Appeal from Public Utility Commission James Volz, Chair
R. Tarrant and Ryan P. Kane of Tarrant, Gillies &
Richards, Montpelier, for Appellant.
Stephanie B. Hoffman, Special Counsel, Montpelier, for
Appellee Public Service Department.
Ellen Hill of Hill Attorney PLLC, Middlebury, for
Intervenor/Appellee Matthew Daniels, and Adam Lougee,
Middlebury, for Intervenor/Appellees Town of Whiting and
Addison County Reginal Planning Commission.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Applicant LK Holdings LLC appeals the Public Utility
Commission's dismissal of its application for a
certificate of public good for a proposed group net-metered
photovoltaic electric power system. The Commission dismissed the
petition as incomplete because applicant failed to provide
notice to adjoining landowners that its application had been
filed. We affirm.
2. On June 16, 2016, applicant notified state, regional, and
municipal entities as well as adjoining landowners of its
intent to seek a certificate of public good (CPG) to
construct and operate a 500-kilowatt solar photovoltaic group
net-metered system in Whiting, Vermont. On December 9, 2016,
applicant filed its CPG application with the Commission. The
application certified that notice of the filing had been
provided to adjoining landowners as required by Commission
rule. See Regulations Pertaining to Construction and
Operation of Net Metering Systems § 5.110(C)
[hereinafter Former Rule 5.100],
[https://perma.cc/NA8X-85P8] (requiring that upon filing of
CPG application, applicant must notify state and local
authorities and "shall also provide notice to . . . the
landowners of record of property adjoining the project
site(s) that the application has been filed with the
Commission"). However, applicant did not actually
provide notice of the filing to any of the adjoining
landowners at that time.
3. In a December 16, 2016 memorandum, the Commission directed
applicant to submit information concerning the project's
compliance with any municipal bylaws or ordinances that
contained screening requirements "to complete its
application for the [Commission's] review." The
Commission stated that it would begin its review of the
project upon receipt of the requested information and
indicated that any comments on the application were due no
later than twenty-one days after the requested information
was filed. The Commission sent its memorandum to all
interested persons and entities on the service list for the
docket, including the adjoining landowners.
4. Applicant filed the requested supplemental information on
December 23, 2016. Over the next several weeks, the Division
for Historic Preservation, the Agency of Natural Resources,
and the Department of Public Service filed comments regarding
the application, and the Addison County Regional Planning
Commission and the Town of Whiting moved to intervene and
requested a hearing on orderly development and aesthetics. In
its letter to the Commission, the Department noted that two
appendices-maps and a photographic inventory-were missing
from the application, and asserted that such information was
necessary for the Department to complete its review.
5. On January 18, 2017, applicant filed a copy of its notice
to adjoining landowners that its CPG application had been
filed. The notice is dated January 16, 2017; however,
applicant states in its brief that the notice was actually
sent the following day. Applicant also filed the missing
appendices on January 18.
6. Adjoining landowner Matthew Daniels filed a motion to
intervene on January 24, 2017. Three days later, Daniels, the
Addison County Regional Planning Commission, and the Town of
Whiting filed a joint motion to dismiss the CPG application
as incomplete because applicant had failed to notify
adjoining landowners and because the application was missing
critical information regarding orderly development and
7. After soliciting comments from applicant and other parties
regarding the motions, the Commission granted the motion to
dismiss on May 22, 2017. It ruled that the notice to
landowners and certification of such notice were a necessary
part of a complete application, and that applicant did not
satisfy these requirements until January 18, 2017. It
rejected applicant's argument that the Commission's
December 16, 2016 memorandum cured the lack of notice because
the rule placed the onus on the applicant to notify the
landowners and the December 16 memorandum did not give notice
of a complete application. The Commission therefore dismissed
the application without prejudice to refiling under the
revised net-metering rule that took effect on January 1,
8. Applicant filed a motion to reconsider the dismissal,
which the Commission denied. This appeal followed.
Standard of Review
9. Like the recent case of In re Stowe Cady Hill Solar,
LLC, this appeal requires us to review the
Commission's interpretation of its own completeness rule,
a rule that is both substantive and procedural. 2018 VT 3,
¶¶ 15-21, Vt., 182 A.3d 53. In such cases, we will
"defer to an agency's interpretation of its own
regulation, as long as that interpretation is consistent with
the statute that authorized promulgation of the regulation in
question" and is consistently applied. Id.
¶ 20. As discussed below, we hold that the
Commission's interpretation of its rules here was
consistent with statute and prior precedent, and is therefore
entitled to deference.
10. On appeal, applicant argues that the December 9, 2016 CPG
application was substantially complete despite the lack of
notice to landowners because it contained testimony and
exhibits addressing all of the substantive CPG criteria.
Because the application was substantially complete when
filed, applicant argues, applicant had a vested right to
proceed under the 2016 version of the net-metering rule.
Applicant further argues that even if the application was not
complete in December, the Commission's rules should be
construed to allow its January 18, 2017 curative filing to
relate back to the original application filing date.
Applicant also claims that dismissal was an inappropriate
remedy for the notice defect. Finally, ...