In re Petition of Rutland Renewable Energy, LLC for Certificate of Public Good Pursuant to 30 V.S.A. § 248
147 A.3d 621
| Vt. | 2016Background
- Rutland Renewable Energy (RRE) sought a § 248 certificate of public good (CPG) to build a 2.3 MW ground‑mounted solar array on ~15 acres in the Town of Rutland adjacent to several residences; site is designated industrial/commercial in the Town plan but includes primary agricultural soils and some wetlands.
- Town of Rutland and five neighboring landowners intervened, challenging the Board’s CPG on grounds that the project would unduly interfere with orderly regional development (§ 248(b)(1)) and would have undue adverse effects on aesthetics and historic sites (§ 248(b)(5)).
- The Town had recently adopted non‑zoning Solar Facility Siting Standards (supporting plan) prescribing setbacks, prohibiting siting on primary agricultural soils, and other restrictions; the project violated several of those standards.
- A Public Service Board hearing officer recommended approval with mitigation (vegetative screening, additional measures); the Board adopted the recommendation with some modifications and granted the CPG; Town and neighbors appealed.
- The Supreme Court applied a deferential review to the Board’s factual findings and affirmed: it held (1) the record lacked credible evidence of regional impacts sufficient to defeat § 248(b)(1); (2) under the modified Quechee test the adverse aesthetic impact was not “undue” given mitigation and the Board’s view of the Town standards; and (3) there was no undue adverse impact on historic resources based on expert testimony and the State Historic Preservation review.
Issues
| Issue | Town/Neighbors' Argument | RRE/Public Service Board Argument | Held |
|---|---|---|---|
| Whether the project “will not unduly interfere with the orderly development of the region” (§ 248(b)(1)) | Town: Board failed to give the Town’s siting standards proper weight; project would interfere with orderly regional development and undermine Town plan | Board/RRE: impacts are primarily local; no credible evidence of regional interference; Board gave due consideration to municipal recommendations | Affirmed: lack of evidence of regional impacts; Court did not decide weight of Town standards but upheld Board’s conclusion under deferential review |
| Whether project has an undue adverse effect on aesthetics (§ 248(b)(5)) | Town/Neighbors: project violates Town’s clear written community standards (setbacks), offends neighbors’ sensibilities, and mitigation (larger setbacks/alternate sites) was not adequately considered | Board/RRE: Quechee test satisfied — community standards inapplicable here (not enacted zoning; supporting plan setbacks are de facto zoning), average‑person test applied objectively, and mitigation (screening + additional measures) adequate | Affirmed: Board permissibly modified Quechee application, considered neighbors' views, and found impacts not undue given mitigation |
| Whether applicant had to show alternative sites or smaller project to mitigate aesthetic impacts | Neighbors: applicant should have demonstrated lack of reasonable alternative sites or proposed smaller setback/array | RRE/Board: proposal already used available land; opponents bore initial burden to present concrete alternatives; applicants not required to survey every other town site | Affirmed: Halnon distinguished; burden to show feasible alternatives rests on opponents; no adequate alternative proposal was put forward |
| Whether project will have an undue adverse effect on historic sites (§ 248(b)(5)) | Neighbors: historic‑resource impacts and cumulative effects not adequately addressed; Town standards impose stricter protections | RRE/Board: historic preservation expert and State Division for Historic Preservation found no undue adverse effect; mitigation and review adequate | Affirmed: record supported Board’s finding of no undue adverse effect on historic resources |
Key Cases Cited
- City of S. Burlington v. Vt. Elec. Power Co., 133 Vt. 438 (1975) (municipal enactments are advisory rather than controlling under § 248; Board must give municipalities opportunity to be heard)
- In re UPC Vt. Wind, LLC, 185 Vt. 296 (2009) (deferential review of Board; Quechee/§ 248 regional development analysis and application of community standards)
- In re Halnon, 174 Vt. 514 (2002) (applicant may need to justify not using less visually intrusive locations on its property; burden issues addressed)
- In re Cross Pollination, 191 Vt. 631 (2012) (mem.) (approval of Board’s use of Quechee aesthetic test in § 248 context)
- In re Goddard College Conditional Use, 198 Vt. 85 (2014) (mem.) (opponent bears insufficient evidence burden when asserting feasible alternative sites without proof)
- In re VTel Wireless Inc., 201 Vt. 1 (2015) (Board may consider neighbors’ vantage points but applies an objective average‑viewer standard in Quechee analysis)