In re Beach Props., Inc.

• Decision Date: 16 October 2015
• Docket Number: No. 15–083.,15–083.
• Citation: 133 A.3d 854
• Parties: In re Application of BEACH PROPERTIES, INC. d/b/a Basin Harbor Club, for a Certificate of Public Good for an Interconnected Group Net–Metered Photovoltaic Electric Power System.
• Court: Vermont Supreme Court

133 A.3d 854

In re Application of BEACH PROPERTIES, INC. d/b/a Basin Harbor Club, for a Certificate of Public Good for an Interconnected Group Net–Metered Photovoltaic Electric Power System.

No. 15–083.

Supreme Court of Vermont.

Oct. 16, 2015.

Motion for Reargument Denied Nov. 17, 2015.

Mary McGuire, Pro Se, Bronxville, New York, Douglas Grover, Pro Se, Chappaqua, New York, Amanda T. Rundle of Rundle & Rundle, PLLC, Springfield, for Appellants.

Ritchie E. Berger and Nathaniel J. Wonderly of Dinse, Knapp & McAndrew, P.C., Burlington, for Appellee.

Present: REIBER, C.J.,¹ DOOLEY, SKOGLUND and ROBINSON, JJ., and MORSE, J. (Ret.), Specially Assigned.

MORSE

, J. (Ret.), Specially Assigned.

¶ 1. Mary McGuire and Douglas Grover separately appeal from orders of the Public Service Board granting Basin Harbor Club (BHC) a certificate of public good for the installation of a photovoltaic net metering system, and denying McGuire's motion for reconsideration. We conclude that the Board erred in denying McGuire's motion for reconsideration on the ground that she lacked party status, and therefore reverse and remand.

¶ 2. In August 2014, BHC gave notice of its application for a certificate of public good (CPG) for the installation of a photovoltaic net metering system on its property in Ferrisburgh, pursuant to the provisions of 30 V.S.A. § 248(j)(2)

. The project consisted of twenty-five pole-mounted sun-tracking solar panels occupying an area of approximately one-and-a-half acres, to be located in a portion of a twenty-acre field. Each solar tracker would be twenty-feet tall at its maximum height. The area of the field containing the project is bordered by the private Mile Point Road.

¶ 3. The CPG application notified adjoining landowners that, "if you wish to comment to the Public Service Board about this proposal or request a hearing, you must file your comments with the Board and the applicant within 30 days of the date that the application was sent to the Board and all required parties." In response, a number of property owners on Mile Point Road, including Mary McGuire and Douglas Grover, submitted comments, and several—including McGuire and Grover—also requested a hearing. Some of the submissions were relatively brief letters of opposition to the project, principally on aesthetic and environmental grounds. Those of McGuire and Grover were extensive, discussing each of the statutory review criteria under 30 V.S.A. § 248(b)

, and asserting that the project—located in the Shoreland District of the Ferrisburgh town plan—was inconsistent with the plan and the orderly development of the region. They also argued that the project would hurt the local economy by decreasing property values of lakefront homes; posed health and safety risks by emitting high electronic and magnetic field (EMF) levels and ocular glare that could temporarily blind pilots at a nearby private airport; and would have an unduly adverse aesthetic impact on the area's "vacation oriented lakeside homes and advertised scenic tourist routes." A number of additional exhibits were appended to the comments.

¶ 4. The Board directed BHC to respond to "the numerous comments" opposing the application and specifically to "organize its response" into sections clearly identifying the issue and comment it was addressing. BHC complied, submitting a detailed response which specifically addressed the arguments raised by McGuire, Grover, and the other neighbors. Supplemental comments and exhibits filed by McGuire and others resulted in a Board order directing BHC to address these additional concerns, as well.

¶ 5. Ultimately, in late November 2014, about three months after the initial application, the Board issued a written decision granting the CPG. The Board noted that the Mile Point Road neighbors had raised numerous objections to the project under the relevant statutory criteria, and addressed each in turn. It found that the project was not inconsistent with the town plan; that neighbors had not demonstrated any "significant economic harm" or historic resources that could be impacted by the project; and that the evidence did not show any significant public-health issue relating to EMF levels or ocular glare. As to aesthetics, the Board applied the so-called Quechee test to find that the project would have an adverse effect as a result of being "out of context" with its surroundings, but that the impact was not "undue." In this regard, the Board found that the project did not violate any clear community standards; that BHC had taken generally available mitigating steps to minimize its visibility and adverse impact; and that it would not be shocking to the average person.

