In re Petition of Apple Hill Solar LLC (Libby Harris and Apple Hill Homeowners Association, Appellants)
On
Appeal from Public Utility Commission Anthony Z. Roisman,
Chair
L.
Brooke Dingledine of Valsangiacomo, Detora & McQuesten,
P.C., Barre, for Appellants.
Kimberly K. Hayden of Paul Frank Collins P.C., Burlington,
and Thomas Melone of Allco Renewable Energy Limited, New
York, New York, for Appellee.
Thomas
J. Donovan, Jr., Attorney General, and Benjamin D. Battles,
Solicitor General, Montpelier, for Appellee Agency of Natural
Resources.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
JJ.
ROBINSON, J.
¶
1. Neighbors of a proposed solar electric-generation facility
appeal a decision of the Public Utility Commission (PUC)
approving the issuance of a certificate of public good for
the project. At the heart of their appeal is a challenge to
the PUC's conclusions that this project-called the Apple
Hill project-would not unduly interfere with the orderly
development of the region and would not have an undue adverse
effect on aesthetics. Both of these conclusions rest in
substantial part on the PUC's conclusions that the
selectboard of the Town of Bennington took the position that
the Apple Hill project complied with the applicable Town
Plan, and that the 2010 Town Plan did not establish a clear,
written standard. Because the evidence and the PUC's
findings do not support these conclusions, we reverse and
remand.
¶
2. The following background is undisputed. In 2015, appellee
Apple Hill Solar LLC filed a petition with the PUC requesting
a certificate of public good (CPG) for a proposed 2.0
megawatt, grid-connected solar-electric generation facility
in Bennington.
¶
3. The project site is in the southwest corner of a Rural
Conservation District as defined in the Bennington Town Plan.
According to the Town Plan, Rural Conservation Districts are
characterized by considerable agricultural acreage, along
with extensive woodlands and low-density residential
development. The purpose of Rural Conservation Districts is
to preserve the open space and distinctive rural character of
the area while accommodating low-density residential
development in a way that avoids the need for public
water-supply and sewer systems. The Town Plan includes
specific design standards for the Rural Conservation
Districts, stating, "Development in this area cannot be
sited in prominently visible locations on hillsides or
ridgelines, shall utilize earth tone colors and
non-reflective materials on exterior surfaces of all
structures, and must minimize clearing of natural
vegetation."
¶
4. Appellants Libby Harris and the members of the Apple Hill
Homeowners Association (which includes Harris) live near the
proposed project site. Both Harris and the Homeowners
Association applied for, and were granted, permissive
intervention in the CPG proceeding.
¶
5. The Town of Bennington also intervened in the proceedings.
When it intervened in 2015, the Town argued that the project
should not be granted a CPG because it would unduly interfere
with the orderly development of the region and would have an
undue adverse impact on aesthetics, and in particular, would
"violate[] the clear, written community standards in the
Town Plan . . . to protect the high scenic quality of this
gateway area located in the Rural Conservation
District."
¶
6. In August 2017, after Apple Hill agreed to various changes
to mitigate the aesthetic impact of the project, the Town
selectboard changed its position, voting to "not oppose
Apple Hill on the grounds that the Project fails to comply
with the Town Plan in effect when the application was
filed."
¶
7. CPG proceedings for another proposed solar-electric
generation facility, called the Chelsea Solar project, which
would be located next to the Apple Hill project in the Rural
Conservation District, are relevant to this appeal. In
February 2016, the PUC held that the Chelsea Solar project
would violate clear, written community standards in the 2010
Bennington Town Plan. In re Chelsea Solar LLC, No.
8302, 2016 WL 722444, at *39 (Vt. Pub. Serv. Bd. Feb. 16,
2016).[1]Specifically, the PUC held that the Chelsea
Solar project would violate the following three requirements
in the Town Plan for development in the Rural Conservation
District: only limited residential development is permitted;
development may not be sited on prominently visible locations
on hillsides; and development must minimize the clearing of
natural vegetation.[2] Id. at *39-40. Accordingly, it
held that the Chelsea Solar project would have an undue
adverse effect on aesthetics and denied the petition for a
CPG for the project. Id. at *43. Chelsea Solar
appealed that decision to this Court in June 2017.
¶
8. In September 2017, Chelsea Solar filed a motion with the
PUC for relief from the February 2016 order in the Chelsea
Solar case, in support of which it attached a revised
proposal for the project. The PUC denied Chelsea Solar's
motion, but added that it "encourages Chelsea to file a
new petition reflecting its proposed . . . project and
proposes measures to achieve its prompt review." It said
that
we appreciate Chelsea's efforts to revise the Chelsea
Project and its desire to exercise common sense in response
to the Town Selectboard's vote to support the revised
Apple Hill project. To this end and to promote judicial
efficiency, the Commission encourages Chelsea to withdraw its
appeal with the Vermont Supreme Court and file a new petition
. . . .
Chelsea
Solar accordingly withdrew its appeal and filed a new
petition for a smaller project with more efficient solar
panels in approximately the same location as previously
proposed.
¶
9. Subsequently, in this Apple Hill matter, the hearing
officer issued a proposal for decision finding in pertinent
part that the project would not unduly interfere with the
orderly development of the region, as required under 30
V.S.A. § 248(b)(1), and would not have an undue adverse
effect on aesthetics or on the scenic or natural beauty of
the area, as required by 30 V.S.A. § 248(b)(5). Of
particular relevance to this appeal, the hearing officer
recommended that the PUC conclude that the project would not
violate any clear, written community standard-a key
consideration in the assessment of whether an adverse
aesthetic effect is undue pursuant to § 248(b)(5). He
said that neither stare decisis nor collateral estoppel
precluded the PUC from deciding here-unlike in Chelsea
Solar-that the Bennington Town Plan was not a clear,
written community standard.
¶
10. The Town withdrew from the Apple Hill proceeding between
the time when the hearing officer issued his proposal for
decision and when the PUC issued its decision.
¶
11. Harris and the Homeowners Association submitted comments
on the proposal for decision. They argued that the project
would unduly interfere with the orderly development of the
region, that the Town Plan contained a clear, written
community standard, and that the proposed Apple Hill project
would violate the Town Plan for the same reasons the
previously rejected Chelsea Solar project would have violated
it.
¶
12. The PUC largely adopted the hearing officer's
findings and conclusions and issued Apple Hill a CPG.
¶
13. On appeal, Harris and the Homeowners Association
(collectively "appellants") argue, based on the
PUC's holding in its Chelsea Solar decision,
that collateral estoppel and established precedent preclude
the PUC from concluding in this case that the proposed solar
project would not violate a clear, written community standard
reflected in the Bennington Town Plan. They also argue that
the PUC erred in holding that the Apple Hill project would
not unduly interfere with orderly development or have an
undue adverse effect on aesthetics, and that findings it made
in support of these determinations were clearly erroneous.
Apple Hill contends that appellants do not have statutory or
constitutional standing to appeal the PUC's decision, and
that the PUC's order was correct and should be affirmed.
¶
14. We conclude that appellants have statutory and
constitutional standing to appeal. We reject the arguments
that collateral estoppel or established precedent prevent the
PUC from reaching a different conclusion from its Chelsea
Solar decision as to whether the proposed solar project
violates a clear, written community standard in the 2010
Bennington Town Plan. Finally, we hold that the PUC's
legal conclusions as to whether the Apple Hill project would
unduly interfere with the orderly development of the region
under ...