210 A.3d 1230
Vt.2019Background
- In 2012 Travis Belisle erected a 132-foot meteorological tower on his Swanton property without obtaining a certificate of public good (CPG). Neighbors complained in 2015 and DPS investigated.
- DPS sued; the PUC granted DPS partial summary judgment that Belisle violated the CPG requirements and scheduled a penalty hearing. Belisle denied having concrete plans for a grid-connected wind facility when he installed the tower.
- The PUC found the tower was a "temporary meteorological station" under 30 V.S.A. § 246 because it was installed to assess site suitability for a potential grid-connected wind project and imposed a $10,000 fine under 30 V.S.A. § 30(a)(1).
- On appeal the Vermont Supreme Court held (1) § 246 governs CPGs for temporary meteorological stations as an independent scheme (not § 248), and (2) the "reasonably related" test determines whether a tower falls under § 246 jurisdiction.
- The Court affirmed liability (tower was reasonably related to potential grid-connected development given actions/statements: planned-community filing, consulting VERA, and stated purpose of assessing wind for turbines) but reversed the penalty ruling and remanded for recalculation under § 30(a)(2).
Issues
| Issue | Plaintiff's Argument (Belisle) | Defendant's Argument (DPS/PUC) | Held |
|---|---|---|---|
| Which statute governs CPGs for temporary meteorological towers | § 246 governs; but PUC erred if it relied on § 248 to impose liability | § 246 incorporates § 248 criteria and PUC may apply § 248 | Held: § 246 is the governing, independent statutory scheme; § 248 applies only as incorporated by § 246 |
| When does a tower fall under PUC jurisdiction (definition of "temporary meteorological station") | No CPG required unless there were concrete plans for a grid-connected project | Intent to assess suitability for a grid-connected project (reasonable relation) triggers § 246 | Held: Use an objective "reasonably related" test; tower was reasonably related based on filings, consultations, and stated purpose, so CPG was required |
| Effect of declaratory/after-the-fact denials of intent | Post hoc denials of specific plans should prevent liability | Subjective denials are relevant but assessed objectively in context; cannot defeat summary judgment if objective facts show reasonable relation | Held: Subjective denials do not create a material fact issue when objective facts point to reasonable relation |
| Proper penalty provision and amount | If violation is § 246, penalty should be under § 30(a)(2) (max $10,000 unless substantial harm) | PUC applied § 30(a)(1) (penalties for § 248 violations) and imposed $10,000 | Held: Penalty must be calculated under § 30(a)(2); remanded to PUC to determine whether substantial harm occurred and to recalculate penalty accordingly |
Key Cases Cited
- Farrell v. Vermont Electric Power Co., 68 A.3d 1111 (Vt. 2012) (summary judgment standard and appellate review of PUC summary judgment)
- In re UPC Vt. Wind, LLC, 969 A.2d 144 (Vt. 2009) (deference to PUC expertise; prior discussion of jurisdiction over meteorological towers)
- Citizens Utilities Co. v. Public Service Board, 769 A.2d 19 (Vt. 2000) (standards for PUC penalty determinations)
- Verizon New England Inc. v. Public Service Board, 795 A.2d 1196 (Vt. 2002) (deference to agency statutory interpretation absent compelling error)
- Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985) (post-hoc intent denials cannot automatically defeat summary judgment)
- Pierce v. Riggs, 540 A.2d 655 (Vt. 1987) (consideration of the entire record on summary judgment)