VSC rules for local resort in Act 250 case

The Vermont Supreme Court upheld an Environmental Court ruling last week that will allow the Mountain Top Inn and Resort to continue renting out the private homes, the owners of which have reached an agreement with the resort, but the attorney representing a neighbor who challenged the decision said the decision could be bad for those living near resorts all over Vermont.

The decision Friday was a close one, with three justices affirming the decision of the Environmental Court and two justices dissenting.

Bristol attorney James Dumont, who represented Katherine Hall, a neighbor of the resort who had asked the courts to rule that Mountain Top Inn in Chittenden needed an amended Act 250 permit, said the particular problem Hall was dealing with could be fixed with a legislative change.

“Resorts, just doing what MTI (Mountain Top Inn) has done, signing agreements with private landowners to use their home to expand their resort. There’s a simple fix for that. When the Legislature decides to change or update Act 250, all they have to do is take the Natural Resources Board rule, that the court said wasn’t supported by the statute, and just add it to the statute,” he said.

The rule, Rule 2 for the Act 250 Commission which falls under authority of the Natural Resources Board, defines what constitutes a “person,” under Vermont law regarding the land-use permitting body.

Act 250 is intended to protect Vermont’s land and the environment from the unintended consequences of development by requiring that subdivision of land and substantive development of property be permitted by the Act 250 Commission.

Dumont said the problems caused for homeowners like Hall were increases in occupancy, septic waste, traffic, noise, as well as other issues, without an updated permit.

“It sort of makes a mockery of Act 250,” he said.

Dumont said he and Hall would ask legislators to amend Act 250 by making the change to Rule 2. The goal is to prevent resorts from being able to expand their reach through the use of private property rentals without updating their Act 250 permit.

The Mountain Top Inn has an agreement with about 25 property owners under which it manages short-term rentals. Those renting properties check in and out through the resort and are considered resort guests.

The managers of Mountain Top sought to clarify their permit status and asked the Act 250 commission, under the Natural Resources Board, to issue a binding opinion. In February 2017, the Act 250 district commissioner concluded the rental properties expanded the capacity and use of the resort and required an updated Act 250 permit.

A month later, the Mountain Top appealed the decision. Hall, who lives across from the Mountain Top’s main parking lot and who considered herself an “aggrieved” person filed a cross-appeal.

Hall agreed, through Dumont, the resort needed an amended Act 250 permit while the Mountain Top, through attorney Christopher Roy, denied the resort and the rental properties were a “person” under Act 250’s Rule 2.

Roy said the definition of those “affiliated with each other for profit,” applied only to subdivision of land and not development of land.

The Environmental Court ruled in favor of the Mountain Top in August 2018 in a decision that said Rule 2 could not be applied without expanding it beyond what the Legislature intended. The decision also found the resort did not have complete control over the rental properties.

Hall appealed, saying the Environmental Court did not have the jurisdiction to rule on the “lawfulness” or Rule 2. Hall said the resort controlled the rental properties and Mountain Top claimed the contrary.

The high court ruled in favor of the resort and also supported the Environmental Court, finding that Rule 2 was unlawful. The dissenting opinion agreed the Environmental Court had the right to determine whether Rule 2 was valid in this particular case but disagreed with the majority about whether Mountain Top exhibited control of the rental properties.

Dumont said he and Hall had spoken a lot about the decision and said they agreed that the majority and the dissent wrote well-reasoned, persuasive opinions.

“In this time of lack of respect for the courts and lack of respect for due process of law nationally, that’s not a trivial thing. That’s a really important thing,” he said.

Dumont said he and Hall planned to bring their concern to the Legislature during their next session, although he added there’s a possibility of an Act 250 reform bill during the current session.

“Whenever the Legislature deals with Act 250, this should be high on the list,” he said.

Calls to Roy this week were not returned, but the website of his law firm, Downs Rachlin Martin, called it an “important win” for Mountain Top.

patrick.mcardle

@rutlandherald.com