175 A.3d 1211
Vt.2017Background
- GLC sought a certificate of public good (CPG) to build a 500 kW net‑metered solar array in New Haven; Board Rule 5.100 (2014) and 30 V.S.A. § 248/§ 219a procedures governed the application.
- GLC provided a 45‑day advance notice and filed the formal application; the Town of New Haven submitted multiple rounds of comments arguing violations of § 248 criteria and town‑plan guidance limiting project size.
- GLC amended its site plan (notably relocating access roads) and submitted a Fast Track Interconnection Analysis (FTA) from Green Mountain Power (GMP); the project failed Criterion 3 of the FTA but GMP later filed an addendum concluding further study unnecessary.
- The Town filed substantial supplemental comments on September 17 asserting significant issues, including interconnection/system reliability concerns tied to the FTA Criterion 3 failure, and requested a technical hearing.
- The Board granted the CPG without holding a technical hearing, deemed the Town’s September 17 comments untimely, and relied on GMP’s addendum and the Department of Public Service’s concurrence regarding interconnection.
- The Vermont Supreme Court reversed and remanded: it held the Board erred in not considering the Town’s September 17 comments and remanded for at least a technical hearing on the interconnection/FTA issue and reconsideration of other unaddressed Town comments.
Issues
| Issue | Plaintiff's Argument (Town) | Defendant's Argument (Board/GLC) | Held |
|---|---|---|---|
| Whether the Board may decline to hold a hearing in a net‑metering case | Rule 5.100 as applied here effectively eliminates hearings; Board lacks authority to dispense with hearings in particular cases | Statute and Act 136 permit streamlined procedures and modified hearing requirements; rule is valid and within authority | Board has authority to modify hearing requirements; streamlining allowed, but not carte blanche to ignore significant issues |
| Whether the Board erred in treating the Town’s Sept. 17 comments as untimely | GLC’s application was not complete until GLC cured notice deficiency (Oct. 20), so Sept. 17 comments were timely | Application was complete earlier; comments untimely under rule deadlines | Court held the Board erred: Town’s Sept. 17 comments should have been considered because they were filed within the ten‑day window after the amended filing made the record complete |
| Whether the Board permissibly waived interconnection study requirements after FTA Criterion 3 failure | Town: GMP’s decision to forgo a system impact study despite failing Criterion 3 raises a significant issue requiring a hearing, discovery, and independent Board fact‑finding | GLC/GMP/Department: GMP addendum and Department engineering review show no system reliability issue; waiver appropriate | Remanded: waiver of Board Rule 5.503(A) and decision to forgo further study were insufficiently explained; technical hearing required on interconnection/FTA Criterion 3 issue |
| Whether earlier Town filings (before Sept. 17) required a technical hearing | Town: earlier 45‑day and initial comments raised significant § 248 issues necessitating hearing | Board/GLC: earlier comments were largely generalized/speculative and GLC’s evidence addressed the concerns; no hearing required | Court held earlier filings alone did not establish significant issues warranting a technical hearing, but Board must reconsider all Town comments on remand |
Key Cases Cited
- In re Rutland Renewable Energy, LLC, 147 A.3d 621 (Vt. 2016) (describing deferential standard of review for Public Service Board decisions)
- In re UPC Vt. Wind, LLC, 969 A.2d 144 (Vt. 2009) (Board engages in policy‑making and is accorded substantial deference)
- In re Green Mountain Power Corp., 648 A.2d 374 (Vt. 1994) (agency must explain its reasoning; expertise does not excuse conclusory determinations)
- In re Cont’l Tel. Co. of Vt., Inc., 549 A.2d 639 (Vt. 1988) (Board must independently evaluate expert evidence and make factual findings)