In re Petition of Rutland Renewable Energy, LLC for Certificate of Public Good Pursuant to 30 V.S.A. § 248, et al.
No. 15-230
Supreme Court of Vermont
April 29, 2016
2016 VT 50 | 147 A.3d 621
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
suspicion that defendant committed a traffic violation as soon as this crossing occurred.
Reversed and remanded for further proceedings.
Kevin E. Brown of Langrock Sperry & Wool, LLP, Middlebury, for Appellant Town of Rutland.
Kimberly K. Hayden and Danielle M. Changala of Downs Rachlin Martin PLLC, Burlington, for Appellee.
¶ 1. Dooley, J. The Town of Rutland (Town) and five adjoining landowners (neighbors) appeal from the Vermont Public Service Board‘s grant of a certificate of public good (CPG) under
¶ 2. The facts are undisputed. On December 20, 2013, RRE filed a petition requesting a CPG under
¶ 3. On March 3, 2014, neighbors and the Town were granted permissive intervention by the Board. The Board appointed a hearing officer to take evidence and render a proposed decision for the Board. The hearing officer took evidence on each of the relevant requirements for issuing a CPG contained in
¶ 4. The Board accepted most of the hearing officer‘s decision and rationale. As we discuss below, the Board somewhat modified the rationale on aesthetics and added a mitigation measure. The Board issued a CPG on March 11, 2015. Neighbors moved for reconsideration on March 26. The Board denied the motion on May 6, 2015, elaborating on its decision with respect to aesthetics. This appeal followed.
¶ 5. One significant part of the opposition of the Town and neighbors is their reliance on a document entitled Town of Rutland Solar Facility Siting Standards, which were adopted by the Town selectboard on October 22, 2013. The standards were drafted as an amendment to the
¶ 6. The standards, as originally adopted by the selectboard, contain a number of provisions that are related to this appeal and are summarized below:
- The Town desires to contribute its proportional share to meeting the renewable energy goals in Rutland County, as represented by its share of the land area of Rutland County — 2.08% — but “not to exceed that percentage contribution.” The siting standards are intended “to avoid and mitigate potential impacts of solar facility development, while promoting new installations in appropriate locations, and achieving proportionality in Rutland Town‘s contribution to renewable energy solutions.”
- Under General Standards for Energy Projects, the document states that the Town will consider supporting four types of energy development. None of the types include new solar generation facilities. Larger projects must be community-scale “that are designed to meet the expected needs of Rutland Town.”
- Ground-mounted solar projects of a generation capacity of 1.5 kW or greater “shall be located at least 200 feet from any property line and at least 200 feet from any public highway.” Renewable energy facility setbacks from property lines or occupied structures should be increased as necessary to mitigate identified aesthetics, historic sites, air and water purity, the natural environ-ment, the use of natural resources, and the public health and safety, with due consideration having been given to . . . Act 250 criteria . . . and nuisances or adverse impacts upon adjoining property owners.
- Ground-mounted solar energy facilities shall not be “located on primary agricultural soils.” Such facilities with a generation capacity greater that 100 kW shall “be located on nonagricultural land.”
- Ground-mounted solar energy facilities “shall not be located within 500 [feet] of a building designated as a historic building.”
It is undisputed that the project does not comply “with the property line, roadway, and historic structure setback requirements contained in the Standards.” The project site contains a variety of primary agricultural soils; the standards prohibit siting a ground-mounted solar facility on primary agricultural soils. The site has not, however, been used for agricultural production for 15 to 20 years.
¶ 7. In its brief to this Court, the Town raises two principal arguments: (1) the Board failed to accord due consideration to the Town‘s recommendations that the proposed facility will “unduly interfere with the orderly development of the region” in violation of
¶ 8. This Court applies a “deferential standard of review in appeals from the Public Service Board.” In re Green Mountain Power Corp., 162 Vt. 378, 380, 648 A.2d 374, 376 (1994). We recognize that:
When the Board evaluates a petition for a CPG under
30 V.S.A. § 248 , it is engaging in a legislative, policy-making process. The Board must exercise its discretion to weigh alternatives presented to it, utilizing its particular expertise and informed judgment. We give great deference to the Board‘s expertise and judgment and accord a strong presumption of validity to the Board‘s orders. We will affirm the Board‘s findings unless they are clearly erroneous, and an appellant bears a heavy burden of demonstrating clear error.
