In re Application of Beach Properties, Inc. d/b/a Basin Harbor Club, for a Certificate of Public Good for an Interconnected Group Net-Metered Photovoltaic Electric Power System
2015 VT 130
Vt.2015Background
- Basin Harbor Club (BHC) applied for a certificate of public good (CPG) to install a 25-panel, pole-mounted, sun-tracking photovoltaic net‑metering system on a portion of a 20‑acre field near Mile Point Road in Ferrisburgh.
- Adjoining landowners, including Mary McGuire and Douglas Grover, received notice and submitted comments and requests for a hearing; McGuire and Grover submitted extensive objections addressing 30 V.S.A. § 248(b) criteria (aesthetics, property values, EMF/glare, consistency with town plan).
- The Public Service Board (Board) directed BHC to respond to commenters and ordered additional filings (including a solar glare analysis) in response to concerns raised by neighbors.
- The Board granted the CPG, applying the Quechee test and finding adverse but not undue aesthetic impact; it set 10 days for motions for reconsideration and 30 days for appeals.
- McGuire filed a timely motion for reconsideration but did not formally move to intervene; the Board dismissed her motion solely on the ground she lacked party status. McGuire appealed; Grover’s appeal was untimely and dismissed for lack of jurisdiction.
- The Supreme Court held McGuire was a de facto party based on her receipt of notice, active and substantive participation, the Board’s responses treating her submissions as merits‑level, and her personal stake; it reversed and remanded for the Board to consider reconsideration on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a non‑intervening commenter may appeal / file reconsideration when treated as a party | McGuire: She reasonably believed she was a party given the notice language, she actively participated, and the Board treated her as such | BHC: Formal intervention was required; without party status she lacked standing and her motion did not toll appeal period | Court: De facto‑party doctrine applies — McGuire was a de facto party; Board erred dismissing motion for lack of party status; remand to consider motion on merits |
| Whether Grover’s appeal was timely | Grover: (argued on merits) | BHC: Grover’s reconsideration was untimely and failed to file required original; appeal therefore untimely | Court: Grover’s motion was untimely; appeal dismissed for lack of jurisdiction |
| Whether notice and Board practice obligated explaining intervention procedures to adjacent landowners | McGuire: Notice implied she was a required party and did not explain distinction between commenting and intervening | BHC: Standard rules allow intervention; notice complied with net‑metering form requirements | Court: Contextual factors (notice phrasing, list of notified parties, Board’s engagement) support equitable application of de facto‑party status; not a broad holding that notice always must explain intervention |
| Whether treating a participant as de facto party prejudices other parties | McGuire: No prejudice to BHC; BHC fully responded and had ample opportunity to address issues | BHC: Lack of formal intervention could prejudice procedural rights | Court: No showing of prejudice; equities favor recognizing de facto party status in these limited circumstances |
Key Cases Cited
- Marino v. Ortiz, 484 U.S. 301 (establishes rule that only parties or those who properly become parties may appeal)
- SEC v. Forex Asset Management, LLC, 242 F.3d 325 (sets out a three‑part test for de facto party standing: participation, equitable factors, and personal stake)
- In re Oshansky, 804 A.2d 1077 (recognizes de facto party where court treated non‑movant as party and respondent had personal stake)
- Carhart v. Carhart‑Halaska Int’l, LLC, 788 F.3d 687 (permitting appeal where litigant participated fully though did not formally intervene)
- In re Siler, 571 F.3d 604 (district court effectively treated non‑movants like intervenors; appeal permitted)
- Curtis v. City of Des Moines, 995 F.2d 125 (nonparty who actively participated and had an interest may appeal)
- Corbett v. Related Cos. Ne., Inc., 677 N.E.2d 1153 (state recognition of limited circumstances allowing nonparty appeals where nonparty intervened in fact)
- Federated Mut. Ins. Co. v. McNeal, 943 So. 2d 658 (permitting appeal by nonparty insurer that participated and was effectively treated as intervenor)