Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Petition of Stowe Cady Hill Solar, LLC

Supreme Court of Vermont

January 12, 2018

In re Petition of Stowe Cady Hill Solar, LLC

         On Appeal from Public Utility Commission James Volz, Chair

          William J. Dodge and Joshua D. Leckey of Downs Rachlin Martin PLLC, Burlington, for Appellant.

          Stephanie B. Hoffman, Department of Public Service, Montpelier, for Appellee.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          CARROLL, J.

         ¶ 1. Stowe Cady Hill Solar (Cady Hill) applied to the Public Utility Commission[1] for a certificate of public good to construct a group net-metered solar array in the Town of Stowe. The Commission dismissed Cady Hill's application after finding that the application was incomplete because two adjoining landowners were not given notice that the application had been filed contemporaneous with that filing. We hold that Cady Hill's application meets the completeness requirement as that requirement has been applied in the Commission's prior decisions and, therefore, the application should not have been dismissed. We reverse and remand to the Commission for further proceedings in accord with this opinion.

         ¶ 2. We begin with an overview of background information important to this appeal. A net-metered system is an electricity producing system of up to 500 kW powered by a renewable energy source that operates alongside an existing electricity distribution network. 30 V.S.A. § 8002(16). The energy produced by the net-metered system is fed into the existing distribution network and serves to offset the cost of the electricity used by the owner of the net-metered system. A group net-metered system is a system in which multiple customers of a single electricity company combine their electric meters and use the electricity produced by the net-metered system to offset their group electric costs. Id. § 8002(10). Because a net-metered system connects with the existing electric grid, the Commission must grant a net-metered system a certificate of public good (CPG) before it may be constructed. 30 V.S.A. § 231(a) (stating Commission has authority to grant CPG); id. § 248(a)(2) (stating CPG is required before site preparation begins on electricity generating facility except for facilities designed for entirely onsite use).

         ¶ 3. The Legislature overhauled the statutory framework governing CPG approval for net-metered systems in 2014, with an effective date of January 1, 2017. 2013, No. 99 (Adj. Sess.), § 2. This legislative overhaul required the Commission to amend Public Utility Commission Rule 5.100, which implements the statutory CPG approval process and sets out the specific standards and procedures that apply to issuance of a CPG for a net-metered system. Like the revised statutory framework under which it was promulgated, the new Commission Rule 5.100 became effective on January 1, 2017.

         ¶ 4. The new rule includes two provisions that are especially relevant in this case. First, under new Rule 5.100, a net-metered system between 150 and 500 kW must be located on a "preferred site" to obtain a CPG. Construction and Operation of Net Metering Systems § 5.103, Code of Vt. Rules 30 000 5100, http://www.lexisnexis.com/hottopics/michie/ [hereinafter Rule 5.100]; Rule 5.100 § 5.104. The rule lists the specific kinds of locations that qualify as preferred sites, including brownfields, landfills, and sites previously used for mineral extraction and upon which all required reclamation activities are complete. Rule 5.100 § 5.103. The prior version of Rule 5.100 did not include a comparable siting limitation.

         ¶ 5. The new rule also provides that the Commission will review "pre-existing" net- metered system applications according to the version of Rule 5.100 in place at the time the application is filed. Rule 5.100 § 5.125(B). To qualify as a pre-existing application, the application must "have a complete CPG application filed with the Commission prior to January 1, 2017." Rule 5.100 § 5.125(A)(1); see also 2013, No. 99 (Adj. Sess.), § 10(f) ("30 V.S.A. § 219a and rules adopted under that section shall govern applications for net metering systems filed prior to January 1, 2017."). Thus, the Commission will review a CPG application for a new net-metered system under the prior version of Rule 5.100 if the application was filed before January 1, 2017, and the application is "complete" under the agency's own definition of that term. In turn, an application filed before the new rule became effective can qualify for a CPG if it meets the criteria of the old rule even if it would not qualify under the new rule.

         ¶ 6. The agency's definition of completeness is derived from the interplay of two separate Commission rules. The old version of Rule 5.110(C), which would apply to an application filed before the end of 2016, provides as follows:

Upon receiving an application under this subsection, [Commission] staff will review the application for completeness. If the application does not substantially comply with the application requirements set forth herein, the Clerk of the [Commission] will inform the applicant of the deficiencies. Upon submission of all information necessary to address the deficiencies, the Clerk of the [Commission] shall notify the applicant that the filing is complete.

         Regulations Pertaining to Construction and Operation of Net Metering Systems § 5.110(C), http://puc.vermont.gov/sites/psbnew/files/doc_library/5100-PUC-nm-adopted-2013_0.pdf [https: //perma.cc/N5E3-HLUM] [hereinafter Prior Rule 5.100]. At the same time, Rule 2.208, which remains unchanged from its 2016 iteration, reserves to the Commission the general authority to reject substantially defective or insufficient filings, stating that "[a] filing is substantially insufficient if, inter alia, it fails to include all material information required by statute or rule." Board Rules: Rules of Practice § 2.208, Code of Vt. Rules 30 000 2000, http://www.lexisnexis.com/hottopics/michie/.

         ¶ 7. This brings us to the facts of this case. Cady Hill sought a CPG for a 496 kW photovoltaic group net-metered system in the Town of Stowe and filed its application for the same on December 30, 2016-just two days prior to the new rule's effective date. The site of the proposed development is not one of the enumerated sites that qualify as preferred under new Rule 5.100, though the location is not a bar to a CPG under the prior version of the rule. For this reason, Cady Hill sought review under the old version of Rule 5.100 by means of the new rule's provision exempting pre-existing applications from the revisions to the rule.

         ¶ 8. The pre-2017 version of Rule 5.100 requires a developer to give adjoining landowners two kinds of notice that the developer is seeking a CPG for a net-metered system: advance notice and notice that an application has been filed. The developer must give advance notice to adjoining landowners, as well as municipal and regional entities and state agencies, that the developer intends to file a CPG application 45 days before filing the application. This advance notice must include "sufficient detail about the proposed project(s) to allow the parties receiving the notice to understand the impact of the project(s) on the interests of those ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.