In re UPC Vt. Wind, LLC, 2009 VT 19, ¶ 12, 185 Vt. 296, 969 A.2d 144 (citations omitted). This is a highly deferential standard of review. Despite the limited standard of review, “we do not abdicate our responsibility to examine a disputed statute independently and ultimately determine its meaning.” In re MacIntyre Fuels, Inc., 2003 VT 59, ¶ 17, 175 Vt. 613, 833 A.2d 829 (mem.).
¶ 9. Under
¶ 10. We understand that the standard of review to address the Town‘s opening argument led to a backlash that persuaded the Legislature to amend
¶ 12. There was very little evidence of the project‘s regional impacts; virtually all the evidence and arguments concerned the impacts on and within the Town. Indeed, the Board found that the “impacts are primarily localized in nature.” It concluded that “while in some instances localized impacts may be found to interfere with orderly regional development due to their character or severity, there is no credible evidence in the record that demonstrates that the localized impacts from this particular project would rise to such a level.” Neighbors respond that the testimony of their expert witness, a landscape architect, was undisputed and showed the requisite regional impact. Essentially, the witness testified that when a project is “incompatible with the land uses in its setting,” it may propagate and have adverse regional impacts, explaining that “no one of those projects will likely have a regional impact, but sprinkling those projects around a town or region without regard to their cumulative impact will certainly have such an impact.” Therefore, aside from the prediction of future replication, there was no actual evidence of regional impact. The Board recited the testimony that no one project is likely to have a regional impact and acted well within its discretion in finding the assertion of regional impact inadequate and not persuasive. We affirm the Board‘s conclusion. Because of our resolution of this issue, we do not reach whether the Board gave “due consideration” to the recommendation of the Town as required by
¶ 13. We next turn to the second set of arguments raised by both the Town and neighbors regarding the undue adverse impact of the solar facility upon aesthetics and historic sites. These issues arise under
¶ 14. The Board has adopted a modified version of the Quechee test for determining aesthetic impact. The test is named after the decision that first adopted it, In re Quechee Lakes Corp., Nos. 3W0411-EB, 3W0439-EB, slip op. at 19-20 (Vt. Envtl. Bd. Nov. 4, 1985). We have approved the use of the Quechee test by the Board in reviewing a permit for a CPG. See In re Cross Pollination, 2012 VT 29, ¶ 10, 191 Vt. 631, 47 A.3d 1285 (mem.). The test first asks whether the project will have an adverse effect on scenic and natural beauty in the area in which it is located. Id. It is undisputed that the project here has such an effect. It then asks whether the adverse effect is undue. An adverse impact on scenic and natural beauty is not undue if three conditions are met:
First, the project must not violate a clear, written community standard intended to preserve the aesthetics or scenic, natural beauty of the area. Second, it must not offend the sensibilities of the average person. Finally, the applicant . . . must take generally available mitigating steps that a reasonable person would take to improve the harmony of the proposed project with its surroundings.
Id. (quotations omitted).
¶ 15. The Town and neighbors argue that none of these requirements are met.
¶ 16. The Board rejected these arguments, holding that each of the conditions was met and the adverse impact was not undue. With respect to the first element, the Board held that the setback requirements were de facto zoning requirements and could not be considered a community standard because they did not identify an area, and the specific resources in that area, to be protected.
