at 4–5 (Vt. Envtl. Ct. Feb. 24, 2006)
(Durkin, J.), aff’d, No. 2006-128 (Vt. Jan. 2007) (unpublished mem.) (concluding
that an appellant did not have standing under § 4465(b)(3) partially because the
appellant’s residential property was distinct in character and geographically
separated from the tourist-oriented area where the proposed development, a
vineyard, was to be located and because the appellant did not convince the Court
the proposed vineyard would create enough traffic to affect the appellant).
Having found that Appellant meets the first requirement under § 4465(b)(3),
and because no party debates that Appellant meets the third statutory
requirement,7 whether Appellant has standing turns, ultimately, on whether he
can “demonstrate a physical or environmental impact on [his] interest under the
criteria reviewed.” Whether Appellant’s interest can be said to be impacted by the
Commission Order depends on the character of the Commission’s determination
and on an analysis of whether the Commission’s affirmative findings and
conclusions of law create an “injury in fact to a protected legal interest or the
threat of an injury in fact” to Appellant.8 In re Boocock, 150 Vt. 422, 424 (1988);
see Riverview Mews, LLC v. Richard Electric, No. 215-11-07 Vtec, slip op. at 5 (Vt.
Envtl. Ct. Apr. 7, 2008) (Wright, J.) (discussing § 4465(b)(3)’s incorporation of the
requirements for standing in civil cases and comparing the injury-in-fact
requirement with the discussion of impact in § 4465(b)(3)). To determine what
impact, if any, could be suffered by Appellant, we review the specific components
of the Commission Order: its affirmative findings and conclusions of law.
In their motions for summary judgment, both Applicant and the Town argue
that the Commission’s affirmative findings and conclusions of law are not final and

7 Appellant’s Statement of Questions alleges that the Commission Order violates the Town’s
Regulations or is ultra vires.
8 In an Entry Order of November 30, 2010 the Court provided all parties the opportunity to

provide supplemental memoranda discussing the character of the Commission Order.

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that those appealed by Appellant do not have ramifications that could injure
Appellant. While we find this argument compelling, it is contradicted by the very
text and title of Applicant’s application and the Commission Order. Applicant
presented an application that details how its proposed development complies with
the Town’s PUD criteria and, by its title, sought “Planned Unit Development
Review & Master Plan Approval.” (See Stipulated Statement of Undisputed Facts,
Ex. A at 1, 3–8, filed Aug. 23, 2010.) The Commission, in its decision partially
titled “Findings of Fact, Conclusions of Law and Order,” granted Applicant’s
request for partial affirmative findings and legal conclusions under some, although
not all, of the criteria governing PUD approval. See Commission Order 16, ¶ 11.
These factual findings and legal conclusions include determinations, appealed by
Appellant, that Applicant’s application and various components of the proposed
Golf Course PUD conform to some of the regulatory requirements for site plan
submission, provision of privacy for residents, roadways and parking, water and
sewer facilities, inventory and preservation of unique natural features, and
landscaping and screening. See id. 14–16, ¶¶ B(1)–(11); (Statement of Questions).
While these findings do not complete the municipal review of Applicant’s master
plan or individual development projects, they constitute a global approval to the
conceptual master plan and material affirmative findings under many substantive
provisions for PUD approval.
While the Commission Order states that some of the appealed affirmative
findings and legal conclusions are subject to further review, we conclude that the
determinations rendered by the Commission create enough finality to pose a threat
of injury or impact to Appellant and to his use of his nearby properties,
particularly in regard to aesthetics and increases in traffic. We reach this
conclusion even when viewing the facts in a light most favorable to Applicant.
Thus, we conclude that Appellant has standing to prosecute this appeal, and we
DENY Applicant’s motion for summary judgment on standing.

