In re Petition of Acorn Energy Solar 2, LLC (Therese Holmes and Timothy Holmes, Appellants) ( 2021 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2021 VT 3No. 2019-398
In re Petition of Acorn Energy Solar 2, LLC Supreme Court
(Therese Holmes and Timothy Holmes, Appellants)
On Appeal from
Public Utility Commission
April Term, 2020
Anthony Z. Roisman, Chair
Cindy E. Hill of Hill Attorney PLLC, Middlebury, for Appellants.
Benjamin Marks of Benjamin Marks Attorney at Law PLC, Cornwall, for Appellee Acorn
Energy Solar 2, LLC.
Alexander W. Wing, Special Counsel, Montpelier, for Appellee Vermont Department of Public
Service.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. CARROLL, J. Therese and Timothy Holmes appeal a Public Utility Commission
(PUC) decision granting Acorn Energy Solar 2 a certificate of public good (CPG) to build and
operate a solar net-metering system. The Holmeses argue that the PUC erred in concluding that:
Acorn’s application was complete under the PUC Rules; several proposed changes constituted
minor amendments; the project would be located on a preferred site; the project would comply
with setback requirements; and the project would not have an undue adverse effect on aesthetics,
orderly development, wetlands, air pollution, greenhouse gases, and traffic. We affirm.
I. Legal Background
¶ 2. We begin with an overview of the relevant legal background. A net-metering
“system is an electricity producing system of up to 500 kW powered by a renewable energy source
that operates alongside an existing electricity distribution network.” In re Stowe Cady Hill Solar,
LLC, 2018 VT 3, ¶ 2, 206 Vt. 430, 182 A.3d 53. “A developer of a new electric-generation facility
in Vermont may not begin construction until the PUC determines that the proposed project ‘will
promote the general good of the State and issues a certificate to that effect.’ ” In re Derby GLC
Solar, LLC, 2019 VT 77, ¶ 2, __Vt. ___, 221 A.3d 777 (quoting 30 V.S.A. § 248(a)(2)(B)); accord
In re SolarCity Corp., 2019 VT 23, ¶ 2, 210 Vt. 51, 210 A.3d 1255. “In deciding whether to grant
a CPG, the PUC is directed by statute to consider various criteria.” In re Green Mountain Power
Corp., 2018 VT 97, ¶ 3, 208 Vt. 349, 198 A.3d 36.
¶ 3. As relevant to this appeal, the PUC must find that the “purchase, investment, or
construction” of a project:
(1) 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
an affected municipality. However:
....
(B) With respect to a ground-mounted solar electric generation
facility, the facility shall comply with the screening requirements of
a municipal bylaw adopted under 24 V.S.A. § 4414(15) or a
municipal ordinance adopted under 24 V.S.A. § 2291(28), and the
recommendation of a municipality applying such a bylaw or
ordinance . . . .
....
(5) With respect to an in-state facility, will not have an undue
adverse effect on aesthetics, historic sites, air and water purity, the
natural environment, the use of natural resources, and the public
health and safety, with due consideration having been given to the
criteria specified in 10 V.S.A. §§ 1424a(d) and 6086(a)(1) through
2
(8) and (9)(K), impacts to primary agricultural soils as defined in 10
V.S.A. § 6001, and greenhouse gas impacts.
30 V.S.A. § 248(b). With that relevant background, we turn to the facts of this case.
II. Facts and Procedural History
¶ 4. On August 15, 2017, Acorn filed an application with the PUC to build and operate
a ground-mounted 150 kW solar net-metering system about two miles east of Lake Champlain in
Shoreham, Vermont. To build the project, Acorn would lease approximately three acres on a forty-
one-acre parcel. The parcel is an actively grazed farm pasture that contains several farm buildings.
The nearest public road, Watch Point Road, runs along the northern edge of the parcel. There is
an adjoining parcel to the east that also abuts Watch Point Road and contains a single-family home.
¶ 5. The leased area would include the project site, the construction staging area, and a
temporary gravel access road. The project site would be located southeast of the actively grazed
farm pasture, which would place the project about 385 feet to the south of the single-family home
on the adjoining parcel and more than 500 feet from Watch Point Road. The site would have a
ground-mounted solar array containing eight rows of panels. Building the solar array would
require grading a ridge located on the project’s west edge and removing four large maple trees.
To access the site, Acorn would build a temporary gravel access road that would extend east and
south from the existing driveway on the parcel. The construction staging area would be located
north of the gravel access road.
¶ 6. Acorn provided prefiled testimony outlining how the proposed project would affect
§ 248(b) criteria, including the orderly development of the region, aesthetics, air and water purity,
impacts to primary agricultural soils, wetlands, and soil erosion. On aesthetics, applying the so-
called Quechee analysis, Acorn concluded that the project would have an adverse aesthetic impact
because portions of the project would be visible to the west and north from public roads and a few
private residences. See Construction and Operation of Net Metering Systems § 5.112(A), 30 Code
3
of Vt. Rules 30 000 5100 [hereinafter Rule 5.100],
http://www.lexisnexis.com/hottopics/codeofvtrules (explaining that PUC applies the
“so-called ‘Quechee test’ ” to determine “whether a net-metering system satisfies the aesthetics
criterion”). Acorn represented that the impact would not be undue, however, in part because the
project would be “partially screened by a series of existing mature trees and structures.” Acorn
would further mitigate the impact by planting two maple trees to the north of the solar array—
between the construction staging yard and the temporary gravel access road—and two just to the
west of the solar array.
¶ 7. With regard to effects on primary agricultural soils, Acorn attested that
approximately 1.86 acres of primary agricultural soils would be impacted by the project, which
would be “stripped, stored/covered, and replaced once the array is installed.” According to the
prefilled testimony, constructing the temporary gravel access road would have no impact on
primary agricultural soils.
¶ 8. In terms of impacts to wetlands, Acorn represented that no significant Class II
wetlands or buffers exist within the project site. Acorn acknowledged, however, that there are two
small Class III wetlands. Wetland B is .08 acres and located in a low-lying pasture on the west
side of the project site. Wetland A is a 0.6-acre, isolated wetland located on the east side of the
project site that is used as cow pasture. The two wetlands are separated by a fifteen-foot ridge that
divides the drainage. Acorn concluded that the solar array would not have a large impact on the
Class III wetlands because the project layout avoids “trench and fill impacts” on them.
¶ 9. The Holmeses, who own property south of the project, filed notices of intervention
and were granted party status.1 They filed rebuttal testimony challenging Acorn’s conclusions
1
The Holmeses and several other adjoining landowners were jointly represented below.
Because the Holmeses are the only adjoining landowners who appealed, we refer to the actions
taken collectively by the adjoining landowners below as the Holmeses.
4
regarding several § 248(b) criteria, including orderly development, wetlands, and primary
agricultural soils. Juli Hinds, a professional planner and member of the American Institute of
Certified Planners, testified that the project would not promote the orderly development of the
region because it did not meet the characteristics of a good site as defined in the Shoreham Town
Plan and had characteristics of a bad site to the extent the project needs “to substantially excavate
and modify the existing topography.” Additional testimony was provided that grading the project
site—which would involve lowering the ridge separating the Class III wetlands—could have a
“profound impact” on the wetlands and subsurface evaluation was needed to assess the impact.
