In re Petition of New Haven GLC Solar, LLC, for a Certificate of Public Good, Pursuant to 30 V.S.A. §§ 219a and 248, to Install and Operate a 500kW Group Net-Metered Solar Electric Generation Facility in New Haven, Vermont (Town of New Haven, Appellant)
APPEALED
FROM: Public Service Board DOCKET NO. NMP6369
James
Volz, Chair.
Cindy
Ellen Hill of Hill Attorney PLLC, Middlebury, for Appellant.
Leslie
A. Cadwell of Legal Counselors & Advocates, PLC,
Castleton, for Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
JJ.
ENTRY
ORDER
In the
above-entitled cause, the Clerk will enter:
Reversed
and remanded for further consideration as set forth
herein.
Concurring: John A. Dooley, Associate Justice, Marilyn S.
Skoglund, Associate Justice, Beth Robinson, Associate
Justice, Harold E. Eaton, Jr., Associate Justice.
Paul
L. Reiber, Chief Justice.
¶
1. The Town of New Haven appeals the Public Service
Board's issuance of a certificate of public good (CPG) to
New Haven GLC Solar, LLC (GLC) to construct a net-metered
solar array within the Town. The Town asserts that the Board
acted arbitrarily and in excess of its lawful authority by
issuing the CPG without holding a hearing on significant
issues raised by the Town, without giving due consideration
to the Town's recommendations or the town plan, and
without following its own mandatory regulations regarding
interconnection procedures. We reverse the Board's
issuance of the CPG and remand the matter for the Board to
consider the Town's comments that it deemed to be
untimely filed and to hold a technical hearing, at minimum,
on the interconnection issue discussed below.
¶2.
We first provide some helpful background information before
examining the procedural history of this particular case. A
net-metering system is an electric generator that is powered
by renewable (e.g., solar, wind, water) energy and is
interconnected with the local utility electric distribution
network. The primary purpose of a net-metering facility is to
offset the electric usage of a utility customer by either
turning the customer's electric meter backwards for each
kilowatt hour of electric energy produced or giving utility
bill credits that are calculated by multiplying the
customer's electric retail rate by the kilowatt hour of
energy the net-metering facility produces. Because these
systems are electric generators that interconnect with the
local electric utility, they are subject to the Board's
jurisdiction under 30 V.S.A. § 248 with respect to the
issuing of CPGs.
¶
3. In 1998, the Legislature first authorized the Board to
implement a net-metering program "by rule or order
standards and procedures governing application for, and
issuance or revocation of a certificate of public good"
pursuant to the provisions of § 248. 1997, No. 136 (Adj.
Sess.), § 2(c).[1] Act 136 authorized the Board to waive the
requirements of §248 that are inapplicable to
net-metering systems and to "modify notice and hearing
requirements" of § 248 as the Board "deems
appropriate." Id. § 2(c)(1)-(2). In
addition, Act 136 required the Board to "seek to
simplify the application and review process as
appropriate." Id. § 2(c)(3). The Board
adopted the standards and procedures required by Act 136 by
order dated April 21, 1999, and codified them by adopting
Board Rule 5.100 in 2001.
¶
4. In 2011, the Legislature increased the maximum capacity of
net-metering systems from 250kW to 500kW. 2011, No. 47,
§ 1. In response, the Board modified the review and
approval procedures for these larger net-metering systems by
amending Rule 5.100, effective January 27, 2014. It is that
version of Rule 5.100 that governs GLC's application in
this case. Board Rule 5.110(C) established a 45-day advance
notice requirement for net-metering projects, similar to the
notice requirement required by § 248(f), and a 21-day
comment period on net-metering applications.