II. Appealability of the Commission Order
Both the Town and Applicant also assert that there is no decision here for
Appellant to appeal because the Commission’s review was conceptual, does not
permit any development or construction, and does not contain factual findings or

8
legal conclusions that prejudice Appellant. Specifically, the Town claims that the
Commission Order is not a final administrative decision and thus not subject to
appeal under 24 V.S.A. § 4471 and 3 V.S.A. § 815, a provision of the Vermont
Administrative Procedures Act (“APA”) allowing appeal of “final decision[s].”9 The
Town supports its argument with reference to the following language from the
Commission Order: “This conceptual Master Plan approval, including all findings
and conclusions contained herein, does not preclude or prejudice any interested
parties from raising issues of fact or concerns about specific impacts related to the
subsequent PUD and/or Site Plan Review applications for development within the
Golf Course PUD.” Commission Order 16, ¶ E.
To determine whether the Commission Order is an appealable decision, we
turn first to the statute granting a right of appeal from municipal panel decisions
and then to the structure and content of the Commission Order itself. When
interpreting statutes, our goal must be to give effect to the intent of the
Legislature. See Town of Killington v. State, 172 Vt. 182, 188 (2001). A search for
intent begins with the statute’s plain language, and we are directed to turn to
other methods of determining legislative intent only after concluding that the
ordinary meaning of the statutory language makes the statute ineffective or leads
to irrational results. Id. at 189.
Section 4471 of Title 24 states that parties who can show they meet the
standing and participation requirements10 codified in 24 V.S.A. § 4465 and
§ 4471(a) are granted the right to appeal “a decision rendered in [a municipal
regulatory proceeding authorized under Title 24] by an appropriate municipal

9 In municipal land use appeals, the question of finality arises most commonly not as it does
here but rather in the context of whether a municipal decision includes any determinations
that are final such that they become binding when the decision is not appealed. See 24 V.S.A.
§ 4472(d) (stating that failure to timely appeal a municipal body’s decision will render that
decision binding). In In re Simpson Development Corporation (Appeal of Preliminary Plat and
PRD Determinations), for instance, this Court examined individual determinations made
during a municipality’s preliminary review of a subdivision plan, asking whether appellants
could challenge these determinations after a subsequent final review. No. 54-3-05 Vtec, slip
op. at 1, 3–4, 13–14 (Vt. Envtl. Ct. June 27, 2006) (Durkin, J.) (concluding that one of the
determinations made in the preliminary review decision was final and thus had to be appealed
at the preliminary review stage to avoid its becoming binding); see also Perras & Sons, Inc.
Preliminary Plat, No. 29-2-06, slip op. at 8 (Vt. Envtl. Ct. Oct. 18, 2006) (Durkin, J.)
(concluding that one of the determinations made during review of a subdivision sketch plan
prior to preliminary review was final if not appealed).
10 No party disputes that Appellant meets the participation requirements in 24 V.S.A. § 4471.

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panel to the environmental division.” 24 V.S.A. § 4471. In In re Appeal of Miller,
our Supreme Court interpreted similar language in the former § 4471, allowing
appeal from “a decision of a board of adjustment or a development review board to
the environmental court,” to authorize appeal “for any ‘decision of the board of
adjustment,’ . . . not only for decisions granting or denying permits.” 170 Vt. 64,
76 n.5 (1999) (emphasis added); see also In re Carroll, 2007 VT 19, ¶¶ 13, 16, 181
Vt. 383. Applying this precedent, we conclude that the pending appeal is not
premature simply because the Commission Order is not the final decision
necessary before construction of the proposed development can occur.
The Town also argues that this appeal is prohibited by the limit imposed
upon appeals of administrative decisions under the APA; that is, only a “final
decision” is subject to appeal under the APA. See 3 V.S.A. § 815. In support, the
Town points to language in § 4471(a) stating that appeals from municipal panels
“shall be taken in such manner as the supreme court may by rule provide for
appeals of state agencies” under the APA. However, the Town provides no
convincing authority to support the conclusion that the APA applies here in such a
manner as to restrict a party’s right to appeal only “final” land use
determinations.11 Section 4471 does not have such restrictive language; it in fact
has the broader phrase of “a decision.”
Although “a decision” is not defined by the Vermont Planning and
Development Act, 24 V.S.A. §§ 4301–4498, we find no authority for limiting the
interpretation of an appealable decision to only those that render the final
approval for a development project; we conclude that the ordinary meaning of this
statutory term (“a decision”), particularly in the context of municipal land use
panel determinations, must include the type of formal written determination that
is now before this Court. The Commission Order includes signatures of
Commission members dated April 7, 2010 and sections with the following official
headings: “Findings of Fact,” “Conclusions of Law,” and “Order.” Commission