¶ 10. Almost a year after filing its initial application, Acorn proposed five changes to the
project. First, primary agricultural soils disturbed during project construction would be stored on
site in three berms. Two separate berms would be located along the eastern end of the project site
and another at the southern end of the project. Second, overburden—material other than primary
agricultural soil—would be stripped and “stockpiled immediately adjacent to the Project.” Third,
the solar array would be condensed, reducing the overall north-south dimension the array would
take up. Fourth, the construction staging area would be moved west into the horse paddock on the
host parcel. Finally, two maple trees—which were going to be planted to the west of the array—
would be moved north into the horse paddock, just south of the construction staging area, so the
trees would not interfere “with regular haying activities on the farm.”
¶ 11. The Holmeses filed objections to the proposed changes and moved to dismiss
Acorn’s application, arguing that the proposed changes qualified as major amendments that
required Acorn to refile its application. In response, Acorn withdrew the proposed changes and
provided superseding proposed changes along with a motion for a minor amendment. The
superseding proposed changes mirrored the original proposed changes with slight modifications.
First, prime agricultural soils would be stored in two berms to the west—rather than to the east—
of the project site, which would move the limits of disturbance by forty feet. An additional storage
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berm would be located under the solar array. Second, overburden would be stripped and—instead
of being stockpiled adjacent to the project—disposed of off-site. Third, the solar array would be
condensed. Finally, two maple trees would still be relocated a hundred-and-fifty feet to the north.2
¶ 12. In the accompanying motion for a minor amendment, Acorn argued that the
proposed changes qualified as minor amendments. The Holmeses filed a second motion to dismiss
arguing that the proposed changes comprised a major amendment because they would move the
limits of disturbance by more than fifty feet and would likely have a significant impact under one
or more of the applicable § 248 criteria. In any event, they argued, Acorn’s application was
incomplete because it did not, among other things, identify the limits of disturbance or outline the
impacts on vegetation and prime agricultural soils.
¶ 13. An evidentiary hearing was held in September 2018 on three of the § 248(b)
criteria: orderly development, aesthetics, and wetlands and primary agricultural soils. As relevant
here, Nils Behn, the project manager, testified that Acorn would haul away nearly 400 cubic yards
of overburden and 500 cubic yards of soil to construct the temporary gravel access road, which
was inconsistent with the prefiled testimony. Jerry Matosky, owner and president of Trudell
Consulting Engineers, also testified that approximately 500 cubic yards of soil would be removed
to construct the temporary access road and the soil would be stored in the construction staging
area.
¶ 14. Following the hearing, the Holmeses filed a third motion to dismiss and a post-
hearing brief. The Holmeses argued that Acorn’s application should be dismissed because the
proposed changes—moving the two maple trees, creating berms to store the primary agricultural
soils, excavating 500 cubic yards of soil to construct the temporary access road, and altering the
2
The superseding proposed changes made no reference to the construction staging area.
Because the initial proposed changes were withdrawn, the construction staging area would be
located where it was originally outlined, which was north of the gravel access road extending from
the driveway on the host parcel.
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configuration of the solar array—constituted major amendments. Alternatively, the Holmeses
argued that Acorn’s application was incomplete because it did not, among other things, identify
the limits of disturbance; include a drainage plan; or identify the extent of traffic, noise, and
greenhouse gas emissions associated with constructing the project. On the merits, the Holmeses
argued the PUC should not grant Acorn a CPG because the project would have an undue adverse
impact on several § 248(b) criteria, including orderly development, aesthetics, primary agricultural
soils, and wetlands.
¶ 15. In a July 2019 decision, the PUC denied the motion to dismiss.3 First, it concluded
that Acorn’s CPG application contained the required information. The PUC found that the
application disclosed the limits of disturbance because the revised site plan accompanying the
superseding proposed changes disclosed a “total disturbed area” of 1.71 acres, which included the
gravel access road, solar array, soil berms, and square footage to be seeded and mulched. The
PUC explained that the Holmeses’ argument that the limits of disturbance had not been disclosed
was based on the hearing testimony of Niles Behn and Jerry Matosky that 500 cubic yards of
primary agricultural soils would be removed during construction of the access road. This
testimony, however, was inconsistent with the revised site plan and Acorn’s representation in its
reply brief, which both indicated that no soils would be removed during construction of the road.
Although the PUC acknowledged this inconsistency, it resolved it in favor of the site plan.
¶ 16. In addition, interpreting PUC Rule 5.107(C)(5), the PUC determined that Acorn
was not required to submit a drainage plan because its application “addressed drainage-related
issues” and it was not proposing to drain any additional surface and/or subsurface water. Finally,
because the PUC reconciled the testimony regarding construction of the access road in favor of
3
A hearing officer first issued a proposal for a decision. The PUC then reviewed the
proposal for decision and the parties’ comments and adopted the hearing officer’s
recommendations and conclusions with clarifications and modifications.
7
the site plan, it concluded that the application—and additional information developed during
discovery and the hearing process—contained sufficient information about traffic impacts and
greenhouse gas emissions.
¶ 17. Second, the PUC concluded that the proposed changes qualified as minor
amendments within the meaning of PUC Rule 5.103. The soil storage berms and adjustment of
the solar array were minor amendments because they moved the limits of disturbance by less than
fifty feet. The movement of the two maple trees, however, moved the limits of disturbance by
more than fifty feet, which would qualify as a major amendment. Notwithstanding this fact, the
PUC determined the movement of the trees qualified as a minor amendment because the new
location provided an additional aesthetic benefit and proposing additional aesthetic mitigation
constitutes a minor amendment.
¶ 18. Finally, the PUC found that the project would not have an undue adverse effect on
the relevant § 248(b) criteria, including aesthetics, orderly development, air pollution, greenhouse
gases, wetlands, water supply, and primary agricultural soils. It accordingly granted a CPG to
Acorn. The Holmeses filed a motion to reconsider arguing that the PUC erred in (1) determining
the proposed changes qualified as minor amendments; (2) finding the project would not have an
undue adverse effect on soil and water supply without conducting subsurface hydrogeological
evaluation; (3) finding that the project would not have an undue adverse effect on air pollution,
greenhouse gases, and aesthetics; and (4) concluding that Acorn adequately considered alternative
sites. The motion was denied, and the Holmeses appealed.
¶ 19. On appeal, the Holmeses argue the PUC erred in numerous ways. First, they argue
the PUC erred in determining Acorn’s application for a CPG was complete when it did not include
a subsurface drainage plan and did not timely disclose the limits of disturbance. Second, the
Holmeses argue that the PUC erred in determining the proposed changes—namely, relocating the
two maple trees, moving soil offsite to construct the gravel access road, creating berms to store
8
primary agricultural soils, and reconfiguring the solar array—were minor amendments. Third,
they contend the PUC erred in determining the project would be located on a preferred site and
would meet setback requirements. Finally, the Holmeses claim that the PUC erred in finding the
project would not have an undue adverse effect on aesthetics, orderly development, air pollution,
greenhouse gases, wetlands, water supply, and traffic.