¶ 17. With respect to the first reason, the Board relied upon
¶ 18. The Board‘s holding is a modification of the Quechee test because the test was created for Act 250 review, and such review does not generally supplant local zoning regulation. The Town and neighbors argue that the solar siting standards are “clear written community standards” by any definition of those terms. We might adopt that view if we were dealing with Act 250, where state and local regulatory review coexist. Here, we are dealing with a situation where, under existing law, municipalities have a different role. The effect of the solar siting standards under the theory of the Town and neighbors is to enable the Town to control solar generation siting through the Quechee test. We agree with the Board that a modification of the Quechee test is necessary to give the Board the necessary regulatory power. As the recent amendments to
¶ 19. We have a similar reaction to the Board‘s second rationale — that the community standard element is intended to allow the municipality to identify designated areas and resources that need protection. That was the rationale for the Board‘s decision on aesthetics in UPC Vermont Wind, 2009 VT 19, ¶ 126, and we
¶ 20. We next address the second element: that the project does not offend the sensibilities of the average person. The Board decided that this element was met largely based on the testimony of the expert witnesses. The Town and neighbors argue that the average person for purposes of the test should be put in the position of the close neighbors, and the testimony was that the neighbors’ sensibilities were offended. The Board responded that it had considered the visual impact on neighbors but, generally, the test considered the perspective of an average member of the public. It specifically stated that the Quechee test “require(s) that reasonable consideration be given to the visual impacts on neighboring landowners.”
¶ 21. We conclude that this issue is controlled by our recent decision in In re VTel Wireless Inc., 2015 VT 135, 201 Vt. 1, 134 A.3d 1227. In that case, neighboring property owners sought to intervene in a CPG proceeding for a communication facility under
¶ 22. We acknowledge that, in addition to considering neighbors’ interest, the Board ruled that the test definition of an average person meant “the average member of the viewing public who would see a particular project from the vantage point of the public“; that is, while the Board must consider all vantage points, it does so from an objective, as opposed to subjective and neighborly, perspective. The Board did, however, specifically address neighbors’ specific concerns and interests in its mitigation requirement. Thus, the Board stated:
[I]n this case RRE has sought to mitigate the aesthetic impacts of the Project through a vegetative screening proposal. Additionally, as discussed below, in recognition of the unique circumstances of the project, we have taken into account the Project‘s visual impacts on the surrounding property owners and have decided to impose some additional mitigation intended to soften those impacts to the extent possible without unreasonably altering the nature of the Project.
. . . .
The Hearing Officer correctly describes Board precedent that holds that while the aesthetics criterion does not guarantee that views of the landscape will never
change, it does require that reasonable consideration be given to the visual impacts on neighboring landowners.
The Board went on to impose mitigation requirements to lessen the impact on a particular neighbor additional to those proposed and one added by the hearing officer. We recognize that the Board has, to a certain extent, merged the second and third conditions to determine whether there is an undue adverse impact under the Quechee test, but our point is that its analysis looked separately at the impact on neighbors. We reiterate that this case has essentially the same posture as VTel Wireless, and we affirm it for the same reason.
¶ 23. Finally, on the matter of aesthetics, we consider the third element of the Quechee analysis: whether the applicant has taken generally available mitigation steps. The hearing officer ordered mitigation steps to screen the project from neighbors as proposed by RRE, with several additional measures. The Town and neighbors reargued the need for the full setback as required by the solar facility siting standard as a necessary mitigation measure. The hearing officer found that imposing the setback requirements, including the 500-foot setback requirement required for historic structures, would frustrate the project‘s purpose because it would cause a “very significant reduction in the size and capacity of the array.” Before the Board, neighbors argued that the hearing officer failed to consider their alternative request for a setback requirement smaller than that provided in the solar facility siting standards, but greater than the 64 feet proposed by RRE. The Board held that neighbors never proposed an alternative setback requirement. In response to the motion for reconsideration, the Board explained that a witness for neighbors stated “reducing the size of the project should be considered,” but never proposed an alternative setback requirement.
¶ 24. We conclude that the Board‘s ruling is well within its discretion, and the neighbors did not offer a fully formed proposal for an alternative setback requirement.
¶ 25. The dissent has raised a new argument on this prong of the Quechee test, not raised before the Board. The dissent argues that RRE did not address whether it could mitigate the adverse effect by moving the project to a new site “to improve the harmony of the proposed [project] with its surroundings.” Post, ¶ 55. The dissent notes that neighbors had argued that there were alternative sites in more developed, nonresidential areas of the town. Post, ¶ 54. In making this argument, the dissent argues that In re Halnon, 174 Vt. 514, 811 A.2d 161 (2002) (mem.), holds that an applicant must show that alternative sites that reduce the adverse aesthetic effect are unavailable.