¶ 6. The decision stated that any appeal must be filed within thirty days from the date of decision, and that any motion for reconsideration must be filed within ten days of the date of the decision. McGuire filed a timely, and lengthy, motion for reconsideration, challenging the Board's findings under each of the statutory review criteria. Grover filed an untimely motion for reconsideration by email, and failed to file an original copy with the Board, as required by Board rule. See Public Service Board Rules, Rule 2.204(C), 18 Code of Vt. Rules 18–1–1:2.204, http://www.lexisnexis.com/hottopics/codeofvtrules [hereinafter Pub. Serv. Bd. Rules] (filing "shall be accomplished by delivery to the clerk at the office of the Board or by delivery to the Board").²

¶ 7. The Board dismissed McGuire's motion for reconsideration in a written decision in mid-January 2015, finding that she had not moved to intervene for party status and therefore "lack[ed] the requisite legal standing to file a motion for reconsideration." The Board did not address Grover's motion. McGuire then filed a request for "intervenor status" and, shortly thereafter, a notice of appeal. Grover filed a separate notice of appeal and motion to intervene.³

¶ 8. Although both appeals focus on the merits of the Board's CPG ruling, we are confronted at the outset with several significant procedural issues. First, as noted, the record shows that Grover's motion for reconsideration was untimely, and therefore did not effectively toll the thirty-day appeal period under Vermont Rule of Appellate Procedure 4(b)(5)

. See Fagnant v. Foss, 2013 VT 16A, ¶ 10, 194 Vt. 405, 82 A.3d 570 ("The motions listed in Rule (4)(b) toll the running of the appeal period only if they are timely filed."). Thus, the appeal by Grover was untimely, and we lack jurisdiction to consider it. Casella Constr., Inc. v. Dep't of Taxes, 2005 VT 18, ¶ 3, 178 Vt. 61, 869 A.2d 157 ("The timely filing of a notice of appeal is a jurisdictional requirement.").

¶ 9. Second, we are confronted with BHC's argument that McGuire failed to obtain party status before the Board, and therefore lacked standing to bring her appeal. We also consider BHC's related argument, raised in a motion to dismiss while the appeal was pending, that McGuire's lack of party status disqualified her from filing a motion for reconsideration, that the motion could not effectively toll the thirty-day appeal period, and that her appeal was therefore untimely.⁴ Although McGuire disputes BHC's claim that party status was required to appeal or move for reconsideration, she also asserts that she became a party in effect in the course of the proceeding, and therefore properly appealed and moved for reconsideration. As explained below, we agree with the latter assertion.⁵

¶ 10. We begin with the pertinent provisions governing the application and review process for "net metering" systems of this type.⁶ The Legislature has authorized the Board to "establish by rule or order standards and procedures governing application for, and issuance or revocation of a certificate of public good for net metering systems under the provisions of section 248

of this title." 30 V.S.A. § 219a(c). Section 248 provides that an applicant must provide written notice of the proposed certificate to certain specified "parties," including several identified state agencies, the regional planning commission, and the local municipal legislative body of each town and city where the proposed facility will be located, as well as "any other person found by the Board to have a substantial interest in the matter." 30 V.S.A. § 248(j)(2) & (a)(4)(C) (emphasis added). The statute thus appears to contemplate two distinct types of participants in Board proceedings: "persons" and "parties." The statute further specifies that such notice "shall request comment" on whether the petition "raises a significant issue" under the relevant review criteria, and, if so, the Board "shall hear evidence on any such issue." Id. § 248(j)(2).

¶ 11. The Board's general rules of practice maintain the distinction, providing that, at the commencement of any proceeding, "the party initiating the same shall file a statement identifying by name and address each person, party or other entity to whom or to which the Board or the Clerk is required to give notice of such proceeding." Pub. Serv. Bd. Rule 2.205(A). The rules further establish general standards for "intervention" to obtain party status. "[I]ntervention as of right" is authorized where a "person" is specifically authorized by statute to intervene, or where the person demonstrates a "substantial interest" which may be adversely affected, the proceeding provides the "exclusive means" of protecting that interest, and the interest "is not adequately represented by existing parties." Id. Rule 2.209(A). "[P]ermissive intervention" is authorized in similar circumstance where the person also shows that intervention "will [not] unduly delay the proceeding or prejudice the interests of existing parties of the public." Id. Rule 2.209(B).

¶ 12. The Board has also adopted special rules pertaining to "Construction and Operation of Net Metering Systems." They provide that an application for a certificate of public good must be filed "in accordance with the filing...