In re Apple Hill Solar LLC

CourtUnited States State Supreme Court of Vermont
Citation280 A.3d 44
Docket Number20-232
Parties IN RE Petition of APPLE HILL SOLAR LLC
Decision Date03 September 2021

280 A.3d 44


No. 20-232

Supreme Court of Vermont.

March Term, 2021
September 3, 2021
Motion for Reargument Denied September 30, 2021

Thomas Melone, Allco Renewable Energy Limited, New Haven, Connecticut, for Appellant.

Thomas J. Donovan, Jr., Attorney General, and Melanie Kehne, Assistant Attorney General, Montpelier, for Appellees Agency of Natural Resources and the State of Vermont.

L. Brooke Dingledine of Valsangiacomo, Detora & McQuesten, P.C., Barre, for Appellees Libby Harris and Apple Hill Homeowners Association.

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


280 A.3d 49

¶ 1. Following a remand from this Court, the Public Utility Commission (PUC) denied petitioner's request for a certificate of public good (CPG) to construct a 2.0 megawatt (MW) solar facility on Apple Hill in the Town of Bennington, Vermont. Petitioner appeals, arguing that the PUC erred in: (1) denying its request to amend its petition; (2) concluding that the Bennington Town Plan and Bennington Regional Plan contained clear community standards and that the project would violate those standards; (3) applying the "modified Quechee" standard in the aesthetics analysis without having gone through rulemaking; (4) treating the provisions of the Bennington Town Plan as if they were binding zoning ordinances in violation of 24 V.S.A. § 4413 ; (5) failing to consider the positive benefits of the project with respect to greenhouse-gas emissions in the contexts of its aesthetics analysis; and (6) applying vague and standardless tests in violation of its constitutional rights. As discussed below, we reject significant portions of the PUC's rationale for denying petitioner a CPG, and we therefore reverse and remand for additional proceedings.

I. Prior Proceedings

¶ 2. This case is before us for a second time. The PUC initially granted petitioner's request for a CPG. Neighbors appealed, challenging the PUC's conclusions that the project would not unduly interfere with the orderly development of the region or have an undue adverse effect on aesthetics. See 30 V.S.A. § 248(b)(1), (5) (requiring findings to this effect for issuance of CPG). We reversed and remanded for additional proceedings, holding that the PUC's conclusions on these points were unsupported by its findings and the evidence. See In re Apple Hill Solar LLC (Apple Hill I ), 2019 VT 64, ¶ 14, 211 Vt. 54, 219 A.3d 1295.

¶ 3. More specifically, in concluding that the project would not unduly interfere with the orderly development of the region, the PUC relied heavily on its conclusion that the Town itself took the position that the project would not deviate from the requirements of the Town Plan. Id. ¶¶ 29-30 ; see also 30 V.S.A. § 248(b)(1) (requiring finding that project would "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 any affected municipality"). We concluded that the Town had not in fact taken such a position but in fact had repeatedly emphasized that it took no position as to whether the project complied with the Town Plan. Apple Hill I, 2019 VT 64, ¶ 30, 211 Vt. 54, 219 A.3d 1295. For that reason, we concluded that the PUC erred by deferring "to a position the Town did not actually take." Id. We directed the PUC on remand "to assess the impact of the project on the orderly development of the region in light of the Town Plan without consideration of the selectboard's purported position on the subject." Id. ¶ 31.

¶ 4. With respect to aesthetics under 30 V.S.A. § 248(b)(5), the PUC applied a modified version of the Quechee test to evaluate if a project's adverse aesthetic effect would be undue. Id. ¶ 33. Under this test,

[a]n adverse effect is not undue if the project will not violate a clear, written community standard intended to preserve the aesthetics or scenic, natural
280 A.3d 50
beauty of the area and will not offend the sensibilities of the average person, and the applicant will take generally available mitigating steps that a reasonable person would take to improve the harmony of the proposed project with its surroundings.

Id. (quotations omitted). "Town plans may be sources of clear, written community standards." Id.

