In re Petition of VTel Wireless Inc., for a Certificate of Public Good, Pursuant to 30 V.S.A. § 248a, for the Installation of Telecommunications Equipment in Bennington, Vermont (Susan Beal and David Pearson, Appellants)
Appeal from Public Service Board. James Volz, Chair.
Anderson of Burak Anderson & Melloni, PLC, Burlington, for
William J. Dodge and Elizabeth Kohler of Downs Rachlin Martin
PLLC, Burlington, for Appellee.
Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
[¶1] Appellants Susan Beal and David Pearson
appeal from a decision of the Public
Service Board granting a certificate of public good (CPG) for
the installation of a telecommunications facility by VTel
Wireless, Inc. in the Town of Bennington. Appellants contend
the Board erred in finding that they had failed to
demonstrate: (1) a " substantial interest" to
intervene in the proceeding; and (2) a " significant
issue" to warrant a hearing. We affirm.
[¶2] In late May 2014, VTel provided notice
of its intent to seek a CPG for a planned telecommunication
project, as required by statute. 30 V.S.A. § 248a(e).
The notice was sent to several local and state agencies and
all adjoining landowners, including appellants, and set forth
in considerable detail a description of the proposed
telecommunication facility, its purpose, and its anticipated
impacts. The prefiling notice explained that the project was
to be located in a heavily wooded area on property owned by
Southern Vermont College, just off of Mansion Drive in
Bennington. The goal was to bring high-speed, wireless
internet service to as many as 7,700 unserved or underserved
homes and businesses in the area. The planned facility would
consist of a ninety-foot metal communications pole with
attached antennas, a storage container on a concrete pad
adjacent to the tower, and underground power lines. An
existing gravel road off of Mansion Drive would provide
access to the site.
[¶3] A series of zoning drawings, viewshed
maps, and simulated photographs showing the planned tower
from various locations were appended to the notice to
demonstrate the project's anticipated aesthetic impacts.
According to VTel, these showed that the project would be
situated away from ridgelines in an existing clearing bounded
by forest on all sides, that its visibility impact was
expected to be minimal, and that it was not expected to
diminish the scenic qualities of the area. An analysis and
summary of the project's compliance with the zoning
requirements and goals of the Bennington town and regional
plans was also included, as well as documentation showing the
project's compliance with radio-frequency emission
guidelines promulgated by the Federal Communications
[¶4] The notice also outlined the statutory
review process, explaining that the Board would be required
to evaluate the project to determine its consistency with
town and regional plans, and that VTel accordingly would be
seeking recommendations for approval of the project from the
town and the Bennington Regional Commission prior to
submission of a formal CPG application. The notice further
indicated that the project qualified as a telecommunication
facility " of limited size and scope" under 30
V.S.A. § 248a(b)(3) and therefore was subject to
expedited review under a limited number of criteria,
including aesthetics. See 30 V.S.A. § 248a(c)(1)
(providing that, " with respect to telecommunications
facilities of limited size and scope, the Board shall waive
all criteria of this subdivision other than 10 V.S.A. §
6086(a)(1)(D) (floodways) and (a)(8) (aesthetics, scenic
beauty, historic sites, rare and irreplaceable natural areas,
endangered species, necessary wildlife habitat)" ); 30
V.S.A. § 248a(j)(1) (providing that " [t]he Board
may ... issue a certificate of public good ... if the Board
finds that such facilities will be of limited size and scope,
and the application does not raise a significant issue with
respect to the substantive criteria of this section" ).
Additionally, the notice explained that, once the application
was filed, interested persons could submit comments and/or
seek to formally intervene in the proceeding within
twenty-one days, and that the Board would issue a final
determination on the application within forty-five days
" [u]nless [it] determines that [the] application
raises a significant issue under statutory criteria."
[¶5] About two months later, in late July
2014, VTel filed its formal CPG application with the Board.
The application included prefiled testimony, numerous
exhibits -- including all of those submitted with the
prefiling notice -- and a " project narrative"
outlining the nature and scope of the project and its
compliance with the relevant statutory criteria for projects
of limited size and scope under 30 V.S.A. § 248a(b)(3).
With respect to aesthetics, the application applied the
two-part Quechee test, named for this Court's
decision in In re Quechee Lakes Corp., 154 Vt. 543,
580 A.2d 957 (1990). VTel maintained that the project would
have no adverse effect as demonstrated by the evidence
showing that it would be minimally visible from most vantage
points or, alternatively, that any adverse effect would not
be undue. It asserted, in this regard, that the Bennington
town plan established a general policy in favor of improving
wireless services and did not identify any inconsistent
standards for the project site; that the tower would not
offend the sensibilities of the average person -- its height
was consistent with the " limited size and scope"
threshold established by statute in 30 V.S.A. §
248a(b)(3)(A)(i) and the " flush-mounted" antennae
design was less ...