11Indeed, one of the cases cited by the Town is In re Maple Tree Place, in which our Supreme
Court stated the Vermont “APA does not apply to local boards or commissions” and determined
that the provisions of the Vermont APA are not incorporated into appeals of municipal bodies
simply by § 4471’s general reference to procedural rules relating to them. 156 Vt. 494, 497–98
(1991).

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Order 3, 12, 14. Additionally, the document grants Applicant substantive legal
entitlements. While the Commission makes it explicit that it is not granting what
it calls “final PUD approval,” and that Applicant must submit additional
applications and receive approvals before it can begin any new construction within
the Golf Course PUD, the Commission describes Applicant’s proposal as follows:
The Applicant is seeking approval of the conceptual master plan for
the Golf Course PUD. In addition, the Applicant is seeking partial
findings under the PUD criteria in Section 505 of the [Regulations], in
order to gain affirmative entitlements that will enable an applicant to
proceed with certainty to PUD and/or Site Plan Review . . . and which
conditions would apply to subsequent PUD and/or Site Plan Review
for phases of the Golf Course PUD development.”

Commission Order 2 (emphasis added).
The document states that “the Commission hereby issues its Findings of
Fact, Conclusions of Law and Order under [§ 505] for conceptual master plan
approval and partial affirmative findings under the PUD criteria” and then
proceeds into Findings of Fact addressing the compliance of Applicant’s proposal
with each of the criteria in Regulations § 505. Id. 3–11. The document concludes
with an Order section, whereby the Commission “grants a four year PUD approval
expiring April 7, 2014 for the Master Plan and these partial affirmative findings as
to some of the PUD criteria.” Id. 15, ¶ B(6).
Based on the structure and content of the Commission Order, it appears
beyond dispute to this Court that it is an appealable decision. Whether the
Commission Order was rendered in a proceeding authorized by the statute is
discussed in more detail below, in Section III, but that analysis does not affect the
act of the Commission in rendering factual findings, legal conclusions, and an
order; such actions constitute a decision.
In addition to the Town’s argument that the Commission Order is not a final
decision and therefore not appealable, Applicant supplements the Town’s
argument by contending that Appellant’s appeal is not ripe for review because the
Commission did not render affirmative findings and legal conclusions addressing
the entirely of each PUD criteria. But § 4471 is not as limiting as Applicant
suggests, and the very language of the Commission Order contradicts Applicant’s
argument that no substantive findings or conclusions have been rendered.

11
 For all these reasons, we conclude that Appellant is authorized to appeal the
Commission Order and present his challenges to the factual findings, legal
conclusions, and order expressed in that decision. We DENY the Town and
Applicant summary judgment to the extent they have sought dismissal of this
appeal for non-finality of the Commission Order.