¶ 20. Acorn counterargues that the only proposed change that could qualify as a major
amendment is the relocation of the two maple trees and submits that the PUC correctly interpreted
its own rules to determine the change qualified as a minor amendment. In any event, Acorn argues,
any error was harmless because the movement of the trees does not affect any of the Holmeses’
substantial rights. With regard to the orderly development and aesthetics criteria, Acorn argues
the PUC applied the correct legal standards and made factual findings that are supported by the
record. Finally, Acorn argues that the Holmeses lack standing to challenge the PUC’s conclusions
that the project would be located on a preferred site; would not have an undue adverse effect on
air pollution, greenhouse gas, and noise; and would comply with setback requirements.
¶ 21. The Department of Public Service (DPS) argues that the PUC reasonably
interpreted its own rules to determine that a drainage plan is not required when a project does not
plan to drain surface and/or subsurface water. Second, DPS argues that the PUC correctly
determined that relocating the two maple trees was a minor amendment because Rule 5.103 gives
the PUC discretion to determine whether aesthetic changes are minor. Third, DPS contends that
the PUC correctly determined the project is located on a preferred site. Finally, DPS argues the
PUC correctly found that the project would not have an undue adverse effect on aesthetics, orderly
development, air pollution, and greenhouse gases.
III. Standard of Review
¶ 22. “When the PUC evaluates a CPG petition under 30 V.S.A. § 248, it is engaged in a
legislative, policy-making process.” In re Derby GLC Solar, LLC, 2019 VT 77, ¶ 18 (quotation
9
omitted). “Out of respect for the expertise and informed judgment of agencies, and in recognition
of this Court’s proper role in the separation of powers, we accord agency decisions substantial
deference.” In re Conservation Law Found., 2018 VT 42, ¶ 15, 207 Vt. 309, 188 A.3d 667. We
employ a deferential standard of review to both an agency’s “interpretation of [a] statute within its
area of expertise,” Shires Hous., Inc. v. Brown, 2017 VT 60, ¶ 9, 205 Vt. 186, 172 A.3d 1215, and
“an agency’s interpretation of its own regulations,” Conservation Law Found. v. Burke, 162 Vt.
115, 121, 645 A.2d 495, 499 (1993).
¶ 23. Despite this deferential standard, “[w]e still conduct an independent review and
will overturn an agency’s interpretation of its own promulgated regulation that exceeds the
authority granted under the state enabling statute, that conflicts with past agency interpretations of
the same rule, that results in unjust, unreasonable or absurd consequences, or that demonstrates
compelling indications of error.” Conservation Law Found., 2018 VT 42, ¶ 16 (citations omitted)
(quotations omitted). Similarly, we will overturn an agency’s interpretation of a statute if there is
a “compelling indication of an error” or if the interpretation is “unjust or unreasonable.” Brown,
2017 VT 60, ¶ 9. The PUC’s “findings will stand unless clearly erroneous; our role in reviewing
the [PUC]’s findings and conclusions is neither to reweigh conflicting evidence nor reassess the
credibility of witnesses.” In re Vt. Gas Sys., Inc., 2018 VT 44, ¶ 15, 207 Vt. 324, 187 A.3d 113.
IV. Completeness of Application
¶ 24. The Holmeses argue that the PUC erred in determining that Acorn’s application
contained the information required by PUC Rules. “Rule 5.100 . . . sets forth the standards and
procedures applicable to CPG applications for net-metering systems.” In re LK Holdings, LLC,
2018 VT 109, ¶ 11, 209 Vt. 14, 201 A.3d 373. As relevant here, Rule 5.107(C)(5) provides that
applications must (1) contain “[d]etailed plans for any drainage of surface and/or sub-surface
water” and (2) outline “the limits of disturbance and the total acreage of any disturbed area.”
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“Failure to provide any required information will result in the application being deemed
incomplete.” Rule 5.100 § 5.107(C).
¶ 25. The Holmeses argue that the PUC erred in determining that Acorn’s application
contained the required information when it did not include a drainage plan or outline the limits of
disturbance in a timely manner. We address each argument in turn.
A. Drainage Plan
¶ 26. The PUC determined that Acorn’s CPG application was administratively complete
even though Acorn did not submit a drainage plan because, it reasoned, drainage plans are not
required “if no drainage of surface or sub-surface water is proposed.” Based on this interpretation,
the PUC concluded that no drainage plan was required because Acorn addressed drainage issues,
including how it would protect Class III wetlands and prevent erosion on the project site during
construction, and did not propose any additional drainage of water.
¶ 27. The Holmeses argue the PUC impermissibly waived PUC Rule 5.107(C)(5)(e),
which clearly requires a drainage plan.4 DPS argues, however, that the PUC reasonably interpreted
its own rules such that a drainage plan is not required when a project does not involve draining
surface and/or subsurface water.
¶ 28. We agree with DPS that the PUC’s interpretation of Rule 5.107(C)(5)(e) is
reasonable. “Our primary goal in interpreting an administrative rule is to discern the intent of the
drafters, and we so do by examining the plain meaning of the regulatory language, with other tools
of construction should the plain meaning rule prove unavailing.” Conservation Law Found., 2018
VT 42, ¶ 15 (quotation omitted) (alteration omitted). Rule 5.107(C)(5)(e) requires “[d]etailed
4
The Holmeses also argue that the PUC erred in not requiring Acorn to submit a drainage
plan because they presented a prima facie case that the project would harm their property by
dewatering it. Although framed as a challenge to the PUC’s interpretation of Rule 5.107(C)(5)(e),
the Holmeses are challenging the PUC’s finding that the project would not have an undue adverse
effect on wetlands, water supply, or soil erosion. This argument is accordingly considered infra,
¶¶ 122-25.
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plans for any drainage of surface and/or sub-surface water.” The word “any” in this § acts as an
adjective modifying “drainage.” As an adjective, “any” is defined in part as “one or more—used
to indicate an undetermined number or amount.” Any, Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/any [https://perma.cc/28WD-JHS5]. Based on the
definition of “any,” the PUC reasonably interpreted Rule 5.107(C)(5)(e) to require a drainage plan
only to the extent drainage of surface and/or sub-surface water is proposed. As the PUC elaborated
in denying the motion to reconsider, subsection 5.107(C)(5)(e), like other provisions of Rule
5.107(C)(5), only requires applicants to provide certain information when it is “applicable to a
particular project.”
B. Limits of Disturbance
¶ 29. The PUC determined that Acorn’s application adequately disclosed the limits of
disturbance. The revised site plan, the PUC explained, outlined the total disturbed area, which
included the gravel access road, solar array, soil storage berms, and area to be seeded and mulched.
Although the PUC acknowledged conflicting information regarding whether Acorn would remove
soil to construct the gravel access road, it resolved this inconsistency in favor of the site plan,
which indicated that no soil would be removed.
