In re Petition of LK Holdings, LLC, 201 A.3d 373

LK Holdings filed a CPG application on December 9, 2016 for a 500 kW group net‑metered solar project in Whiting, VT and certified that adjoining landowners had been notified, but in fact provided no such notices at filing.
The Public Utility Commission (PUC) sent a December 16, 2016 memorandum requesting supplemental municipal screening information and circulated that memorandum to the service list (including adjoiners).
LK submitted supplemental materials and, belatedly, a notice to adjoining landowners on or about January 18, 2017 (notice dated Jan. 16/17). Missing appendices were also filed then.
Intervenors moved to dismiss the application as incomplete for failure to notify adjoining landowners and for missing materials; PUC dismissed the petition on May 22, 2017 as incomplete when filed (Dec. 9, 2016) and denied reconsideration.
The timing was outcome‑determinative because Act 99 revised the net‑metering rule effective Jan. 1, 2017; only CPG applications that were complete before that date could be reviewed under the pre‑2017 rule (under which LK’s project could qualify).

Issue	Plaintiff's Argument (LK)	Defendant's Argument (PUC / Intervenors)	Held
Whether the Dec. 9, 2016 application was "complete" despite no adjoiner notice	Application contained all substantive materials and thus was substantially complete and entitled to pre‑2017 rule treatment	Notice to adjoining landowners was a required part of the application; total failure to notify makes the filing incomplete	PUC: application incomplete when filed; Court affirmed
Whether LK’s Jan. 18, 2017 curative notice should relate back to Dec. 9, 2016 filing	Curative filing should relate back, preserving pre‑2017 status	Rule 2.208 bars relation back; cure date is the date last defect removed	PUC: cure did not relate back; Court affirmed
Whether dismissal was an excessive remedy for the notice defect	PUC should have stayed proceedings and allowed cure or intervenor participation	Timing was critical because rule change took effect Jan. 1, 2017; dismissal is consistent with precedent	PUC acted within discretion; dismissal affirmed
Whether the PUC could apply the revised net‑metering program via order before formal rule adoption	The August 2016 order was ineffective absent formal rulemaking; due process required formal rulemaking	Act 99 expressly authorized temporary adoption by order if final rules were not yet promulgated; robust notice and public process occurred	PUC permissibly relied on its interim order; Court affirmed

Smith v. Winhall Planning Comm'n, 436 A.2d 760 (Vt. 1981) (applicant’s rights vest only when a proper and complete application is filed)
In re Jolley Assocs., 915 A.2d 282 (Vt. 2006) (completed zoning application filed before regulatory change can vest rights)
Diel v. Dep't of Educ., 614 A.2d 1223 (Vt. 1992) (VAPA procedures generally provide sufficient process; due process may be satisfied by adequate notice and opportunity to be heard)
Parker v. Gorczyk, 787 A.2d 494 (Vt. 2001) (legislature may establish procedures for agency policy; more specific statute controls over general statutes)
In re Ross, 557 A.2d 490 (Vt. 1989) (incomplete application cannot establish vested rights under pre‑existing law)