Highridge Condominium Owners Assoc. v. Killington/Pico Ski Resort Partners, LLC, 111 A.3d 427

In 1983 North Ridge Development Corp. created Highridge Condominiums via a declaration under Vermont’s Condominium Ownership Act to develop up to 250 units in phases.
The declaration reserves to the declarant the right to amend the declaration and adjust each unit’s percentage interest to reflect additional units, enabling phased development without requiring unit-owner consent.
The declaration contemplates a Schedule of Final Percentage Interest after final phase and authorizes the declarant to modify site plans and permits to facilitate future phases.
Amendments prior to the Association’s 1990-formed control adjusted interim interests to reflect new units; the most recent amendment in 1990 accounted for more units.
Foreclosure proceedings in 1991 and subsequent transfers eventually led to Killington/Pico Ski Resort Partners, LLC (K/P) holding an interest in Highridge through deeds tracing back to North Ridge.
In 2011 K/P sought approval to build additional units; the Association claimed the declaration did not reserve such rights or that K/P could not succeed to them.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the declarant retained unilateral development rights.	Association: no unilateral right to add units without consent.	K/P: declaration reserves development rights for declarant to add units up to 250.	Declarant had unilateral development rights up to 250 units.
Whether K/P succeeded to the original declarant’s development rights.	Association: rights do not pass to successors.	K/P: successor to North Ridge, including development rights, per the declaration’s inure-to-benefit clause.	K/P is successor in interest and may develop up to 250 units without Association consent.
Whether time or prior acquiescence affects the declarant’s rights.	Association: long gap and past acquiescence negate ongoing rights.	K/P: rights in the declaration are not time-limited and past practice does not defeat them.	Development rights are not time-limited; past acquiescence is immaterial to the declarant’s rights.

Madowitz v. The Woods at Killington Owners’ Ass’n., 188 Vt. 197 (2010 VT) (declarant rights to phased development may be unilaterally exercised)
Creed v. Clogston, 176 Vt. 436 (2004 VT) (declaration interpreted as contract; give effect to clear terms)
In re Rosenberg, 188 Vt. 598 (2010 VT) (consideration of extrinsic evidence requires ambiguity)
Myrtle Rebekah Lodge No. 6 v. Cavendish Library Trs., 169 Vt. 553 (1999 VT) (interpreting instrument’s obvious purpose; give effect to drafter’s intent)
DeGraff v. Burnett, 182 Vt. 314 (2007 VT) (interpretation of contracts in light of intent; contract term governing)