This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Rutland Unit, Civil Division. William D. Cohen, J.
Christina A. Jensen and Carl H. Lisman of Lisman Leckerling, P.C., Burlington, for Plaintiff-Appellee.
Allan R. Keyes and Erin J. Gilmore of Ryan Smith & Carbine, Ltd., Rutland, for Defendant-Appellant.
Present: Dooley, Skoglund and Robinson, JJ., and Hayes and Zonay, Supr. JJ., Specially Assigned.
[¶1] This case arises from a dispute between developer Killington/Pico Ski Resort Partners, LLC (" K/P" ) and the Highridge Condominium Owners Association concerning developer's proposal to construct additional units in the Highridge condominium development in Killington. On cross-motions for summary judgment, the trial court granted declaratory relief to the Association on the ground that the declaration of condominium did not authorize the original developer to add additional units unilaterally, and thus the alleged successor to the original developer's rights, K/P, also had no such right. We conclude that K/P is the successor in interest to the original developer with respect to development rights, and is entitled to construct the proposed additional units under the declaration of condominium. Accordingly, we reverse.
[¶2] The undisputed facts are as follows. In 1983, the North Ridge Development Corporation created Highridge Condominiums by a declaration of condominium made under the Vermont Condominium Ownership Act, 27 V.S.A. § § 1301-1329. North Ridge's stated intent in the declaration was to " develop and build a total of not more than two hundred fifty (250) Condominium Units, with related road, parking areas, utilities, sewer and water lines, and other common elements, amenities and facilities determined by Declarant to be necessary or convenient for the condominium development." " In contemplation of" this expressed intention, North Ridge submitted its right, title and interest in the land in question to condominium ownership.
[¶3] The declaration expresses North Ridge's intent, as declarant, " to construct not more than two hundred fifty (250) Condominium Units in phases, with those Units reflected in the Interim Schedule of Percentage Interests filed with this Declaration to be constructed in the first phase and the remaining Units to be constructed in subsequent phases as and when determined by Declarant." The declaration describes the formula by which each unit owner's undivided interest in the common areas is to be calculated, and provides:
Notwithstanding any contrary provision of this Declaration, if and in the event additional phases are developed or other lands are annexed to the Project, Declarant expressly reserves to itself, its successors and assigns, the right to amend this Declaration from time to time so that the Interim and/or Final Percentage Interest of a Unit Owner may be adjusted to reflect the additional Units, which reservation is an express condition of ownership of Units in the condominium and is senior to the conveyance and/or mortgage of such Units; by acceptance of deeds of their Units, Unit Owners shall be deemed to have designated and appointed Declarant as their attorney in fact for ...