¶
5. In this case, on May 29, 2015, GLC sent parties entitled
to notice under Board Rule 5.110(C) 45-day advance notice of
its intent to file a CPG application to install a 500kW
net-metered solar array at a specified address on Vermont
Route 7 within the Town of New Haven on property locally
known as the Russell Farm. On July 10, the Town submitted a
response asserting, among other things, that the proposed
project would interfere with the orderly development of the
region, would be inconsistent with the land conservation
measures within the town plan, would result in a negative
economic impact and negative net social benefits for the
town, and would have a negative impact on soil and water. The
Town also argued that the proposed project did not comprise a
net-metering system under Board rules and thus could not be
considered under net-metering systems procedures.
¶
6. On July 13, GLC filed with the Board an application
seeking a CPG for the project pursuant to 30 V.S.A.
§§ 219a and 248. On July 18, the Town filed a
notice of appearance and statutory party
status.[2] On July 20, GLC filed supplemental
materials consisting of a revised site plan and supporting
testimony. On August 3, the Department of Public Service
filed a comment on the application stating that its review of
the proposed project did not reveal any significant issues
with the substantive criteria of § 248 upon which it
typically made recommendations, including orderly development
of the region, system stability and reliability, and
aesthetics. The Department noted, however, that the
project's access road, as indicated in the 45-day notice,
had been relocated in the application to another property
immediately north of the Russell Farm, presumably to avoid
adversely impacting the historical significance of the
Russell Farm complex, which was listed in the state register
of historic places. The Department recommended that GLC
confirm on the record that the relocation of the access road
would not significantly impact the applicable § 248
criteria. The Department also recommended that GLC confirm
that the project would not be visible from nearby residences
and that the CPG be conditioned on GLC filing a copy of a
Fast Track Interconnection Analysis (FTA) completed by the
local utility, Green Mountain Power (GMP), demonstrating
GMP's agreement that a system impact study was not
necessary and that the project would not adversely affect
system stability and reliability.[3]
¶
7. On August 6, the Town filed comments in which it
incorporated by reference its earlier comments, acknowledged
that notice to adjoining landowners had been adequate, and
stated that GLC's application should include an analysis
of any visual or noise impacts of the project on nearby
residences and should list changes to the project from the
45-day advance notice, including relocating the access
driveway. The Town also indicated that it was reserving its
right to comment further and present evidence on any changed
components of the project after town staff had sufficient
time to review them. On August 10, the Town filed a response
to the Department's comments, and requested a technical
hearing. The Town asserted that GLC's new proposal to
construct a twelve-foot wide, 1150-foot gravel access road
from a separate parcel was a substantial change that required
a new 45-day notice. The Town also stated that, as requested
by the Department, GLC should be required to analyze the
visual impacts of the project on neighbors. The Town further
expressed its disagreement with the Department that the
project did not present any significant concerns under the
§ 248 criteria, insofar as it was in direct
contravention of a provision of the town plan that suggested
limiting electrical generation facilities to those under
300kW.
¶
8. On September 8, GLC filed a second revised site plan and a
response to comments from the Department, the Town, and the
Agency of Natural Resources. GLC stated that the proposed
design changes were minor and would not have any significant
impact with respect to the criteria set forth in § 248.
As for the Department's comments, GLC stated that reports
from various experts demonstrated that the changes would not
significantly impact the § 248 criteria, that an
attached updated aesthetics review indicated there would be
little to no visibility of the project from adjoining
residences, and that GMP's attached FTA demonstrated the
project would not have an undue adverse impact on system
stability and reliability. With respect to the Town's
comments, GLC stated that none of the changes to its proposal
had the potential to significantly impact any of the
applicable § 248 criteria, that using the property
adjoining the project parcel to the north did not require
further notice because the adjoining property is completely
surrounded by previously noticed properties, and that the
plain language of the town plan concerning the size of solar
projects is suggestive rather than mandatory and does not set
absolute limitations. GLC asserted that a hearing was not
necessary for the Board to reach a final determination in
this matter.
¶
9. On September 14, the Town filed a letter stating that GLC
had not provided notice regarding the revised site plan to a
newly affected adjoining landowner. In response to the
Board's request, GLC filed letters stating that it had
provided a copy of the application to the newly affected
adjoining ...