In re Mountain Top Inn & Resort, JO 1-391 (Katherine Hall, Appellant)
238 A.3d 637
Vt.2020Background
- Mountain Top Inn & Resort operates a program whereby independent homeowners sign a standard rental agreement authorizing the Resort to rent, manage, clean, and provide limited repair/housekeeping services for their private homes; guests check in at the Resort and use Resort amenities.
- About two dozen homes participated; homeowners retain furnishing obligations, may occupy homes (with notice), and may terminate the agreement on 30 days’ notice; Resort retains a percentage of gross rental receipts and may deduct repair costs.
- A district coordinator issued a binding jurisdictional opinion concluding the Resort needed an amended Act 250 permit because the Resort and homeowners constituted one "person" and the Resort effectively "controlled" the homes.
- The Environmental Division granted summary judgment for the Resort, holding (1) NRB Rule 2(C)(1)(a) improperly expanded the statutory definition of "person" for development and thus could not be applied to aggregate Resort and homeowners, and (2) the Resort did not exercise sufficient control over the homes under 10 V.S.A. § 6001(3)(A)(i).
- The Vermont Supreme Court affirmed: it held the Environmental Division had authority to adjudicate the rule’s validity in this appeal, agreed the Rule exceeded the statute insofar as it broadened the "person" definition to cover development, and concluded the Resort did not control the homes for Act 250 purposes. Justice Dooley (Ret.) concurred in part and dissented on control, arguing the Resort’s contractual rights were sufficient to require inclusion of the homes in the permit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Environmental Division had jurisdiction to decide Rule 2(C)(1)(a)'s validity | Hall: Environmental Division lacked authority; challenges to Act 250 rules must proceed under VAPA in Washington Civil Division | Resort: Environmental Division may consider rule validity when resolving appeals of coordinator opinions | Court: Environmental Division had jurisdiction to address rule validity in this appeal |
| Whether Rule 2(C)(1)(a) validly defines "person" for development | Hall: Rule is consistent with statute and properly treats affiliated parties as one person for development | Resort: Rule improperly expands statutory definition beyond subdivision context | Held: Rule invalid to the extent it expands §6001(14)(A)(iii) (affiliation for profit) from subdivision to development |
| Whether Resort and homeowners form a single "person" under the Rule/statute | Hall: Parties are affiliated for profit and thus a collective person for Act 250 | Resort: No joint venture or statutory basis to treat them as one person for development | Held: Parties are not a collective person under valid statutory definition; Rule cannot be applied to aggregate them for development jurisdiction |
| Whether the Resort "controls" the rental homes under §6001(3)(A)(i) so as to require permitting | Hall: Rental agreement grants exclusive management, ingress/egress, repair and guest control—sufficient functional control | Resort: Agreement grants only limited, intermittent management services; homeowners retain substantial control | Held: Resort does not exercise sufficient functional control; Act 250 jurisdiction does not attach via control here |
Key Cases Cited
- In re N.E. Materials Grp. LLC Act 250 JO #5-21, 199 Vt. 577, 127 A.3d 926 (Vt. 2015) (describing Act 250 purpose to protect lands and environment)
- In re SP Land Co., 190 Vt. 418, 35 A.3d 1007 (Vt. 2011) (permit required for commencing development)
- In re Request for Jurisdictional Op. re Changes in Physical Structures & Use at Burlington Int’l Airport for F-35A, 198 Vt. 510, 117 A.3d 457 (Vt. 2015) (rules require amended permit for material change)
- State of Vt. Envtl. Bd. v. Chickering, 155 Vt. 308, 583 A.2d 607 (Vt. 1990) (ownership and control are independent Act 250 criteria)
- In re Vitale, 151 Vt. 580, 563 A.2d 613 (Vt. 1989) ("control" means exercising restraining or directing influence)
- In re Eastland, Inc., 151 Vt. 497, 562 A.2d 1043 (Vt. 1989) (functional-control analysis for Act 250)
- In re Ochs, 181 Vt. 541, 915 A.2d 780 (Vt. 2006) (leases and contracts can establish control when lessee makes day-to-day decisions)