¶ 26. We disagree that Halnon applies here. In that case, the applicant proposed to site a wind turbine in a location on his sixty-two acres of property that was directly within the view of the Green Mountains from a neighbor‘s residence. The neighbor argued, and the hearing officer for the Board concluded, that there were better locations on the property for the turbine. Finding that the applicant failed to demonstrate that the alternative locations on the property could not be used to mitigate the adverse aesthetic effect, the Board denied the CPG. We affirmed based on the standard of review. Id. at 518, 811 A.2d at 166.
¶ 27. In this case, the issue is not whether there is an alternative location on the property owned by RRE because the proposal already uses all the available land. The dissent seeks to expand Halnon into a burden to show that there is not a
¶ 28. The burden the dissent would impose on an applicant is unreasonable, and probably unmeetable. We can find no precedent that suggests that it is part of the Quechee test. Moreover, even if the evaluation of other properties were part of the Quechee test, the initial burden to demonstrate an alternative site is on the opponents, not on the applicant. In In re Goddard College Conditional Use, 2014 VT 124, 198 Vt. 85, 111 A.3d 1285, an Act 250 case, a neighbor argued that the applicant failed to show there were not alternative sites for a woodchip heating plant on its property. The only support for considering any alternative site was the neighbor‘s testimony that a representative of the applicant told her that the applicant had considered and rejected two or three other sites. Id. ¶ 12. We held that the testimony was inadequate to meet the neighbor‘s initial burden because the “neighbor presented no evidence that, for example, a suitable alternate site is ‘reasonably feasible’ (i.e., it would not frustrate the project‘s purpose or Act 250‘s goals), or that the alternative satisfies the . . . requirements.”5 Id. If anything, the very general testimony in support of an alternative site here is even weaker than that in Goddard College Conditional Use. By comparison, in Halnon, the neighbor identified specific alternative sites on the applicant‘s property to which the applicant could move the proposed project, the issue was fully raised and joined before the hearing officer, and the Board denied the CPG. We cannot conclude that neighbors’ argument was properly preserved, but, even if it was preserved, we would reject it. We therefore affirm the Board‘s conclusion that the project met the third element of the Quechee test.
¶ 29. Finally, we reject the argument that the project will have an undue adverse impact on historic sites. As with the Quechee test, the Board follows an Act 250 decision from the Vermont Environmental Board, In re Middlebury College, No. 9A0177-EB (Vt. Envtl. Bd. Jan. 26, 1990), to determine whether the project has an undue adverse impact on historic structures. This test has three parts: (1) whether there are historic structures on the site or nearby that are affected by the project; (2) whether the effect is adverse; and (3) whether the adverse effect is undue. In finding no undue adverse effect,
Affirmed.
¶ 30. Robinson, J., concurring. A critical unanswered question in this case is: what does the Board have to do in order to give “due consideration” to the recommendations of municipal legislative bodies and planning commissions pursuant to
¶ 31. Although I agree with the dissent that the Board indulged every inference against the limitations on siting solar facilities reflected in the Town‘s standards, and afforded no deference whatsoever to the solar siting standards of the town in which the project was to be located, I concur in the affirmance of the Board‘s decision because as currently written,
¶ 32. To the extent that this lack of deference reflects, as the Town argues, that the Board has “turned a deaf ear” to the concerns raised by towns in connection with solar projects, this Court is not empowered to rewrite the statute to respond to the Town‘s critique. Resolution of this heated tension between respect for municipal self-determination and the state‘s policy of aggressively promoting solar power generation falls to the Legislature.
¶ 33. The relevant statute provides that the Board, before issuing a certificate of public good, must find that the project “will not unduly interfere with the orderly development of the region with due consideration having been given to the recommendations of the municipal and regional planning commissions, the recommendations of the municipal legislative bodies, and the land conservation measures contained in the plan of any affected municipality.”
