In re Acorn Energy Solar 2, LLC

Decision Date15 January 2021
Docket NumberNo. 2019-398,2019-398
Citation2021 VT 3
CourtVermont Supreme Court
PartiesIn re Petition of Acorn Energy Solar 2, LLC (Therese Holmes and Timothy Holmes, Appellants)

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Public Utility Commission

Anthony Z. Roisman, Chair

Cindy E. Hill of Hill Attorney PLLC, Middlebury, for Appellants.

Benjamin Marks of Benjamin Marks Attorney at Law PLC, Cornwall, for Appellee Acorn Energy Solar 2, LLC.

Alexander W. Wing, Special Counsel, Montpelier, for Appellee Vermont Department of Public Service.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. CARROLL, J. Therese and Timothy Holmes appeal a Public Utility Commission (PUC) decision granting Acorn Energy Solar 2 a certificate of public good (CPG) to build and operate a solar net-metering system. The Holmeses argue that the PUC erred in concluding that: Acorn's application was complete under the PUC Rules; several proposed changes constituted minor amendments; the project would be located on a preferred site; the project would comply with setback requirements; and the project would not have an undue adverse effect on aesthetics, orderly development, wetlands, air pollution, greenhouse gases, and traffic. We affirm.

I. Legal Background

¶ 2. We begin with an overview of the relevant legal background. A net-metering "system is an electricity producing system of up to 500 kW powered by a renewable energy source that operates alongside an existing electricity distribution network." In re Stowe Cady Hill Solar, LLC, 2018 VT 3, ¶ 2, 206 Vt. 430, 182 A.3d 53. "A developer of a new electric-generation facility in Vermont may not begin construction until the PUC determines that the proposed project 'will promote the general good of the State and issues a certificate to that effect.' " In re Derby GLC Solar, LLC, 2019 VT 77, ¶ 2, ___Vt. ___, 221 A.3d 777 (quoting 30 V.S.A. § 248(a)(2)(B)); accord In re SolarCity Corp., 2019 VT 23, ¶ 2, 210 Vt. 51, 210 A.3d 1255. "In deciding whether to grant a CPG, the PUC is directed by statute to consider various criteria." In re Green Mountain Power Corp., 2018 VT 97, ¶ 3, 208 Vt. 349, 198 A.3d 36.

¶ 3. As relevant to this appeal, the PUC must find that the "purchase, investment, or construction" of a project:

(1) will not unduly interfere with the orderly development of the region with due consideration having been given to the recommendations of the municipal and regional planning commissions, the recommendations of the municipal legislative bodies, and the land conservation measures contained in the plan of an affected municipality. However:
. . . .
(B) With respect to a ground-mounted solar electric generation facility, the facility shall comply with the screening requirements of a municipal bylaw adopted under 24 V.S.A. § 4414(15) or a municipal ordinance adopted under 24 V.S.A. § 2291(28), and the recommendation of a municipality applying such a bylaw or ordinance . . . .
. . . .
(5) With respect to an in-state facility, will not have an undue adverse effect on aesthetics, historic sites, air and water purity, the natural environment, the use of natural resources, and the public health and safety, with due consideration having been given to the criteria specified in 10 V.S.A. §§ 1424a(d) and 6086(a)(1) through(8) and (9)(K), impacts to primary agricultural soils as defined in 10 V.S.A. § 6001, and greenhouse gas impacts.

30 V.S.A. § 248(b). With that relevant background, we turn to the facts of this case.

II. Facts and Procedural History

¶ 4. On August 15, 2017, Acorn filed an application with the PUC to build and operate a ground-mounted 150 kW solar net-metering system about two miles east of Lake Champlain in Shoreham, Vermont. To build the project, Acorn would lease approximately three acres on a forty-one-acre parcel. The parcel is an actively grazed farm pasture that contains several farm buildings. The nearest public road, Watch Point Road, runs along the northern edge of the parcel. There is an adjoining parcel to the east that also abuts Watch Point Road and contains a single-family home.

