Summary
The Vermont Supreme Court affirmed the Public Service Board’s grant of a certificate of public good to Rutland Renewable Energy, LLC, for a 2.3-megawatt solar facility in the Town of Rutland. The Court held that the Board acted within its discretion in finding no undue interference with orderly regional development and no undue adverse effects on aesthetics or historic sites. The decision also addressed the weight of municipal solar-siting standards and the effect of subsequent statutory amendments that were not retroactive.
Topics
Practice areas
Questions Presented
- Whether the Public Service Board correctly determined that the proposed solar facility would not unduly interfere with the orderly development of the region under 30 V.S.A. § 248(b)(1).
- Whether the Board correctly determined that the facility would not have an undue adverse aesthetic effect under 30 V.S.A. § 248(b)(5) and the modified Quechee test.
- Whether the Board correctly determined that the facility would not have an undue adverse impact on historic sites under 30 V.S.A. § 248(b)(5).
- Whether the Town's Solar Facility Siting Standards were entitled to controlling or deferential weight in the certificate-of-public-good proceeding.
Holdings
- The Board acted within its discretion in finding insufficient credible evidence that the project's localized impacts would rise to the level of undue interference with the orderly development of the region.
- Under the version of § 248 applicable to this proceeding, municipal recommendations and standards were advisory rather than controlling, and the Board was not required to defer to them or give them any particular weight beyond what it deemed due.
- The Board correctly determined that the project's adverse aesthetic effect was not undue.
- The Board correctly determined that the solar facility would not have an undue adverse impact on historic sites.
Key quotations
“We give great deference to the Board’s expertise and judgment and accord a strong presumption of validity to the Board’s orders.” (2016 VT 50, ¶ 8)
“An adverse impact on scenic and natural beauty is not undue if three conditions are met: First, the project must not violate a clear, written community standard intended to preserve the aesthetics or scenic, natural beauty of the area. Second, it must not offend the sensibilities of the average person. Finally, the applicant . . . must take generally available mitigating steps that a reasonable person would take to improve the harmony of the proposed project with its surroundings.” (2016 VT 50, ¶ 14)
“The burden the dissent would impose on an applicant is unreasonable, and probably unmeetable.” (2016 VT 50, ¶ 27)
Factual background
Rutland Renewable Energy proposed a 2.3-megawatt solar photovoltaic facility on approximately fifteen acres in the Town of Rutland. The site was an undeveloped meadow designated for industrial/commercial use in the Town's future land-use map, but it bordered roads, commercial and industrial uses, wooded land, and four homes; it also contained portions of wetlands and primary agricultural soils. The Town and neighboring landowners opposed the project based on regional development, aesthetic, historic-site, setback, and agricultural-soil concerns, relying in part on the Town's Solar Facility Siting Standards.
Procedural history
Rutland Renewable Energy, LLC petitioned the Public Service Board for a certificate of public good. The Town of Rutland and five adjoining landowners intervened, and a hearing officer recommended approval subject to mitigation measures. The Board issued the certificate on March 11, 2015, denied neighbors' motion for reconsideration, and the Town and neighbors appealed to the Vermont Supreme Court.