III. Commission’s Authority to Issue Conceptual PUD Master Plan Approval
Having determined that the Commission Order is an appealable decision
that could impact or injure Appellant, we turn now to the substantive legal issues
raised in this appeal. The primary legal issue of whether the Commission had
authority to issue its Order is one on which the Town, Applicant, and Appellant
seek summary judgment.12 We find that there are no material facts in dispute
regarding this issue and, as discussed below, our analysis reveals that there is
presently no authorizing language in the relevant municipal regulations giving the
Commission authority to issue conceptual master plan approval for a PUD.
The Vermont legislature has adopted the “Dillon’s rule” scheme for the grant
of municipal authority; that is, municipalities in Vermont have “only those powers
and functions specifically authorized by the legislature, and such additional
functions as may be incident, subordinate or necessary to the exercise thereof.” In
re Petition of Ball Mountain Dam Hydroelectric Project, 154 Vt. 189, 192 (1990)
(quoting Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 486
(1977)). Our Supreme Court has stated that if there is “any fair, reasonable,
substantial doubt” concerning whether authority in the municipality exists, the
question must be resolved in the negative. Id. at 192 (quoting Valcour v. Vill. of
Morrisville, 104 Vt. 119, 130 (1932)). Additionally, any municipal regulation
adopted pursuant to a statutory grant of power must, in order to be constitutional,
include specific standards that prevent the delegation of “standardless discretion”
to a municipal panel. In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶ 17, 185 Vt.
201 (citing In re Handy, 171 Vt. 336, 348–49 (2000)).

12The question of whether the Commission has such authority is preserved for our review by
Appellant in Questions 1–3, 11, and 12 of his Statement of Questions. (See Statement of
Questions ¶¶ 1–3, 11–12, filed May 24, 2010.)

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 In its motion for summary judgment, the Town argues that the Commission
has authority to review the conceptual master plan submitted by Applicant and
issue a decision granting approval of such plan under 24 V.S.A. § 4417, which
allows and establishes the minimum provisions for the regulation of PUDs, and 24
V.S.A. § 4410, which grants a municipality the authority to employ “any other
regulatory tools or methods” not listed within 24 V.S.A. §§ 4410–4427. The Town
maintains that Regulations § 505 provides for PUD review and expressly permits
the Commission to “modify [its Regulations] in accordance with 24 V.S.A. § 4417
subject to the . . . standards and conditions” for PUD permitting listed in the
Regulations. (Town’s Mot. for Summ. J. 20, filed Oct. 8, 2010; see Regulations
§ 505, 71.) The Town further argues that § 4417 does not limit the Commission
from “invoking its implied authority to consider” conceptual master plan
applications and that this authority is “incident and subordinate” to its authority
to review PUD applications. (Town’s Mot. 20; Town’s Memo. in Opp’n to
Appellant’s Mot. for Summ. J. 5, filed Dec. 1, 2010.)
Additionally, the Town submits that its 30 year history of “conceptually
considering PUD master plans” is an important planning tool that provides the
Commission with a comprehensive overview of proposed development within the
approximately 400-acre Killington Basin area, and that such historical review is
allowed before the Town considers specific project applications. The Town claims
that the Commission Order gives “no vested rights to land development” to
Applicant, does not authorize any development within the Golf Course PUD, and
does not provide for final PUD approval. (Town’s Memo. in Opp’n 4.)
Applicant argues, in its second motion for summary judgment, that the
Commission’s authority to issue conceptual master plan approval for a PUD comes
from the “unique and long-standing history of development” in the 400-acre area
containing the proposed Golf Course PUD. (Applicant’s Second Mot. 5–7.)13

13 Applicant and the Town state, and Appellant agrees, that this history involves the
submission by Applicant’s predecessor in title of an initial “conceptual master plan” for the
400-acre area and approval of the plan by the Commission under the Regulations’ PUD
criteria. However, the parties disagree about the extent to which the Commission, between
1980 and today, has issued conceptual master plan approvals, as compared to full PUD
approvals, for the 400-acre area. (See Joint Statement of Undisputed Facts of Applicant and
Town ¶¶ 1, 3–4, filed Oct. 8, 2010; Stearns Aff. ¶ 10, filed Dec. 1, 2010.)

