In re Petition of VTel Wireless Inc., for a Certificate of Public Good, Pursuant to 30 V.S.A. Section 248a, for the Installation of Telecommunications Equipment in Bennnington, VT (Susan Beal and David Pearson, Appellant)
2015 VT 135
Vt.2015Background
- VTel Wireless sought a Certificate of Public Good (CPG) under 30 V.S.A. § 248a to install a 90-foot communications pole, equipment container, and underground power on Southern Vermont College land in Bennington to provide wireless service to underserved areas.
- VTel provided detailed prefiling notice, maps, photographic simulations, and an application asserting the project qualified as a facility of “limited size and scope” subject to expedited § 248a review focusing on aesthetics and floodway criteria.
- Adjoining landowners Susan Beal and David Pearson moved to intervene and requested a hearing, claiming the tower would be visible from their proposed residential development and depress its marketability and aesthetics; they appended letters from potential buyers and neighbors.
- The Public Service Department concluded the project raised no significant § 248a issue but reserved final recommendation pending ruling on intervention; VTel opposed intervention and a hearing, relying on its evidence showing minimal visibility and mitigation measures.
- The Public Service Board denied intervention (finding no “substantial interest”) and denied a hearing (finding appellants failed to raise a “significant issue”), issued the CPG conditioned on construction per submitted plans, and the appellants appealed.
Issues
| Issue | Beal/Pearson's Argument | VTel/Board's Argument | Held |
|---|---|---|---|
| Whether appellants raised a significant issue under § 248a (aesthetics) requiring a hearing | The tower would have an adverse aesthetic impact on their private development and could be avoided by relocating it ~1,200 ft; that private views are protected by § 248a aesthetics review | The evidence (viewshed maps, simulations, placement in wooded area, flush-mounted antennas) shows minimal visibility and reasonable mitigation; private aesthetic concerns do not supply a significant issue here | Court affirmed: appellants failed to show a significant issue under § 248a regarding aesthetics |
| Whether the Board erred in treating private landowners’ aesthetic concerns as irrelevant to § 248a review | Private aesthetic impacts on property and economic interest should be considered | Board focused on public-good/aesthetics standard under Quechee; it did consider appellants’ concerns but found them insufficient | Court declined to remand; even if private concerns are legally relevant, they did not raise a significant issue on this record |
| Whether the Board’s § 248a process and expedited review were followed properly | Appellants argued need for hearing to fully address alleged aesthetic impacts | VTel followed statutory notice and expedited-process procedures; Board applied Quechee test and assessed evidence | Court gave deference to Board’s discretionary judgment and found no abuse of discretion |
| Whether the Board’s explanation was inadequate | Appellants claimed inadequate explanation for rulings | Appellants failed to brief/argue this adequately on appeal | Court declined to address as inadequately briefed |
Key Cases Cited
- In re Quechee Lakes Corp., 580 A.2d 957 (Vt. 1990) (establishes two-step test for undue aesthetic impact under § 248)
- In re UPC Vermont Wind, LLC, 969 A.2d 144 (Vt. 2009) (discusses deference to PSB’s legislative, policy-making role and discretion in weighing alternatives)
- In re New Cingular Wireless PCS, LLC, 54 A.3d 141 (Vt. 2012) (addresses § 248a notice/due process and permissive intervention by adjoining landowners)