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In re Petition of VTel Wireless, Inc.

Supreme Court of Vermont

November 20, 2015

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)

          On Appeal from Public Service Board. James Volz, Chair.

          Jon T. Anderson of Burak Anderson & Melloni, PLC, Burlington, for Appellants.

          William J. Dodge and Elizabeth Kohler of Downs Rachlin Martin PLLC, Burlington, for Appellee.

         Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


         SKOGLUND, J.

          [¶1] Appellants Susan Beal and David Pearson appeal from a decision of the Public

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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 Commission.

          [¶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

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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 ...

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