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Applicant posits that a decision to review conceptual master plans is within the
discretion of the Town in interpreting its own Regulations and that the
Commission’s authority to review conceptual master plans is implicit and not
prohibited by the absence of a specific authorization.
Our analysis is focused upon locating some authority, specific or implicit,
for the review that the Commission conducted. In so doing, we do not wish to
detract from the important, voluntary processes that Applicant and its
predecessors have engaged in to make neighbors and Town officials aware of the
short- and long-range plans it may have for this significant resort area. By
disclosing its overall plans in “five workshops, . . . numerous home owner
association meetings, and . . . Open House[s] for the Killington community,”
Applicant has provided an important voluntary disclosure to its community.
(Stipulated Statement of Undisputed Facts, Ex. A 3, ¶ 2, filed Aug. 23, 2010.) That
this practice derives from a thirty year history by Applicant and its predecessors in
title and management brings even more significance to these voluntary
disclosures. But to rely upon this historical process for the authority to render
quasi-judicial land use determinations would cause us to acknowledge authority
where none exists.
Our municipal planning and development statutes provide that a
municipality that has elected to adopt land use regulations or bylaws is
empowered and encouraged to adopt PUD-specific regulations. 24 V.S.A. § 4417
(“Any municipality adopting a bylaw should provide for planned unit development .
. . .”); see also 24 V.S.A. § 4303(26) (“‘Should’ means that an activity is encouraged
but not mandated.”). A reading of 24 V.S.A. § 4410 shows that a municipality is
also empowered to “define and regulate land development in any manner that the
municipality establishes in its bylaws” and “may utilize any or all of the tools
provided in [24 V.S.A. §§ 4410–4427] and any other regulatory tools or methods
not specifically listed.”
Although there is no explicit authorization in Title 24 for municipalities to
incorporate a preliminary review process for PUDs, as there is for subdivision
review under 24 V.S.A. § 4418(2)(B), the grant of authority evidenced by the
language of § 4410 and § 4417 is broad enough to include such action, as long as

14
it complies with these enabling statutes. Section 4417 lists minimum provisions
for PUD bylaws, two of which are “[t]he development review process to be used for
review of [PUDs]” and “[s]tandards for the review of proposed [PUDs].” § 4417(c).
When coupled with the broad grant of authority found in § 4410—that a
municipality is empowered to “define and regulate land development in any
manner that the municipality establishes in its bylaws”—it seems apparent a
municipality has the flexibility to create a multi-stage review process for PUD
approval.14
Thus, on Question 11 of Appellant’s Statement of Questions, which asks
“[w]hether 24 V.S.A. Section 4417 or any other chapter or subchapter of 24 V.S.A.
Section 4401, et seq. authorizes a municipal planning commission to grant
‘conceptual master plan’ approvals,” we GRANT summary judgment in favor of
Applicant and the Town and DENY summary judgment to Appellant. Our search
now turns to whether the Town has established a PUD review procedure that
includes conceptual master plan approval; our following analysis addresses the
legal issues raised in Questions 1–3 and 12 of Appellant’s Statement of Questions.
We first note that PUDs represent a deviation from conventional zoning
regulations; they allow for flexibility from the rigidity of specific zoning provisions
such as setbacks, minimum individual lot sizes, and district restrictions on uses.
See 24 V.S.A. § 4417(a); In re Pierce Subdivision Application, 2008 VT 100, ¶ 21,
184 Vt. 365 (discussing planned residential developments, which are regulatory
tools similar to PUDs, and stating that the “Legislature authorized PRDs to
‘encourage flexibility of design and development of land in such a manner as to
promote the most appropriate use of land,’” citing the provisions previously found

14 Appellant argues that 24 V.S.A. § 4410 and § 4417 must be read as alternates, such that
§ 4417 is a more specific provision negating the applicability of § 4410’s language as to how a
municipality can regulate PUDs. We disagree that the language of § 4410 must be ignored.
Statutory provisions addressing the same subject matter “must be read together and construed
as parts of a statutory system.” Rutz v. Essex Junction Prudential Comm., 142 Vt. 400, 405
(1983). It is only when two statutory provisions conflict that a more specific one controls over a
more general one. See id. Here, § 4417 addresses a municipality’s regulation of PUDs whereas
§ 4410 addresses a municipality’s regulation of land development generally, speaking to the
flexibility a municipality has in this latter regard. Because the provisions of § 4417 do not
conflict with § 4410, particularly when made applicable to the proceedings now before this
Court, the former can be read as part of a statutory system that incorporates the flexibility
discussed in the latter.