¶ 5. The leased area would include the project site, the construction staging area, and a temporary gravel access road. The project site would be located southeast of the actively grazed farm pasture, which would place the project about 385 feet to the south of the single-family home on the adjoining parcel and more than 500 feet from Watch Point Road. The site would have a ground-mounted solar array containing eight rows of panels. Building the solar array would require grading a ridge located on the project's west edge and removing four large maple trees. To access the site, Acorn would build a temporary gravel access road that would extend east and south from the existing driveway on the parcel. The construction staging area would be located north of the gravel access road.

¶ 6. Acorn provided prefiled testimony outlining how the proposed project would affect § 248(b) criteria, including the orderly development of the region, aesthetics, air and water purity, impacts to primary agricultural soils, wetlands, and soil erosion. On aesthetics, applying the so-called Quechee analysis, Acorn concluded that the project would have an adverse aesthetic impact because portions of the project would be visible to the west and north from public roads and a few private residences. See Construction and Operation of Net Metering Systems § 5.112(A), 30 Codeof Vt. Rules 30 000 5100 [hereinafter Rule 5.100], http://www.lexisnexis.com/hottopics/codeofvtrules (explaining that PUC applies the "so-called 'Quechee test' " to determine "whether a net-metering system satisfies the aesthetics criterion"). Acorn represented that the impact would not be undue, however, in part because the project would be "partially screened by a series of existing mature trees and structures." Acorn would further mitigate the impact by planting two maple trees to the north of the solar array—between the construction staging yard and the temporary gravel access road—and two just to the west of the solar array.

¶ 7. With regard to effects on primary agricultural soils, Acorn attested that approximately 1.86 acres of primary agricultural soils would be impacted by the project, which would be "stripped, stored/covered, and replaced once the array is installed." According to the prefilled testimony, constructing the temporary gravel access road would have no impact on primary agricultural soils.

¶ 8. In terms of impacts to wetlands, Acorn represented that no significant Class II wetlands or buffers exist within the project site. Acorn acknowledged, however, that there are two small Class III wetlands. Wetland B is .08 acres and located in a low-lying pasture on the west side of the project site. Wetland A is a 0.6-acre, isolated wetland located on the east side of the project site that is used as cow pasture. The two wetlands are separated by a fifteen-foot ridge that divides the drainage. Acorn concluded that the solar array would not have a large impact on the Class III wetlands because the project layout avoids "trench and fill impacts" on them.

¶ 9. The Holmeses, who own property south of the project, filed notices of intervention and were granted party status.1 They filed rebuttal testimony challenging Acorn's conclusionsregarding several § 248(b) criteria, including orderly development, wetlands, and primary agricultural soils. Juli Hinds, a professional planner and member of the American Institute of Certified Planners, testified that the project would not promote the orderly development of the region because it did not meet the characteristics of a good site as defined in the Shoreham Town Plan and had characteristics of a bad site to the extent the project needs "to substantially excavate and modify the existing topography." Additional testimony was provided that grading the project site—which would involve lowering the ridge separating the Class III wetlands—could have a "profound impact" on the wetlands and subsurface evaluation was needed to assess the impact.

¶ 10. Almost a year after filing its initial application, Acorn proposed five changes to the project. First, primary agricultural soils disturbed during project construction would be stored on site in three berms. Two separate berms would be located along the eastern end of the project site and another at the southern end of the project. Second, overburden—material other than primary agricultural soil—would be stripped and "stockpiled immediately adjacent to the Project." Third, the solar array would be condensed, reducing the overall north-south dimension the array would take up. Fourth, the construction staging area would be moved west into the horse paddock on the host parcel. Finally, two maple trees—which were going to be planted to the west of the array—would be moved north into the horse paddock, just south of the construction staging area, so the trees would not interfere "with regular haying activities on the farm."

¶ 11. The Holmeses filed objections to the proposed changes and moved to dismiss Acorn's application, arguing that the proposed changes qualified as major amendments that required Acorn to refile its application. In response, Acorn withdrew the proposed changes and provided superseding proposed changes along with a motion for a minor amendment. The superseding proposed changes mirrored the original proposed changes with slight modifications. First, prime agricultural soils would be stored in two berms to the west—rather than to the east—of the project site, which would...

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