¶ 34. The black letter maxims of statutory construction add little to the mix. On the one hand, if “due consideration” is synonymous with “consideration,” then the inclusion of the qualifier “due” is superfluous. See Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 104, 624 A.2d 857, 860 (1993) (“[W]e presume that language is inserted in a statute advisedly” and thus “do not construe the statute ‘in a way that renders a significant part of it pure surplusage.‘” (citations omitted)).
¶ 35. On the other hand, if something more than mere “consideration” is required of the Board, the Legislature has offered no insight into what that may be. The Legislature knows how to require an agency to defer, conditionally or completely, to the judgment of another body. See, e.g.,
¶ 36. In fact, the permitting process pursuant to
¶ 37. This Court has never held that “due consideration” requires deference to the municipality. See, e.g., In re UPC Vt. Wind, LLC, 2009 VT 19, ¶ 117 (“Under the plain terms of the statute . . . the Board need only give ‘due consideration’ to the recommendations of the municipal and regional planning commissions in deciding if the project will not unduly interfere with the orderly development of the region.“) (quotation omitted); City of S. Burlington, 133 Vt. at 447, 344 A.2d at 25 (“‘Due consideration’ for municipal legislative bodies . . . at least impliedly postulates that municipal enactments, in the specific area, are advisory rather than controlling.“); In re Vt. Elec. Power Co., 131 Vt. 427, 435, 306 A.2d 687, 692 (1973) (“[T]he Board extended to the Planning Commission the same opportunity to be heard as the other parties and due consideration was given to the recommendations of the Planning Commission. Thus, on this record, we conclude the Board complied with the requirements of
¶ 38. The Legislature‘s 2015 changes to the statutes regulating solar siting, cited by the Town, likewise do not support the view that “due consideration” requires a modicum of deference to the Town‘s solar standards. The Town notes that in 2015, in response to growing controversy about municipal authority, or the lack thereof, in the siting of renewable energy generation projects, the Legislature changed the applicable law to provide more municipal input into the process. However, the changes cited by the Town do not alter the “due consideration” standard or suggest that it incorporates an element of deference.
¶ 39. Rather, the 2015 amendments reinforce the Town‘s limited role in light of the “due consideration” standard. The amendments gave the legislative body and planning commission for the municipality in which a facility is located party status in proceedings under
¶ 40. The Town‘s more modest position that the Board‘s “due consideration” requires, at a minimum, that it analyze the recom-mendations and limitations reflected in the Town‘s solar siting standards “in good faith” is unworkable for several reasons. First and foremost, as an appellate review body, I do not believe this Court is well positioned to evaluate the subjective good faith of members of the Board. And absent extraordinary circumstances, I personally would be loath to accuse another tribunal of “dishonesty of belief, purpose or motive.” See Black‘s Law Dictionary 166 (10th ed. 2014) (defining bad faith).
¶ 41. Second, the “bad faith” standard for evaluating “due consideration” would shift our focus from the ordinary questions we customarily consider on review: Were the Board‘s factual findings clearly erroneous? Did its conclusions flow from its findings? Did it err in interpreting the law? And was its determination within its broad discretion? A Board decision based on findings that are unsupported by the evidence, conclusions that do not flow from
¶ 42. Perhaps most important, evaluating the subjective motivations of the Board in this case would thrust this Court into the center of an intense policy debate and accompanying political maelstrom to address a contentious issue squarely within the province of the Legislature. The Town has painted a compelling picture of a Board aggressively pursuing solar project development in response to targets established by the Legislature for the development of renewable energy, and frustrated municipalities all around the state that feel “ignored” and “steamrolled” by the Board. Whether the current statutory scheme, which gives the Town the opportunity to have plans and recommendations considered by the Board but does not assign any particular weight to the Town‘s position, strikes the best balance between the goal of developing more renewable energy generation capacity in Vermont and respect for local regulation of land use is a political and policy question appropriately directed to the Legislature. In fact, as noted above, the Legislature is presently in the midst of considering a bill that squarely addresses the question. As this Court explained in another context, “If the provisions of [the statute] seem unfair or unjust, the remedy is to change the law itself. This can be effected by the legislature and should not be done by judicial fiat under the guise of statutory interpretation.” Riddel v. Dep‘t of Emp‘t Sec., 140 Vt. 82, 88, 436 A.2d 1086, 1089 (1981); see also Sirloin Saloon v. Dep‘t of Emp‘t & Training, 151 Vt. 123, 129, 558 A.2d 226, 229 (1989) (“[T]he policy issue is for the Legislature, not this Court, where as here the statute is plain on its face.“).