15
in 24 V.S.A. § 4407(3), and now found, as amended, in 24 V.S.A. § 4417(a)). By
allowing for deviations from conventional zoning, a community that has adopted
PUD review provisions into its zoning regulations can incorporate unique building
designs, can cluster buildings and uses, and can provide for the more efficient use
of community resources and the preservation of open spaces and agricultural
lands. Id. A community without PUD review authority may find such flexibility
impossible because of its conventional zoning provisions.
Thus, when a municipality decides that it will provide for review of PUDs, it
is establishing an alternate procedure for reviewing and approving proposed land
development that does not conform to its conventional zoning regulations. This
unique characteristic makes it even more important, dare we say essential, for
PUD provisions to give prior notice of the specific procedures that will be employed
when considering these plans. Thus, we conclude that when a community decides
to administer PUD review, it must specifically establish and give prior notice,
through its regulations, of the procedures that it will use to administer that review.
We now turn our review to the specific PUD review provisions in the
Regulations. When interpreting municipal regulations we are directed to apply the
same rules of construction as for statutes: we look first at the ordinary meaning of
the regulation’s plain language to give effect to the intent of the legislating body.
See In re Stowe Club Highlands, 164 Vt. 272, 279–80 (1995); Town of Killington v.
State, 172 Vt. 182, 188–89 (2001). The plain wording of both § 4410 and § 4417
makes clear that a multi-stage review process for PUD approval, to be valid, must
be provided for in either a town’s bylaws or officially adopted supplemental rules.
The grant of authority in § 4410 is for a municipality to regulate development “in
any manner that the municipality establishes in its bylaws.” (emphasis added).
We find no authority to simply create the process from whole cloth as an
individual application is being reviewed.
Section 4417 lists minimum provisions for “[PUD] development bylaws
adopted pursuant to this section” and provides examples of additional provisions a
municipality may choose to incorporate into its PUD bylaws. (emphasis added).
Bylaw is a defined term—“municipal regulations applicable to land development
adopted under the authority of [the Vermont Planning and Development Act]”—

16
and any bylaws or amendments must be prepared and adopted pursuant to the
process detailed in 24 V.S.A. §§ 4441–4442. 24 V.S.A. § 4303(4). Section 4417
also allows a municipal body to “prescribe . . . rules and regulations to
supplement” its PUD bylaws, but these supplemental rules and regulations only
become lawful once they have been formally adopted, after a public hearing. 24
V.S.A. § 4417(g).
Neither the Town nor Applicant have cited to any wording in the
Regulations, or provided evidence of any duly adopted supplemental rules, that
discuss conceptual master plan approval for a PUD proposal; the Town and
Applicant’s filings reveal no reference to set standards for a multi-stage review
process. The terms “master plan” and “conceptual master plan” do not appear
within § 505 or elsewhere in the Regulations.
The power to issue decisions granting conceptual plan approval cannot be
implied from language in the Regulations; that power, if it exists, must be explicitly
enacted, as so directed by the enabling statutes. If the Regulations were read to
allow the Commission to employ a process for the issuance of conceptual master
plan approval without codification of its procedures, the Commission would be
empowered with the very “standardless discretion” that our Supreme Court has
already rejected. Appeal of JAM Golf, 2008 VT 110, ¶ 17 (wherein the Court
announced that “all ordinances are subject to the limits of our Constitution, and
we will not enforce laws that are vague or those that delegate standardless
discretion to town zoning boards,” citing Handy, 171 Vt. at 348–49).15 The
Regulations include no description of a “conceptual master plan,” what an
applicant is required to submit to apply for conceptual master plan review, what a
concerned neighbor may offer in challenging the proposed master plan, what the
Commission is to consider when reviewing a conceptual master plan, and what the
import is of a decision approving a conceptual master plan for a PUD. We decline

15
We cite to Appeal of JAM Golf with caution, since that opinion has caused some
consternation for municipal land use regulators. But in doing to, we specifically reject
Applicant’s assertion that the protections announced in Appeal of JAM Golf only flow in favor of
a permit applicant. All statutory parties to land use proceedings are constitutionally entitled to
prior notice of the procedures that will be employed when a proposed land development plan is
reviewed for permit approval.