¶ 30. The Holmeses argue that the PUC erred because Rule 5.107(C)(5) and 30 V.S.A.
§ 248(a)(4)(J) require Acorn to disclose the limits of disturbance at the beginning of the CPG
process and Acorn did not disclose the limits of disturbance until it submitted the final revised site
plan, which was more than a year after it filed the initial application. Section 248(a)(4)(J)(i)
requires that applications for net-metering facilities delineate “the full limits of physical
disturbance due to the construction and operation of the facility and related infrastructure,
including areas disturbed due to the creation or modification of access roads and utility lines and
the clearing or management of vegetation.” The PUC is prohibited by statute from waiving or
including “provisions that are less stringent” than § 248(a)(4)(J). Id. § 8010(c)(3)(E). Consistent
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with § 248(a), Rule 5.107(C)(5)(d) requires that applications include a site plan disclosing “the
limits of disturbance and the total acreage of any disturbed area.” The Holmeses are correct that
the initial application must identify the limits of disturbance.
¶ 31. What they overlook, however, is that Rule 5.108(A) outlines a process for making
minor amendments to applications. It requires that applicants provide “notice of all minor
amendments,” which must have “sufficient information, including an amended site plan, so that
the [PUC] can understand the nature of the proposed change and its impact.” While applicants
must initially disclose the limits of disturbance, Rule 5.108(A) anticipates that a pending
application may be updated—and the limits of disturbance may change—in the course of
proposing minor amendments.
¶ 32. In this case, Acorn complied with the relevant statutory and regulatory
requirements. When Acorn initially filed its application, it included a site plan that delineated the
full limits of disturbance. While the application was pending, Acorn proposed a minor amendment
pursuant to Rule 5.108(A) and filed a revised site plan that, as the PUC found, outlined the total
disturbed area, which included the gravel access road, solar array, soil storage berms, and area to
be seeded and mulched. The PUC accordingly did not err in concluding that Acorn’s CPG
application adequately disclosed the full limits of disturbance.
V. Amendments
¶ 33. The Holmeses argue that the proposed changes—excavating and moving soil off-
site to build the temporary access road, creating berms to store primary agricultural soils,
reconfiguring the solar array, and relocating the two maple trees—qualify as major amendments
that required Acorn to refile its application. Acorn and DPS argue, however, that the only relevant
metric for determining whether a change is minor or major is whether the limits of disturbance
will be moved by more than fifty feet; as such, the only proposed change that could qualify as
major is the relocation of the maple trees. Nevertheless, Acorn and DPS contend that the PUC
13
reasonably interpreted Rule 5.103 to determine that relocating the trees was a minor amendment
because the new proposed location provided aesthetic mitigation.
¶ 34. Under PUC Rule 5.103, an amendment is either major or minor, which are defined
as follows:
(1) The following changes constitute a “major” amendment:
(a) increasing the nameplate capacity of the net-metering system
by more than 5% or reducing the nameplate capacity of the net-
metering system by more than 60%;
(b) moving the limits of disturbance by more than 50 feet;
(c) changing the fuel source of the net-metering system; or
(d) any other change that the [PUC], in its discretion, determines is
likely to have a significant impact under one or more of the criteria
of Section 248 applicable to the net-metering system.
(2) The following changes constitute a “minor” amendment:
(a) proposing additional aesthetic mitigation; or
(b) any other change to the physical plans or design of the system
that is not a major amendment.
If an amendment is considered major, the applicant must withdraw the application and refile. Rule
5.108(B). An applicant can implement proposed minor amendments, however, provided certain
criteria are met. Rule 5.100 § 5.109(A).
¶ 35. Here, as an initial matter, the PUC found that Acorn would not be excavating
agricultural soils to construct the temporary access road. Although during the evidentiary hearing
Acorn’s experts testified to removing 500 cubic yards of soils, the PUC resolved the inconsistency
in favor of the revised site plan, and not the testimony, in part because it would result “in far less
excavation and impact.” The final CPG included a condition “specifying that the construction of
the [p]roject and the areas of disturbance shall be in accordance with the final site plan
14
submitted . . . rather than any testimony provided.” Based on this finding, the PUC concluded that
there were no changes associated with constructing the access road.
¶ 36. The PUC concluded that the three proposed changes—soil storage berms, array
adjustment, and relocation of the two maple trees—were minor amendments. The soil storage
berms and array adjustment were minor amendments because they moved the limits of disturbance
by less than fifty feet. Although the new proposed location for the two maple trees moved the
limits of disturbance by more than fifty feet, the PUC concluded the change still qualified as a
minor amendment because the new location would provide additional aesthetic mitigation and
would not have a significant impact on any other § 248 criteria.
¶ 37. On appeal, the Holmeses argue the PUC erred in determining the proposed changes
constituted minor amendments. First, with regard to the maple trees, the Holmeses argue that the
purpose of moving the trees was not to provide additional aesthetic mitigation, and, in any event,
citing previous PUC decisions, they posit that whether an amendment qualifies as minor or major
“does not depend on the justification for the change.” Second, the Holmeses argue the proposed
changes increase the area of disturbance by over 50% and that it is unreasonable to consider an
increase of this size a minor amendment.
A. Maple Trees
¶ 38. The Holmeses argue the PUC erred in determining that relocating the two maple
trees was a minor amendment. As outlined above, “[w]e employ a deferential standard of review
of an agency’s interpretation of its own regulations.” Burke, 162 Vt. at 121, 645 A.2d at 499. In
this case, the PUC had to reconcile two conflicting parts of Rule 5.103. While moving the limits
of disturbance by more than fifty feet qualifies as a major amendment under (1)(b), proposing
additional aesthetic mitigation qualifies as a minor amendment under (2)(a). Reconciling these
conflicting definitions, the PUC explained that “[w]hile Rule 5.103 generally defines changing the
15
limits of disturbance by more than 50 feet as a major amendment, the rule also creates an exception
for changes related to adding aesthetic mitigation.”
¶ 39. This interpretation of Rule 5.103, the PUC reasoned, would be “consistent with the
[PUC]’s aesthetic mitigation rule, which contemplates evolving mitigation plans over the course
of the CPG application process.” Treating the relocation of aesthetic mitigation as a minor
amendment would also encourage applicants to propose additional aesthetic mitigation “without
worrying about triggering the major amendment requirements.” The PUC’s interpretation of Rule
5.103, specifically (1)(b) and (2)(a), is neither unreasonable nor does it “demonstrate[] compelling
indications of error.” Conservation Law Found., 2018 VT 42, ¶ 16 (quotations omitted).
¶ 40. The Holmeses argue, however, that this interpretation conflicts with past agency
interpretations. See id. (explaining that we “will overturn an agency’s interpretation of its own
promulgated regulation . . . that conflicts with past agency interpretations of the same rule”
(citation omitted)). The Holmeses argue the PUC has inconsistently interpreted Rule 5.103
because in In re Howe Center, Ltd., the PUC held that “the determination of whether a proposed
change to the location of a project constitutes a minor or major amendment does not depend on
the justification for the change.” CPG No. 16-0083-NM, at 4 (Vt. Pub. Util. Comm’n July 24,
2017), https://epuc.vermont.gov/?q=node/104/27110.