¶ 43. For these reasons, I concur in the majority‘s affirmance, and the majority‘s reasoning on all points, except that I do not join the majority‘s analysis of whether the Board complied with
¶ 44. Reiber, C.J., dissenting. I cannot agree with the majority that the Public Service Board gave due consideration to the Town of Rutland‘s recommendations for this solar energy project or sufficient regard to the Town‘s standards for preserving the project area‘s natural beauty and aesthetics, as required by law. The choice confronting the Board here was not between yielding to the Town‘s solar-energy standards or simply disregarding them. “Due consideration” of the Town‘s recommendations and concerns required a more balanced approach which, if properly applied, might well have produced a different result. Accordingly, I respectfully dissent.
¶ 45. The Board here relied heavily on this Court‘s observation in City of South Burlington v. Vermont Electric Power Co. that the “due consideration” which the Board must give to the Town‘s recommendations under
that municipal enactments, in the specific area, are advisory rather than controlling.” 133 Vt. 438, 447, 344 A.2d 19, 25 (1975). What this means in practical terms is essential to determine whether the Board fulfilled its statutory obligation. Here, the Town‘s “recommendations” were based largely on its standards. These were duly enacted by the Town‘s selectboard in 2013 when it became aware of plans for industrial-sized solar energy projects within the Town that its current land use plan, due to expire the following year, did not contemplate or address. In specifically declining, therefore, to address “the weight to be assigned to the Town solar facility siting standards,” the majority evades the most important issue for decision. Ante, ¶ 11.
¶ 46. It is not an issue that the Board itself evaded. On the contrary, a fair reading of the Board‘s decision makes it clear that it viewed the standards as little more than obstructionist and borderline illegitimate, and weighted them accordingly. The Board hearing officer focused on what he perceived to be a telling “inconsistency” between the designation of the project area as “Industrial/Commercial” in the Town‘s land use plan and the solar standards’ goal of preserving the prime agricultural land on which project was indisputably located. The hearing officer also questioned the standards’ failure to prohibit other kinds of development on agricultural soil, demanding to know why that would be acceptable while “the modest, temporary, and reversible impacts” from 542 free-standing solar arrays would not. And finally, the hearing officer concluded that the standards were essentially meaningless as applied to the project site because it had not actually been used for agricultural production for fifteen or twenty years.
¶ 47. The Board embraced the hearing officer‘s reasoning, stating: “Th[e] analysis reflects the due consideration afforded by the Hearing Officer of the Town‘s recommendations, and we agree with the Hearing Officer‘s reasoning.” The Board also emphasized that the standards’ siting requirements would “severely limit ground mounted solar development on existing land within the Town” and thereby frustrate “Vermont‘s legislated policy goals supporting the deployment of in-state renewable generation facilities.” Although the Town established that substantial land within the town remained available for solar energy projects, the Board found this to be “an unlikely proposition.” Testimony by a town lister and planning commission member, as well as a professor at Lyndon State College, that a poorly sited major energy facility would have an adverse domino effect on the region as a whole was summarily rejected as “speculative.”
¶ 48. In light of these findings, the Board‘s self-serving statement that merely because the hearing officer “chose not to follow the recommendations in the Standards does not compel the conclusion” that he failed to give them “due consideration” is disingenuous, at best. As shown, the hearing officer viewed the relevance, if not
¶ 49. This was error. It is one thing to evaluate the merits of a town‘s recommendations concerning the regional and environmental impacts of an energy project, quite another to question their legitimacy and underlying motivation. When a town appears before the Board and states its recommendations, “due consideration” at least requires a respectful, evenhanded, and balanced hearing. This did not occur. Furthermore, while the legislative policy in favor of renewable energy projects may constitute a valid consideration for the Board, it should not — as this decision implies — color every aspect of the decisionmaking process.