¶ 5. The PUC's conclusion on aesthetics rested in part on a determination that the Bennington Town Plan did not constitute "a clear, written community standard intended to preserve aesthetics." Id. ¶ 32. According to the PUC, the Town treated its plan "like a zoning ordinance ... subject to varied application" and took different positions on whether "development of commercial solar-generation facilities" was allowed in the Rural Conservation District, where the proposed facility would be located. Id. ¶ 34 (quotation marks omitted). The PUC deemed the Town's decision not to oppose the project a failure to "clearly and consistently apply the language of the Town Plan" and concluded, as a result, that the 2010 Town Plan "no longer serve[d] as a clear, written community standard that unequivocally identif[ied] the Rural Conservation District as a resource that need[ed] protection." Id. (quotation marks omitted).

¶ 6. We reversed this conclusion because the evidence that the PUC appeared to rely on—the Town's decision not to affirmatively argue that the project violated the Town Plan, the Town attorney's opinion and advice to the selectboard before it made its decision, and the Town Planner's testimony—did not show that the Town inconsistently applied the standards for the Rural Conservation District. Id. ¶ 37. "We accordingly direct[ed] the PUC to determine whether the project violates those standards in assessing whether the project's adverse effects [were] undue." Id. ¶ 36.

¶ 7. We did not address the substance of any purported standards in Apple Hill I. We emphasized that our determination—that the evidence relied upon by the PUC did not support its conclusion that the Town Plan did not "constitute a clear, written community standard intended to protect aesthetics"—was not intended to suggest that the project necessarily violated such a standard. Id. ¶ 41. We held only that the PUC erred in declining to actually apply clear, written standards in the Town Plan in evaluating whether the project's adverse effect would be undue. Id. We added that, in applying this standard on remand, the PUC must also address whether the project violated "the specific design standards in the Rural Conservation District," including that development could not "be sited in prominently visible locations on hillsides or ridgelines, [must] utilize earth tone colors and non-reflective materials on exterior surfaces of all structures, and must minimize clearing of natural vegetation." Id. ¶ 41 n.14 (quotation marks omitted).

II. Decision on Remand

¶ 8. The parties agreed that no additional evidence was necessary on remand. A hearing officer subsequently recommended that the PUC deny the CPG. He concluded that the facility would unduly interfere with the orderly development of the region because it was inconsistent with the Town and Regional Plans, and that it would have an undue adverse impact on aesthetics and the scenic or natural beauty of the area because it violated clear community standards in the Town Plan.

¶ 9. Several months after this decision—and just before argument in front of the PUC—petitioner attempted to amend its petition over the opposition of the Agency

280 A.3d 51

of Natural Resources. The PUC denied petitioner's request to amend, finding that it proposed significant changes and essentially sought review of a new project. It considered the request inappropriate, untimely, and outside the scope of its review on remand.

¶ 10. On the merits of the CPG, the PUC adopted the hearing officer's proposed decision, which reflects the following. The facility would be built in the Town's Rural Conservation District. It would abut the site of another proposed facility (Willow Road) on a 27-acre parcel on Apple Hill. The facility would be topographically sloped from a high elevation of 778 feet at the northeast corner to a low point of 675 feet near the southwest corner. The overall grade is approximately 10% with a total vertical change of 103 feet over 1028 feet. The racking system would be painted matte black like the color of the nonreflective solar panels. The facility would require 9.67 acres of clearcutting.

¶ 11. During the winter leaf-off conditions, the facility would be visible from various locations, including: the Vermont Welcome Center south of the base of Apple Hill; from the west, to vehicles heading north on heavily traveled U.S. Route 7; from the closest residence to the facility, which was approximately 400 feet to the north-northeast; and from the Mt. Anthony Country Club, which was approximately 6200 feet southwest of the facility. It would be minimally visible from the observation windows at the Bennington Battle Monument.

¶ 12. In considering orderly development under 30 V.S.A. § 248(b)(1), the hearing officer...

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