¶ 41. In Howe Center, an applicant proposed changing a rooftop solar array to a ground-
mounted system that would be located 200 feet to the south of the rooftop location. The PUC
determined that the proposed change was a major amendment because it implicated § 248 criteria
applicable to ground-mounted projects that the CPG application did not address, and the PUC did
not consider in approving a rooftop system. Id. at 3-4. The PUC could not reach any definitive
determination about the effect on § 248 criteria “without additional proceedings in accordance
16
with the applicable net-metering rule.”5 Id. at 4. Although the project would have “apparently
satisf[ied] all applicable requirements of the Town of Rutland” and the mayor endorsed the project,
the PUC explained that “the determination of whether a proposed change to the location of a
project constitutes a major or minor amendment does not depend on the justification for the change
or the fact that the proposed new location appears to be a good one.” Id.
¶ 42. In this case, consistent with Howe Center, the PUC did not rely on the justification
for relocating the trees to determine the change qualified as a minor amendment. As the Holmeses
observe, Acorn moved the maple trees to accommodate the landowner’s request to relocate them
so they would not interfere with haying. The PUC determined, however, that relocating the trees—
which would, in effect, result in aesthetic mitigation—was a minor amendment based upon a
reasonable construction of the criteria outlined in Rule 5.103 for determining whether a change
constitutes a minor and major amendment. In sum, the PUC reasonably interpreted Rule 5.103 in
a way that does not conflict with past agency interpretations.
B. Area of Disturbance
¶ 43. The Holmeses argue the proposed changes qualify as a major amendment because
they increase the area of disturbance by more than 50%. The PUC disagreed with the Holmeses’
calculations and found that the proposed changes only increased the area of disturbance by 18%.
In any event, the PUC concluded that Rule 5.103(1)(b) defines “major amendment in terms of
changes to the limits of disturbance, not by changes in square footage.”
¶ 44. The Holmeses argue the PUC made a factual error in finding the proposed changes
only increased the area of disturbance by 18%. Even assuming the proposed changes increased
the area of disturbance by more than 50%, that would not qualify the changes as a major
5
The PUC also noted that the proposed change qualified as a major amendment because
it moved the limits of disturbance by more than fifty feet but emphasized that the “principal basis”
for its determination was (1)(d).
17
amendment. As the PUC explained, Rule 5.103(1)(b) does not define major amendment in terms
of changes to the square footage of the disturbed area. Although the Holmeses argue that it is
unreasonable to consider a change of this magnitude as a minor amendment, they cite nothing in
Rule 5.103 indicating that an increase in the area of disturbance qualifies a change as a major
amendment.
VI. Preferred Site Status
¶ 45. The Holmeses argue that the PUC erred in determining the project would be located
on a preferred site. Under PUC Rule 5.103, a preferred site is defined, in part, as “a specific
location that is identified in a joint letter of support from the municipal legislative body and
municipal and regional planning commissions in the community where the net-metering system
will be located.” The PUC concluded that the project would be located on a preferred site because
it would be “on a site identified in letters of support from the Shoreham Select Board, the Shoreham
Planning Commission [SPC], and the Addison County Regional Planning Commission.”
¶ 46. The Holmeses argue that the letters of support were insufficient to confer preferred
site status because the PUC rules require a single “joint letter” and the Shoreham Selectboard and
Addison County Regional Planning Commission sent separate letters. Alternatively, the Holmeses
argue that the letter from the Shoreham Selectboard is invalid because it was produced in violation
of Vermont’s Open Meeting Law. Acorn argues, however, that the Holmeses cannot challenge
the PUC’s preferred site determination because they were only granted intervention on three
issues: orderly development, aesthetics, and wetlands and primary agricultural soils. Alternatively,
Acorn argues that the Holmeses have no standing because whether the project is located on a
preferred site only impacts the price of energy that the project will generate, which affects none of
the Holmeses’ legal interests.
¶ 47. The record indicates that the PUC’s intervention order granted the Holmeses full
party status. We conclude, however, that the Holmeses have no standing on the issue of preferred
18
site status because, as it pertains to the preferred site issue, we could not remedy the Holmeses’
injury in fact by granting the requested relief.
A. Intervention
¶ 48. The PUC Rules outline several standards for those seeking to intervene in PUC
proceedings. First, under Rule 2.209(A), a person can intervene as a matter of right “when the
[person] demonstrates a substantial interest which may be adversely affected by the outcome of
the proceeding, where the proceeding affords the exclusive means by which the [person] can
protect that interest and where the [person]’s interest is not adequately represented by existing
parties.” Rules of Practice § 2.209(A), Code of Vt. Rules 30 000 2000 [hereinafter Rule 2.209],
http://www.lexisnexis.com/hottopics/codeofvtrules. Second, under Rule 2.209(B), a person may
intervene in the PUC’s discretion “when the [person] demonstrates a substantial interest which
may be affected by the outcome of the proceeding.” Finally, in net-metering proceedings, several
persons, including adjoining landowners, “will be granted party status . . . after filing a notice of
intervention.” Rule 5.100 § 5.117(B)(3).
¶ 49. In this case, after receiving notice that Acorn planned to submit a CPG application,
the Holmeses filed a comment explaining that their “property is located south and uphill from the
proposed project” and they had “numerous substantive concerns regarding the proposed project,”
including how the project would impact aesthetics, agricultural soils, and natural resources.
Should Acorn file a CPG application, the Holmeses warned that they would “assert intervenor
status to press” their concerns. In November 2017, the Holmeses filed a notice of intervention.
Acorn responded by requesting that the Holmeses be granted intervention only on the aesthetics
criteria because that was the only issue in which they had “demonstrated a substantial,
particularized interest not addressed by any other party in th[e] proceeding.”
¶ 50. In a March 14, 2018 order entitled “Order Re: Motion to Withdraw, Motion to
Intervene, and Hearing Requests,” the PUC granted the Holmeses party status pursuant to Rule
19
5.117(B)(3). In doing so, the PUC specifically rejected Acorn’s attempt to limit the Holmeses
intervention to the aesthetics criteria, explaining that Acorn’s intervention argument improperly
relied on Rule 2.209(B). In net-metering cases, the PUC explained, Rule 5.117(B)(3) governs,
which “recognizes that adjoining landowners by definition have a substantial interest in net-
metering cases whether under the standards for intervention described under . . . Rule 2.209(A)
(intervention as of right) or 2.209(B) (permissive intervention).” (Quotation omitted.) The record
indicates that the Holmeses were granted full party status.
