In re Petition of Apple Hill Solar LLC, 2021 VT 69

Background

Apple Hill Solar sought a CPG to build a 2.0 MW solar facility on a 27-acre site in Bennington’s Rural Conservation District (RCD); project required ~9.67 acres of tree clearing and would be visible in winter leaf-off from public and private vantage points.
PUC initially granted the CPG; this Court reversed in Apple Hill I and remanded, directing the PUC to assess orderly-development and aesthetic undue-impact issues against the Town Plan standards without relying on a mistaken representation of the Town’s position.
On remand the hearing officer recommended denial; the PUC adopted that recommendation, finding the project incompatible with the RCD’s rural character and in violation of a Town Plan design standard prohibiting development “sited in prominently visible locations on hillsides.”
Petitioner moved to amend its petition late (adding agricultural/sheep operations and other design changes); the PUC denied the amendment as untimely and effectively a new project.
This appeal challenged (inter alia) the amendment denial, whether Town Plan provisions constituted “clear, written community standards” under §248(b)(5) and land-conservation measures under §248(b)(1), the PUC’s use of the modified Quechee test without rulemaking, and whether greenhouse-gas benefits must be balanced against aesthetic harms.
The Court: affirmed the PUC’s denial of the amendment; held the broad “rural character” policies were too vague to bar the project but affirmed that the “prominently visible on hillsides” design standard is a clear, written community standard and that evidence supported a finding of prominent visibility; reversed in part and remanded for further PUC proceedings without reliance on the “incompatible with rural character” rationale.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Denial of motion to amend petition	Amendment rule permits changes “at any time”; PUC should have allowed update	Amendment was untimely, would materially change project, raise new harms, and was outside scope of remand	PUC acted within Rule 2.204(G) discretion to deny amendment; no error
Town Plan "rural character" language as a clear community standard (§248(b)(5))	Town Plan prohibits new commercial uses incompatible with rural character; thus project violates a clear, written standard	Town and regional statements are broad, aspirational, not sufficiently specific to be a clear standard	Majority: broad/rhetorical rural‑character language is not sufficiently specific to be a clear community standard; cannot alone justify denial
Town Plan design standard: "no development sited in prominently visible locations on hillsides" (aesthetics & orderly development)	Standard is vague; terms like “prominently visible” and “hillside” are uncertain	Standard is specific enough to be actionable; PUC may apply it	Court: this design standard is a clear, written community standard and a land‑conservation measure; PUC’s findings that the project would be prominently visible are supported by evidence
Use of modified Quechee (Act 250–derived) test without formal rulemaking	Quechee is an agency statement of general applicability and required VAPA rulemaking	PUC in quasi‑judicial role may apply developed precedent/tests without rulemaking	Court: PUC may apply the Quechee test in adjudication; no rulemaking required
Balancing greenhouse‑gas benefits against aesthetic harms	Greenhouse‑gas benefits should be weighed to override aesthetic harms under §248(b)(5)	Greenhouse‑gas impacts are a separate "due consideration" factor and not a statutory offset for aesthetics	Court: Statute does not require balancing greenhouse‑gas benefits to overcome an undue aesthetic impact; greenhouse‑gas analysis is distinct and not a reason to offset aesthetics

Key Cases Cited

In re Apple Hill Solar LLC, 219 A.3d 1295 (Vt. 2019) (prior remand instructing PUC to apply town‑plan standards and that town plans may be sources of clear community standards)
In re Rutland Renewable Energy, LLC, 147 A.3d 621 (Vt. 2016) (PUC may approve projects even if they violate clear local standards; §248 preserves PUC discretion)
In re UPC Vermont Wind, LLC, 969 A.2d 144 (Vt. 2009) (broad regional plan language about preserving rural character is not a clear, written community standard)
In re Chaves Act 250 Permit Reconsider, 93 A.3d 69 (Vt. 2014) (town plan aspirational language is nonregulatory and not an enforceable, specific prohibition)
In re Vt. Elec. Power Co., 895 A.2d 226 (Vt. 2006) (deference to PUC’s expertise and policymaking role under §248)
In re Kisiel, 772 A.2d 135 (Vt. 2000) (Act 250 context — slope terminology without objective measures may be nonactionable)
City of South Burlington v. Vt. Elec. Power Co., 344 A.2d 19 (Vt. 1975) (municipal zoning cannot control §248 projects; municipalities serve advisory role)
In re Denio, 608 A.2d 1166 (Vt. 1992) (determination of degree of adverse aesthetic effect rests with PUC)