In re Rutland Renewable Energy, LLC

• Decision Date: 29 April 2016
• Docket Number: No. 15–230.,15–230.
• Citation: 2016 VT 50,147 A.3d 621
• Parties: In re Petition of RUTLAND RENEWABLE ENERGY, LLC for Certificate of Public Good Pursuant to 30 V.S.A. § 248, et al.
• Court: Vermont Supreme Court

147 A.3d 621

2016 VT 50

In re Petition of RUTLAND RENEWABLE ENERGY, LLC for Certificate of Public Good Pursuant to 30 V.S.A. § 248, et al.

No. 15–230.

Supreme Court of Vermont.

April 29, 2016.

Alan B. George, Rutland, for Appellants–Neighbors.

Kevin E. Brown of Langrock Sperry & Wool, LLP, Middlebury, for Appellant Town of Rutland.

Kimberly K. Hayden and Danielle M. Changala of Downs Rachlin Martin PLLC, Burlington, for Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

DOOLEY

, J.

¶ 1. The Town of Rutland (Town) and five adjoining landowners (neighbors) appeal from the Vermont Public Service Board's grant of a certificate of public good (CPG) under 30 V.S.A. § 248

to Rutland Renewable Energy, LLC (RRE) for construction of the Cold River Solar Project (Project), a 2.3 megawatt (Mw) solar photovoltaic electric generation facility. The Town and neighbors argue that the Board incorrectly held that the project will not unduly interfere with the orderly development of the region, will not have an undue adverse effect on aesthetics, and will not have an undue adverse impact on historic sites. We affirm.

¶ 2. The facts are undisputed. On December 20, 2013, RRE filed a petition requesting a CPG under 30 V.S.A. § 248

to construct and operate a solar electric generation facility of up to 2.3 Mw AC in the Town. The facility would be located southwest of the intersection of Cold River Road and Stratton Road, on approximately 15 acres of a larger parcel of land under contract for purchase by RRE. The parcel is bordered by Cold River Road, “increasing commercial and industrial uses,” a vacant wooded parcel, and four homes. Of the homes, one is separated from the site by a mature hedgerow, one is 150 feet from the project site, one is 280 feet away, and the last is over 500 feet away up a hillside, although it does have a driveway near the site's southernmost corner. While the parcel is currently an undeveloped open meadow, and the project area does include sections of a Class II wetland and four small Class III wetlands, the parcel is designated as “industrial/commercial” on the Town's Future Land Use Map. The project would principally include: (1) about 542 solar racks supporting about 10,000 individual panels, although exact wattage, number of panels, and panel configuration will be determined during final design and procurement based on snow and wind analysis; (2) underground electrical lines connecting arrays to combiner boxes and inverters; (3) two 1150 kW inverters with a combined nameplate capacity of up to 2.3 Mw AC; (4) two 1500 kVA step-up transformers or one 2500 kVA step-up transformer; (5) a perimeter fence; and (6) an access area and new curb along Cold River Road to service the northern area, and an extension to an existing access area along the road to service the southern area. The project would have a 64 foot setback from Cold River Road, with the perimeter fence 15 feet nearer to the road.

¶ 3. On March 3, 2014, neighbors and the Town were granted permissive intervention by the Board. The Board appointed a hearing officer to take evidence and render a proposed decision for the Board. The hearing officer took evidence on each of the relevant requirements for issuing a CPG contained in 30 V.S.A. § 248(b)

. The Town and neighbors particularly contested (1) whether the project met the requirement that it “will not unduly interfere with the orderly development of the region”; (2) whether the project “will not have an undue adverse effect on aesthetics”; and (3) whether the project “will not have an undue adverse effect on ... historic sites.” Id. § 248(b)(1), (5).¹ As discussed in more detail below, the hearing officer found that the proposal met all the requirements of § 248(b) if certain mitigation measures were in place.

¶ 4. The Board accepted most of the hearing officer's decision and rationale. As we discuss below, the Board somewhat modified the rationale on aesthetics and added a mitigation measure. The Board issued a CPG on March 11, 2015. Neighbors moved for reconsideration on March 26. The Board denied the motion on May 6, 2015, elaborating on its decision with respect to aesthetics. This appeal followed.

¶ 5. One significant part of the opposition of the Town and neighbors is their reliance on a document entitled Town of Rutland Solar Facility Siting Standards, which were adopted by the Town selectboard on October 22, 2013. The standards were drafted as an amendment to the Town plan. On December 19, the Town Planning Commission proposed an amendment to the Town plan incorporating the standards. The selectboard was expected to adopt the amendment in the summer of 2014.