¶ 51. In arguing that the Holmeses were only granted intervention on three issues, Acorn
confuses the PUC’s intervention order with its order on the scope of the evidentiary hearing. In
its March 2018 order, the PUC granted the Holmeses party status and then addressed their request
for an evidentiary hearing. The PUC explained that pursuant to Rule 5.119, it would grant the
Holmeses’ hearing request if the request raised “(1) one or more substantive issues under the
applicable Section 248 criteria; or (2) a substantive issue that [was] within the [PUC’s] jurisdiction
to resolve.” Even though the Holmeses requested a hearing on a host of issues, the PUC only
granted an evidentiary hearing on three § 248(b) criteria: orderly development, aesthetics, and
wetlands and primary agricultural soils. Rather than limiting the Holmeses’ intervention to three
issues, the PUC merely limited the scope of the evidentiary hearing to those three issues.
B. Standing
¶ 52. Acorn also argues that the Holmeses have no standing in regard to the preferred site
issue because the preferred site designation does not affect any of the Holmeses’ legal interests as
adjoining landowners. In other words, Acorn alleges that the Holmeses have not demonstrated an
injury in fact.
¶ 53. “Standing embodies a core constitutional component and a prudential component
of self-imposed judicial limits.” Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337, 341, 693
A.2d 1045, 1048 (1997). To establish standing, a plaintiff “must show (1) injury in fact, (2)
20
causation, and (3) redressability.” Brod v. Agency of Nat. Res., 2007 VT 87, ¶ 9, 182 Vt. 234,
936 A.2d 1286 (quotation omitted). In other words, “the plaintiff must allege a personal injury
traceable to the defendant’s conduct that the court can remedy by granting the sought-after relief.”
Brigham v. State, 2005 VT 105, ¶ 16, 179 Vt. 525, 889 A.2d 715 (mem.).
¶ 54. We agree that the Holmeses have no standing with regard to the preferred site issue;
although, our rationale is slightly different. Pursuant to In re Apple Hill Solar LLC, 2019 VT 64,
___ Vt. ___, 219 A.3d 1295, we hold that the Holmeses have demonstrated an injury in fact.
However, we could not remedy the injury in fact by granting the Holmeses’ requested relief.
¶ 55. To demonstrate an injury in fact, a plaintiff must show they “have suffered . . . an
invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical.” Turner v. Shumlin, 2017 VT 2, ¶ 11, 204 Vt. 78, 163
A.3d 1173 (quotation omitted). In Apple Hill Solar, LLC, we concluded that a grant of permissive
intervention under Rule 2.209(B) was sufficient “to satisfy the constitutional injury requirement”
because Rule 2.209(B) requires a determination that a party has “established substantial and
particularized interests in the proceeding.” 2019 VT 64, ¶ 19; see also Rule 2000 § 2.209(A)
(explaining that “a person shall be permitted to intervene” as matter of right if they demonstrate,
among other things, “a substantial interest which may be adversely affected by the outcome of the
proceeding”).
¶ 56. In this case, however, the Holmeses were granted party status pursuant to PUC Rule
5.117(B)(3)(f), which provides that an adjoining landowner will be granted party status “after
filing a notice of intervention.” Nevertheless, the PUC explained that Rule 5.117 “recognizes that
adjoining landowners by definition have a substantial interest in net-metering cases whether under
the standards for intervention described under . . . Rule 2.209(A) (intervention as of right) or
2.209(B) (permissive intervention).” (Quotation omitted.) Consistent with Apple Hill Solar LLC,
the PUC’s intervention order granting the Holmeses party status is sufficient to establish an injury
21
in fact because it “necessarily rested on a determination that [the Holmeses] had established
substantial and particularized interests in the proceeding.” 2019 VT 64, ¶ 19.
¶ 57. To establish standing, the Holmeses must also show that the Court can remedy their
injury in fact “by granting the sought-after relief.” Brigham, 2005 VT 105, ¶ 16. The relief the
Holmeses seek is an order vacating Acorn’s CPG or a remand “to the PUC for submission of
evidence and hearing on the deficiencies.” Even if the PUC erred in concluding the project would
be located on a preferred site, we could not remedy the Holmeses’ injury in fact by granting the
requested relief.
¶ 58. A preferred site designation is relevant for two reasons: (1) determining if a project
greater than 150 kW can be built and (2) calculating the price of energy that a net-metering system
will produce. First, projects greater than 150 kW must be built on a preferred site. The PUC Rules
provide that “[t]o be eligible to apply for a net-metering CPG . . . an applicant must propose” a
Category I, Category II, Category III, or Category IV net-metering system, which are defined as
follows:
“Category I Net-Metering System” means a net-metering system
that is not a hydroelectric facility and that has a capacity of 15 kW
or less.
“Category II Net-Metering System” means a net-metering system
that is not a hydroelectric facility that has a capacity of more than
15 kW and less than or equal to 150 kW, and that is sited on a
preferred site.
“Category III Net-Metering System” means a net-metering system
that is not a hydroelectric facility, that has a capacity of greater than
150 kW and less than or equal to 500 kW, and that is sited on a
preferred site.
“Category IV Net-Metering System” means a net-metering system
that is not a hydroelectric facility, that has a capacity of greater than
15 kW and less than or equal to 150 kW, and that is not located on
a preferred site.
22
Rule 5.100 § 5.103. The PUC Rules require that net-metering systems between 150 and 500 kW,
Category III, be built on preferred sites. Systems between 15 and 150 kW, however, can be built
either on a preferred site—in which case they are a Category II system—or not—in which case
they are a Category IV system.
¶ 59. Second, a preferred site designation affects the price of energy that a net-metering
system will produce. A net-metering system may produce more energy than a customer consumes.
See Rule 5.100 § 5.103 (explaining that net-metering refers to “the process of measuring the
difference between the electricity supplied to a customer and the electricity fed back by a net-
metering system”); Rule 5.100 § 5.126(A)(2) (providing that customers can “elect to wire net-
metering systems such that they offset consumption on the billing meter”). “If the electricity
produced by the net-metering system exceeds the electricity consumed, the excess generation must
be monetized at the applicable blended residential rate,” which is expressed in dollars per kilowatt
hour (kW/h). Rule 5.100 § 5.126(A)(2)(a)(ii); see also Rule 5.100 § 5.103 (defining blended
residential rate). The blended residential rate may be increased or decreased “based on factors
related to site selection.” Rule 5.100 § 5.103. A net-metering system between 15 and 150 kW
located on a preferred site is entitled to an increase of one cent per kW/h. Rule 5.100
§ 5.127(C)(2)(b). On the other hand, the energy produced by a net-metering system of the same
size not located on a preferred site is reduced by three cents per kW/h. Rule 5.100
§ 5.127(C)(2)(d).
¶ 60. In this case, Acorn’s project is a 150-kW system, which means that it can be built
whether or not it is located on a preferred site. The preferred site designation is only relevant to
determining the price of electricity the project would produce, specifically whether Acorn’s project
would be entitled to a siting adjustment of plus one cent per kW/h above the blended residential
rate or would be reduced by three cents per kW/h below the residential rate. This issue has no
bearing on the validity of Acorn’s CPG, and its ultimate resolution will have no impact on the
23
Holmeses’ injury in fact, which is based on how the project affects their adjoining property.
Accordingly, even if the PUC erred in determining the project would be located on a preferred site,
we could not remedy the Holmeses’ injury in fact by granting the requested relief.