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to give the Regulations a reading that would be unconstitutional and potentially
result in invalidation of Regulations § 505.
We have also found no precedent to support the argument that an
administrative practice, however long it has been employed and remained
unchallenged, can result in implicit authority for municipal review and approval.
Applicant cites to In re Champlain College Maple Street Dormitory in which this
Court gave deference to the City of Burlington’s consistently-applied interpretation
of the term “unit” in its bylaws to mean “rooming unit” for dormitories. 2009 VT
55, ¶ 10, 186 Vt. 313. Here, there is no term or text in the Regulations for the
Commission to have consistently interpreted; there is an absence of language to
interpret. Thus, Applicant appears to argue that an ultra vires act, repeated over
time, becomes a lawful practice. We find no precedent to support this argument,
and ultimately we find no authority in the Regulations for the Commission to issue
conceptual master plan approvals for a PUD. Thus we GRANT summary judgment
in favor of Appellant on Questions 1–3 and 12 from Appellant’s Statement of
Questions and DENY the Town and Applicant’s motions on these Questions. In
effect, this renders the Commission Order NULL and VOID and requires that we
DISMISS the remainder of this appeal and the party’s motions for lack of a
justiciable issue.
The conclusion this Court reaches does not speak to whether the
Commission’s process of considering conceptual master plans for PUDs is
valuable. We note above (on page 14) the value of that voluntary community
endeavor. Instead, our conclusion means that if the Town wishes to undertake
this process it must either limit the process to informational discussions that do
not create legal entitlements or codify the process in its Regulations or officially-
adopted supplemental rules, with standards sufficient to satisfy a constitutional
challenge. This Court is not, as the Town fears, “forcing a municipality to refuse”
to consider a PUD application “on a ‘conceptual’ basis where [the municipal panel]
is invited to do so by a compliant applicant.” (See Town’s Mot. 20.) We are merely
stating that the Town must, in effect, make public the Commission’s procedures
and standards when it intends to render even partial factual findings and legal
conclusions in order to ensure consistent and fair decision-making, as well as

18
notice to all interested parties of what an applicant must present to the
Commission to gain approval. See Handy, 171 Vt. at 346–47 (describing
consistent decision making and notice to landowners as the two most important
rationales for finding standardless delegation in administrative adjudication
unconstitutional).

Conclusion
As more fully discussed above, we find that there presently exists no
authority for the Planning Commission to issue a decision which contains partial
factual findings, legal conclusions, and approval of a conceptual PUD master plan.
Consequently, the Killington Planning Commission Findings of Fact, Conclusions
of Law and Order of April 7, 2010 is NULL and VOID and of no further force or
effect.
Applicant’s motion for summary judgment on Appellant’s standing is
DENIED. We GRANT summary judgment in favor of Applicant and the Town on
Question 11 (by which Appellant challenged the statutory authority of a
municipality to enact conceptual master plan approval provisions as part of its
land use regulations) and GRANT Appellant summary judgment on Questions 1,
2, 3, and 12 from Appellant’s Statement of Questions (since the Town has not yet
adopted specific procedures or standards for conceptual master plan approval
within its PUD review provisions). In so doing, we DENY the competing motions
filed by the opposing parties.
The remainder of this appeal is DIMISSED for lack of a justiciable issue. In
so doing, we regard as moot the remainder of Applicant’s, the Town’s, and
Appellant’s motions.
A Judgment Order accompanies this Decision. This completes the current
proceedings before this Court concerning the pending application.

Done at Newfane, Vermont, this 27th day of January 2011.

___________________________________
Thomas S. Durkin, Judge

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