219 A.3d 1295
Vt.2019Background
- Apple Hill Solar LLC sought a certificate of public good (CPG) in 2015 for a 2.0 MW solar facility sited in Bennington’s Rural Conservation District; the Town Plan for that district contains design standards (avoid prominent hillside/ridgeline siting, use earth tones/non-reflective materials, minimize clearing).
- Nearby landowner Libby Harris and the Apple Hill Homeowners Association intervened; the Town of Bennington initially opposed the project under 30 V.S.A. § 248(b)(1) and (b)(5) as violating clear, written community standards in the 2010 Town Plan.
- After Apple Hill proposed mitigations, the Town selectboard in August 2017 voted not to oppose the project on Town-Plan grounds; the PUC relied on that change and other evidence to conclude the Town Plan was not a clear, written community standard.
- The PUC granted the CPG; appellants argued collateral estoppel and precedent from an earlier PUC Chelsea Solar decision (which had found the Town Plan prohibited a similar project) precluded relitigation and that the Apple Hill project unduly interfered with orderly development and had an undue adverse aesthetic effect.
- The Vermont Supreme Court held appellants had standing, rejected collateral estoppel and automatic preclusion by precedent, but concluded the PUC’s conclusions—particularly reliance on the selectboard’s non-opposition and the finding that the Town Plan was not a clear written standard—were unsupported or clearly erroneous.
- The Court reversed and remanded for the PUC to reassess orderly-development and aesthetic § 248 factors without misattributing a Town position and to apply the Town Plan’s design standards as a potential clear, written community standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to appeal | Harris/Homeowners: permissive intervention and particularized aesthetic/property injuries suffice for appellate standing | Apple Hill: appellants lack constitutional/statutory standing because harms are generalized | Held: Appellants have statutory and constitutional standing; permissive-intervention finding supports particularized injury |
| Collateral estoppel (issue preclusion) | Appellants: PUC’s Chelsea Solar ruling that Town Plan is a clear written standard precludes relitigation | Apple Hill/PUC: issues differ or parties/privity differ so estoppel should not apply | Held: Collateral estoppel does not apply — Chelsea Solar did not have a full and fair opportunity (it withdrew appeal at PUC encouragement), so preclusion would be unfair |
| Stare decisis / agency precedent | Appellants: PUC should adhere to its Chelsea Solar precedent that Town Plan is a clear standard | PUC/Apple Hill: agency can depart from precedent and here evidence supports a different conclusion | Held: Agency not strictly bound by its prior decision, but any departure must be non-arbitrary and reasoned; PUC’s stated reasons failed on the record |
| Merits under 30 V.S.A. § 248(b)(1) & (b)(5) | Appellants: Project unduly interferes with orderly development and would have undue adverse aesthetic impacts because it violates Town Plan standards | PUC/Apple Hill: mitigation and Town selectboard’s non-opposition show the project does not unduly interfere and the Town Plan is not a clear written community standard | Held: PUC’s findings were unsupported/clearly erroneous: selectboard’s non-opposition does not establish Town approval or change of position; the PUC erred in declining to apply the Town Plan as a clear written community standard without adequate support. Remanded for reassessment applying the Town Plan standards and excluding impermissible weight on the selectboard’s non-opposition and misread deposition testimony. |
Key Cases Cited
- In re Rutland Renewable Energy, LLC, 147 A.3d 621 (Vt. 2016) (describing modified Quechee test for § 248 aesthetic review)
- Trepanier v. Getting Organized, Inc., 583 A.2d 583 (Vt. 1990) (sets collateral estoppel/issue-preclusion criteria)
- Summers v. Earth Island Inst., 555 U.S. 488 (2009) (aesthetic interests can establish standing)
- Consumer Credit Ins. Ass’n v. State, 544 A.2d 1159 (Vt. 1988) (administrative agencies may depart from precedent but must provide nonarbitrary reasons)
- In re Stowe Cady Hill Solar, LLC, 182 A.3d 53 (Vt. 2018) (agencies required to treat like cases alike and justify departures from past decisions)
- In re Cross Pollination, 47 A.3d 1285 (Vt. 2012) (standard of review and deference to PUC findings)