¶ 6. The standards, as originally adopted by the selectboard, contain a number of provisions that are related to this appeal and are summarized below:

A. The Town desires to contribute its proportional share to meeting the renewable energy goals in Rutland County, as represented by its share of the land area of Rutland County—2.08%—but “not to exceed that percentage contribution.” The siting standards are intended “to avoid and mitigate potential impacts of solar facility development, while promoting new installations in appropriate locations, and achieving proportionality in Rutland Town's contribution to renewable energy solutions.”

B. Under General Standards for Energy Projects, the document states that the Town will consider supporting four types of energy development. None of the types include new solar generation facilities. Larger projects must be community-scale “that are designed to meet the expected needs of Rutland Town.”

C. Ground-mounted solar projects of a generation capacity of 1.5 kW or greater “shall be located at least 200 feet from any property line and at least 200 feet from any public highway.” Renewable energy facility setbacks from property lines or occupied structures should be increased as necessary to mitigate identified 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 ... Act 250 criteria ... and nuisances or adverse impacts upon adjoining property owners.

D. Ground-mounted solar energy facilities shall not be “located on primary agricultural soils.” Such facilities with a generation capacity greater that 100 kW shall “be located on nonagricultural land.”

E. Ground-mounted solar energy facilities “shall not be located within 500 [feet] of a building designated as a historic building.”

It is undisputed that the project does not comply “with the property line, roadway, and historic structure setback requirements contained in the Standards.” The project site contains a variety of primary agricultural soils; the standards prohibit siting a ground-mounted solar facility on primary agricultural soils. The site has not, however, been used for agricultural production for 15 to 20 years.

¶ 7. In its brief to this Court, the Town raises two principal arguments: (1) the Board failed to accord due consideration to the Town's recommendations that the proposed facility will “unduly interfere with the orderly development of the region” in violation of 30 V.S.A. § 248(b)(1)

; and (2) the facility will have an “undue adverse impact” on aesthetics, historic sites, and primary agricultural soils in violation of § 248(b)(5). Similarly, neighbors contend that the project will unduly interfere with the region's orderly development and will have an undue adverse effect on aesthetics and historic sites.

¶ 8. This Court applies a “deferential standard of review in appeals from the Public Service Board.” In re Green Mountain Power Corp.,

162 Vt. 378, 380, 648 A.2d 374, 376 (1994). We recognize that:

When the Board evaluates a petition for a CPG under 30 V.S.A. § 248

, it is engaging in a legislative, policy-making process. The Board must exercise its discretion to weigh alternatives presented to it, utilizing its particular expertise and informed judgment. We give great deference to the Board's expertise and judgment and accord a strong presumption of validity to the Board's orders. We will affirm the Board's findings unless they are clearly erroneous, and an appellant bears a heavy burden of demonstrating clear error.

In re UPC Vt. Wind, LLC, 2009 VT 19, ¶ 2, 185 Vt. 296, 969 A.2d 144

(citations omitted). This is a highly deferential standard of review. Despite the limited standard of review, “we do not abdicate our responsibility to examine a disputed statute independently and ultimately determine its meaning.” In re MacIntyre Fuels, Inc., 2003 VT 59, ¶ 7, 175 Vt. 613, 833 A.2d 829 (mem.).

¶ 9. Under § 248(b)(1)

, a CPG may be issued for a facility if the Board finds that the facility “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 ... [and] the recommendations of the municipal legislative bodies.” The main thrust of the arguments of the Town and neighbors is that the Board failed to give sufficient weight to the standards adopted by the Town legislative body. We emphasize that the statutory requirement relates to the orderly development of the region, not to a particular municipality within the region. Thus, in UPC Vt. Wind, 2009 VT 19, ¶ 20, 969 A.2d 144, we affirmed the Board's analysis of compliance with the requirement based on the overall impact on a three-county region.

¶ 10. We understand that the standard of review to address the Town's opening argument led to a backlash that persuaded the Legislature to amend § 248

to give towns greater control over solar generation facilities. 2015, No. 56, §§ 26a, 26b, 26c. The new siting requirements in Act 56 were not in place when RRE filed its application or when the Board issued the CPG. They do not purport to be retroactive. Thus, we cannot consider the new requirements or the process that led to their enactment.²...