In re Apple Hill Solar LLC

• Docket Number: 22-AP-286
• Decision Date: 27 October 2023
• Citation: 2023 VT 57
• Parties: In re Petition of Apple Hill Solar LLC
• Court: Vermont Supreme Court

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2023 VT 57

In re Petition of Apple Hill Solar LLC

No. 22-AP-286

Supreme Court of Vermont

October 27, 2023

On Appeal from Public Utility Commission April Term, 2023 Anthony Z. Roisman, Chair

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

Ben Civiletti, Special Counsel, Montpelier, for Appellee Department of Public Service. L. Brooke Dingledine of Valsangiacomo, Detora & McQuesten, P.C., Barre, for Appellee Apple Hill Homeowners Association.

Charity R. Clark, Attorney General, and Laura B. Murphy Assistant Attorney General, Montpelier, for Amicus Curiae State of Vermont.

PRESENT: REIBER, C.J., EATON, CARROLL, COHEN AND WAPLES, JJ.

REIBER, C.J.

¶ 1.Petitioner Allco Renewable Energy Limited appeals from the Public Utility Commission's denial of its request for a certificate of public good (CPG) to construct a solar energy project in Bennington, Vermont. We affirm.

¶ 2. Under Vermont law, a company desiring to build an in-state electric generation facility may not begin site preparation or construction unless the Commission "first finds that the [project] will promote the general good of the State and issues a certificate to that effect." 30 V.S.A. § 248(a)(1)(B). To issue a CPG, the Commission must find that the project meets specified criteria. Id. § 248(b). Among these are that the project "will not unduly interfere with the orderly development of the region with due consideration having been given to . . . the land conservation measures contained in the plan of any affected municipality," id. § 248(b)(1), and that it "will not have an undue adverse effect on aesthetics." Id. § 248(b)(5). Under the test used by the Commission, an adverse impact on aesthetics is undue if it "violate[s] a clear, written community standard intended to preserve the aesthetics or scenic, natural beauty of the area." In re Rutland Renewable Energy, LLC, 2016 VT 50, ¶ 14, 202 Vt. 59, 147 A.3d 621 (quotation omitted).

¶ 3. In 2015, petitioner applied for a CPG to construct a 2.0-megawatt solar electric generation facility in Bennington. The project site is in a Rural Conservation District as defined in the Bennington Town Plan. The plan states that development in Rural Conservation Districts "cannot be sited in prominently visible locations on hillsides or ridgelines." In re Apple Hill Solar LLC [Apple Hill I], 2019 VT 64, ¶ 3, 211 Vt. 54, 219 A.3d 1295.

¶ 4. Appellee Apple Hill Homeowners Association (AHHA) intervened in the CPG proceeding, as did the Town of Bennington. The Town initially argued that petitioner should not be granted a CPG because the project would violate clear, written community standards in the Town Plan, and would therefore interfere with the orderly development of the region and have an undue adverse impact on aesthetics. The Town later changed its position, voting not to oppose the project, and withdrew from the proceeding. Id. ¶¶ 5-6.

¶ 5. Based in part on the Town's decision not to oppose the project, the hearing officer issued a proposal for decision recommending that the Commission conclude the project would not violate any clear, written community standard, and would therefore not unduly interfere with the orderly development of the region or have an undue adverse effect on aesthetics. The Commission adopted the hearing officer's findings and issued petitioner a CPG.

¶ 6. AHHA and another neighbor-intervenor appealed, and in a decision issued in September 2019, we reversed. Apple Hill I, 2019 VT 64, ¶ 1. We held that the Commission's conclusion that the project would not interfere with the orderly development of the region was clearly erroneous because it was based on the Town selectboard's decision not to oppose the project. Id. ¶ 30. We explained that the Town's decision to withdraw its opposition did not mean that the project complied with the Town Plan or that the Town believed that it did. Id. We therefore remanded for the Commission "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. We also reversed the Commission's conclusion that the project would not have an undue adverse impact on aesthetics, because it rested on clearly erroneous findings that the Town Plan's standards for the Rural Conservation District did not constitute clear, written community standards. Id. ¶¶ 37-40. We instructed the Commission to consider on remand whether the project violated the specific design standards in the Town Plan. Id. ¶ 41.