VII. Section 248 Criteria
¶ 61. The Holmeses argue that the PUC erred in finding that the project would not have
an undue adverse effect on aesthetics, orderly development, air pollution, greenhouse gas impacts,
transportation, water supply, and wetlands. As a threshold matter, however, Acorn argues that the
Holmeses lack standing with regard to air pollution, greenhouse gases, and aesthetics, specifically
construction noise.
A. Standing
¶ 62. Acorn argues that the Holmeses do not have standing because they were not granted
intervention on, and have no legal interest in, the issues of air pollution, greenhouse gases, or
construction noise the project will produce. To establish standing, a plaintiff “must show (1) injury
in fact, (2) causation, and (3) redressability.” Brod, 2007 VT 87, ¶ 9 (quotation omitted). As
discussed above, supra, ¶¶ 48-56, the Holmeses were granted party status pursuant to Rule
5.117(B)(3)(f) because they are adjoining landowners. Under Apple Hill Solar LLC, 2019 VT 64,
¶ 19, this is sufficient to establish an injury in fact because, as the PUC explained, Rule 5.117
“recognizes that adjoining landowners by definition have a substantial interest in net-metering
cases.” (Quotation omitted.).
¶ 63. Whether the Holmeses have standing turns on the redressability prong. We
concluded that the Holmeses did not have standing on the preferred site issue because even if the
PUC erred in determining the project would be located on a preferred site, we could not remedy
the Holmeses’ injury in fact by granting the requested relief. By contrast, as it relates to air
pollution, greenhouse gas, and aesthetics, we could remedy the Holmeses’ injury in fact by
granting the requested relief. Prior to issuing a CPG, the PUC must find that the “purchase,
24
investment, or construction” of a project will not have an undue adverse effect on air pollution,
greenhouse gases, and aesthetics. 30 V.S.A. § 248(b)(5). If the PUC erred in finding the project
would not have an undue adverse effect on air pollution, greenhouse gases, and aesthetics, it would
directly affect the validity of Acorn’s CPG and we could grant the requested relief—an order
vacating the CPG.
¶ 64. Having concluded the Holmeses have standing, we address whether the PUC erred
in finding the project would not have an undue adverse effect on aesthetics, orderly development,
air pollution, greenhouse gas, transportation, and wetlands.
B. Aesthetics
¶ 65. Before granting a CPG, the PUC must find that a project “will not have an undue
adverse effect on aesthetics.” Id. The Holmeses argue that the PUC erred in finding the project
would not have an undue adverse effect on aesthetics. First, they argue the PUC committed legal
error in concluding that Acorn took sufficient steps to mitigate the project’s visual impact,
including considering alternative sites. Second, they argue the PUC’s findings regarding noise
impacts were clearly erroneous.
1. Mitigating Steps
¶ 66. In determining whether a project has an undue adverse aesthetic effect, the PUC
applies a modified version of the “so-called ‘Quechee test’ as described in the case In re Hanlon,
174 Vt. 515 (2002) (mem.).” Rule 5.100 § 5.112(A). The first step in that test is to determine
“whether the project would have an adverse impact on aesthetics and the scenic and natural beauty
of an area.” Rule 5.100 § 5.112(A)(1). The project satisfies the aesthetics criteria if the answer is
no. Id. If the project has an adverse impact, the next question is whether the impact would be
undue. The impact is undue if (A) the project would “violate a clear, written community standard
intended to preserve the aesthetics or scenic, natural beauty of the area”; (B) the project would
“offend the sensibilities of the average person”; or (C) the applicant “failed to take generally
25
available mitigating steps that a reasonable person would take to improve the harmony of the
proposed project with its surroundings.” Rule 5.100 § 5.112(A)(2)(a)-(c).
¶ 67. Pursuant to Quechee, the PUC found that the project would have “an adverse
impact due to its proposed location in an open, rural setting and because it [would] be visible from
surrounding public roads.” In determining whether the impact was undue, the PUC first concluded
that the Shoreham Town Plan’s aesthetic guidelines did not provide any clear, written, community
standards because they contain general siting criteria rather than designating specific areas for
protection. Second, the PUC found that the project would not offend the sensibilities of the average
person because the average person’s view of the project from the north and west would be partially
obscured by the soil storage berms and the agricultural structures on the host property. Although
some open views remain from the north, the views would be broken by existing structures and the
proposed vegetation.
¶ 68. Finally, the PUC found that Acorn took sufficient measures to mitigate the adverse
impact—namely, “large setbacks from public roads, planting two sugar maple trees to the north
and two more to the northeast, and extending an existing cedar hedge on the host landowner’s
property.” Although the Holmeses argued that Acorn was required to consider alternative sites for
the project to mitigate its impacts, the PUC, citing several decisions from this Court, concluded
that “[t]he burden of demonstrating that an alternative site is available is on the [opponent], not
the Applicant.” Applying this standard, the PUC concluded that the Holmeses failed to
demonstrate that their proposed alternative site on the host parcel was available because the current
proposed site was the only location the host landowner would allow on her property.
¶ 69. On appeal, the Holmeses argue that the PUC improperly shifted the burden from
Acorn to demonstrate the availability of an alternative site. Citing In re Halnon, 174 Vt. 514, 811
A.2d 161, they argue that it is Acorn’s burden to show it considered alternative siting. Assuming
the PUC applied the correct standard, the Holmeses argue that they presented evidence
26
demonstrating the availability of an alternative site because Acorn’s lease did “not prescribe the
limits of the lease area” and their expert identified a “specific, reasonable potential alternative site
on the host parcel.”
¶ 70. Before turning to the question of who has the burden of demonstrating the
availability of an alternative site, we must decide a threshold question: Whether, in the context of
a CPG proceeding, alternative siting in a project tract is a mitigating measure under Quechee.
Although the Holmeses, Acorn, and DPS all assume that alternative siting is a mitigating measure,
we have never expressly decided that question.
¶ 71. In Halnon, a landowner applied for a CPG to build a wind turbine net-metering
system on a portion of his 62-acre property. The Public Service Board, the predecessor to the
PUC, declined to issue a CPG because the landowner had not fully addressed the feasibility of
other possible alternative locations on his property that would lessen the “offensive and shocking”
aesthetics impacts of the project. Id. at 515, 811 A.2d at 162-63. We affirmed on appeal,
explaining that the Board did not abuse its discretion in denying the CPG because the landowner
did not consider alternative sites on his own property. Id. at 517-18, 811 A.2d at 165.