¶ 50. A similar failing informed the Board‘s consideration of the project‘s impact on the aesthetics and natural beauty of the area, under
¶ 51. In determining whether that impact would be undue, however, the Board again displayed a basic lack of fairness. The first criterion under the Quechee test is whether the project would “violate a clear, written community standard intended to preserve the aesthetics or scenic, natural beauty of the area.” Id. (quotations omitted). The Town again relied on its solar standards, developed expressly to address concerns about the effect of solar-energy facilities “on the town‘s residential neighborhoods and its scenic, natural, agricultural, and historic resources.” Once again, however, the hearing officer and the Board gave them little or no consideration. Their reasoning was that the solar standards did not represent “clear, written community standards for purposes of aesthetics review under
¶ 52. As a basis to deny consideration of the Town‘s solar standards, these arguments are decidedly weak. As the majority notes, the standards were formally adopted by the Town as a “supporting plan” to guide solar energy development under a process expressly authorized by statute.
¶ 53. Moreover, as noted, the standards were enacted to supplement the Town‘s land use plan; it is pointless, therefore, to suggest that they were undeserving of the Board‘s consideration because they contain conservation provisions not contained in the
plan. Nor is it any more logical to conclude that the standards were deficient in failing to identify “this particular parcel as a scenic resource“; they were written to apply to the town as a whole, and set forth general standards to preserve scenic beauty and natural resources — including rules relating to buffering, agricultural soils, and setbacks from highways and wetlands — that were directly applicable to the project site.
¶ 54. Equally one-sided was the Board‘s consideration of the third Quechee criterion — whether the applicant has taken all reasonable “mitigating steps” to ameliorate the project‘s adverse aesthetic effect. See Cross Pollination, 2012 VT 29, ¶ 10. The Town and neighbors here advanced a number of suggestions to mitigate the project‘s adverse impacts, ranging from alternative sites in more developed, nonresidential areas of the Town to a smaller project that would comply with the solar standards’ setback provisions.10 The Board, however, declined to consider any alternative sites, and summarily rejected the “feasibility” of any smaller project based on little more than the hearing officer‘s assertion that compliance with the setback standards would “undoubtedly ‘frustrate the project‘s purpose.‘”
¶ 55. This does not, in my view, demonstrate adequate consideration of whether the applicant has taken all reasonable steps to mitigate the project‘s adverse aesthetic impact. In In re Halnon, the Board denied a CPG for a wind turbine based, in part, on its finding that the applicant had failed to take reasonable mitigating steps to ameliorate the adverse aesthetic impacts of the project. 174 Vt. 514, 518, 811 A.2d 161, 166 (2002) (mem.). There, as here, the project‘s neighbors advanced a number of alternative sites, and the Board found that the applicant had “failed to present any compelling reason why he could not use an alternative site” as well as failed to take mitigating steps to improve the harmony of the proposed turbine with its surroundings. Id. at 515, 811 A.2d at 163. As the Board there observed, the applicant had the “burden
of proof in this case and has failed to demonstrate this mitigation would be unreasonable.” Id. at 515-16, 811 A.2d at 163.
¶ 56. On appeal to this Court, the applicant claimed the Board had abused its discretion and violated state policy in favor
¶ 57. The same failings were evident here. Apart from one witness‘s summary assertion that even the slightest reduction in the project‘s size would be unreasonable,12 the Board cited no evidence to show that a smaller solar array would frustrate the project‘s purpose or that placement of the project at the alternative sites would not be feasible. This was not adequate, in my
view, to address the concerns raised by the Town and neighbors. Accordingly, I would remand this matter to the Board with directions to afford a more balanced consideration of the project‘s impact on the region in light of the Town‘s solar standards and recommendations, and to address — and if necessary take additional evidence — on whether larger setbacks, a smaller project, or an alternative location would represent reasonable mitigation measures.
¶ 58. I am authorized to state that Justice Eaton joins this dissent.