¶ 7. The parties agreed on remand that no further evidence was required for the Commission to render its decision. In re Apple Hill Solar LLC [Apple Hill II], 2021 VT 69, ¶ 8, 215 Vt. 523, 280 A.3d 44. The Commission appointed a hearing officer to address the issues identified by this Court. The hearing officer found that petitioner's proposed project would violate two standards in the Town Plan because it was a commercial development that would be incompatible with the rural character of the area and it would be sited in a prominently visible location on a hillside. The hearing officer concluded that the project would therefore unduly interfere with the orderly development of the region and have an undue adverse impact on aesthetics. Id. ¶¶ 15-19. After hearing argument from the parties, the Commission adopted the hearing officer's proposal and denied petitioner's request for a CPG. Id. ¶ 20.

¶ 8. Petitioner appealed the decision to this Court. We reversed in part, concluding that the Commission erred in finding the impacts of the project to be undue based on a violation of the Town Plan's provision favoring development in the Rural Conservation District consistent with the rural character of the area. Id. ¶¶ 37-43. We explained that the cited provision was too broad and general to constitute a clear, written community standard. Id. ¶ 42. However, we affirmed the Commission's conclusion that the project would violate the clearly written standard prohibiting development in prominently visible locations on hillsides. Id. ¶ 50. Because § 248(b)(1) only required the Commission to give such standards "due consideration," and § 248(b)(5) likewise did not compel the Commission to deny the permit as a result of the violation, we remanded the matter "for the [Commission] to reassess petitioner's application without the conclusions that siting the facility in the Rural Conservation District would interfere with orderly development and cause an undue adverse aesthetic impact." Id. ¶ 67.

¶ 9. On remand, after requesting and receiving briefing by the parties, the Commission issued an order denying the CPG petition. The Commission concluded that the placement of the proposed project in a prominently visible location on a hillside would result in undue interference with the orderly development of the region and have an undue adverse impact on aesthetics. The Commission found that the potential benefits of the project did not outweigh these impacts because the State could realize similar benefits from other solar projects located in areas that did not run afoul of town and regional plans. Petitioner moved for reconsideration, which the Commission denied. This appeal followed.

¶ 10. Petitioner argues on appeal that the Commission's decision violated various provisions of the Vermont Administrative Procedure Act (VAPA), relied on evidence not in the record, contained impermissible post-hoc rationalizations, ignored this Court's remand order, and was arbitrary and capricious. Petitioner argues that the Commission ought to have allowed it to present additional evidence regarding the visibility and social benefits of the project. Petitioner further claims that the Commission's application of § 248(b)(1) and (5) deprived it of due process and equal protection. As discussed below, we conclude that none of petitioner's claims have merit and therefore affirm the Commission's decision.

¶ 11. We begin by noting the limited nature of our review. "In a § 248 proceeding, the [Commission] is engaged in a legislative, policy-making process." In re Vt. Elec. Power Co., 2006 VT 69, ¶ 6, 179 Vt. 370, 895 A.2d 226 (quotation omitted). The Commission "must employ its discretion to weigh alternatives presented to it, utilizing its particular expertise and informed judgment." Id. (quotation omitted). Accordingly, when reviewing the Commission's decision in a CPG proceeding, "[w]e give great deference to the [Commission]'s expertise and judgment and accord a strong presumption of validity to [its] orders." In re UPC Vt. Wind, LLC, 2009 VT 19, ¶ 2, 185 Vt. 296, 969 A.2d 144 (quotation omitted). We will not disturb the Commission's factual findings unless the appellant demonstrates that they are clearly erroneous. Id.

I. Procedural Claims

A. Compliance with 3 V.S.A. § 811

¶ 12. Petitioner first asserts that the Commission violated VAPA by failing to issue a proposal for decision and give the parties an opportunity to comment before it denied the CPG petition. Petitioner argues that a proposal for decision was required because a majority of the Commission's members did not hear the case or read the record.

¶ 13. In a contested case, VAPA requires that if "a majority of the officials of the agency who are to render the final decision have not heard the case or read the record," the agency may not issue a decision adverse to a party without first serving a proposal for decision and giving the party an opportunity to object and present briefing and oral argument. 3 V.S.A. § 811. But "[t]here is no such requirement where the [Commission] does read the record or hear the case, or both. In such situations, the [Commission] is not...