¶ 72. Almost a decade later in In re Rutland Renewable Energy, LLC, we clarified that
we assumed in Halnon “that meeting the mitigation requirement could involve relocation of the
wind turbine on the applicant’s property without examining the issue.” 2016 VT 50, ¶ 28 n.5, 202
Vt. 59, 147 A.3d 621. We reiterated that the issue was still open, see id., especially because in In
re Goddard College Conditional Use, we explicitly declined to address whether, in the Act 250
context, “alternative siting within a project tract may be considered as a reasonable mitigating
measure.” 2014 VT 124, ¶ 11, 198 Vt. 85, 111 A.3d 1285¶ 73. Although we have never decided if alternative siting is a mitigating measure under
Quechee in the Act 250 context, there is an importance difference between applying Quechee in
the Act 250 context and applying it in a CPG proceeding. In the Act 250 context, the Quechee test
27
is a judicial gloss on the aesthetics criteria under 10 V.S.A. § 6086(a)(8). See In re Application of
Lathrop Ltd. P’ship I, 2015 VT 49, ¶ 74, 199 Vt. 19, 121 A.3d 630 (“An analysis of a project’s
aesthetic impacts under Criterion 8 begins with the two-part Quechee test formulated by the
Environmental Board . . . .”). By contrast, in the CPG context, the Legislature has directed the
PUC to promulgate rules that, with respect to net-metering systems exceeding 150 kW, “apply the
so-called ‘Quechee’ test” as described in Halnon to assess aesthetic impact. 30 V.S.A.
§ 8010(c)(3)(D).
¶ 74. Pursuant to this directive, the PUC promulgated Rule 5.112(A), which provides that
“[i]n determining whether a net-metering system satisfies the aesthetics criterion contained in 30
V.S.A. § 248(b)(5), the [PUC] applies the so-called ‘Quechee test’ as described in the case In re
Halnon.” In interpreting this regulation, the PUC has clearly considered alternative siting an
appropriate consideration. See Rutland Renewable Energy, LLC, 2016 VT 50, ¶ 56, n.11 (Reiber,
J., dissenting) (“[T]here is no question that the [PUC] has considered [alternative sites] to be
appropriate for consideration in CPG proceedings . . . .” (collecting cases)). Because we defer to
both an agency’s interpretation of a statute it has been charged with administering, Brown, 2017
VT 60, ¶ 9, and “an agency’s interpretation of its own regulations,” Burke, 162 Vt. at 121, 645
A.2d at 499, we defer to the PUC’s interpretation that alternative siting is a mitigating measure in
the CPG context.
¶ 75. Having determined that alternative siting is a mitigating measure under the PUC’s
interpretation of Quechee, the next issue is whether the PUC erred in determining that the burden
of demonstrating the availability of an alternative site is on the opponents. It is true, as the
Holmeses observe, that in Halnon, we held that the Public Service Board did not abuse its
discretion in denying a CPG because the landowner did not consider alternative sites on his own
property. 174 Vt. at 517-18, 811 A.2d at 165. However, we distinguished Halnon in Rutland
Renewable Energy, LLC.
28
¶ 76. In Rutland Renewable Energy, LLC., the Public Service Board granted Rutland
Renewable Energy (RRE) a CPG to build a solar electrical facility “on approximately 15 acres of
a larger parcel” that was under contract for purchase. 2016 VT 50, ¶ 2. We distinguished that case
from Halnon because the issue presented was not “whether there [was] an alternative location on
the property owned by RRE because the proposal already use[d] all the available land,” and it was
unreasonable to require RRE to demonstrate there was not a better alternative site on land it did
“not own or control.” Id. ¶ 27. Assuming “the evaluation of other properties [was] part of the
Quechee test,” we explained that “the initial burden to demonstrate an alternative site is on the
opponents, not on the applicant.” Id. ¶ 28.
¶ 77. Rutland Renewable Energy indicates that (1) applicants are not required to consider
alternative siting on land they do not “own or control,” and (2) “the initial burden to demonstrate
an alternative site is on the opponents, not on the applicant.” Id. ¶¶ 27-28. In light of Halnon and
Rutland Renewable Energy, the PUC did not err in placing the burden on the Holmeses to
demonstrate the availability of an alternative site on the host parcel.
¶ 78. Nor did the PUC err in concluding that the Holmeses failed to demonstrate their
proposed alternative sites were available. Although the Holmeses identified an alternative site on
the host parcel, the PUC concluded that the Holmeses did not meet their burden to demonstrate
the site was “available” because the record indicated that “the current proposed site [was] the only
location for the Project that the host landowner [would] allow on the host property.” This finding
is not clearly erroneous. Acorn’s project manager testified that he did not consider alternative
locations on the host parcel because “[t]he landowner was consulted during the lease negotiation”
and his understanding was that there were “no other sites [the landowner] would be willing to site
the array at.”
¶ 79. The Holmeses also argue that the PUC’s reasoning in this case is inconsistent with
its order in Application of Breezy Valley Community Solar Farm LLC, CPG No. NM-6146 (Vt.
29
Pub. Util. Comm’n Aug. 10, 2015), https://epuc.vermont.gov/?q=node/104/37707. In that case,
the issue was whether the applicant had taken sufficient mitigating steps, and the Town argued that
additional screening was necessary. The applicant argued in response that it did not lease enough
land for additional screening. The PUC, however, was unpersuaded by this argument because the
applicant “selected both the size and location of the leased land” and could therefore accommodate
additional screening by leasing additional land. Id. at 5. The PUC accordingly issued a CPG that
included a condition requiring the applicant to file a revised site plan prior to construction that
depicted additional visual mitigation. Id. at 8.
¶ 80. Breezy Valley is distinguishable in two respects. First, it did not address alternative
siting but rather additional screening outside the leased area. Second, the PUC found in Breezy
Valley that the applicant “selected both the size and location of the leased land,” which meant that
the applicant there could have gained control over more land to accommodate additional screening.
That action was unavailable to Acorn, however, because the PUC found that the landowner would
only lease a certain area.
2. Construction Noise
¶ 81. In determining whether a project will have an undue adverse effect on aesthetics,
§ 248(b) requires the PUC to give due consideration to the criteria specified in 10 V.S.A.
§ 6086(a)(1) through (8). Under § 6086(a)(8), aesthetics includes noise impacts. See In re N.E.
Materials Grp., LLC/Rock of Ages Corp. Act 250 Permit, 2019 VT 55, ¶ 8, ___ Vt. ___, 217 A.3d
541 (recognizing that truck noise is an aesthetic concern under § 6086(a)(8)); Application of
Lathrop Ltd. P’ship I, 2015 VT 49, ¶ 74 (explaining that aesthetic impacts under § 6086(a)(8)
include noise impacts).
¶ 82. The PUC found that any project-related sound impacts would not be undue because
they would “be temporary during the eight-week construction period.” The Holmeses argue that
the PUC’s findings about noise are clearly erroneous. They note that Acorn acknowledged for the
30
first time at oral argument before the PUC that it would be using jackhammers to eliminate bedrock
at the project site and that eight weeks of jackhammering is a significant noise impact.
¶ 83. When understood in context, the PUC’s findings regarding noise are not clearly
erroneous. In November 2017, the Holmeses asked the PUC to conduct an evidentiary hearing on
several § 248 criteria, including noise. The Holmeses argued that grading the project site would
likely require moving bedrock, which the Holmeses alleged could not be accomplished with
“ordinary grading equipment” and would instead require “blasting or drilling” that would create
significant noise impacts. In their opposition, Acorn represented that no blasting would occur at
the project site and therefore no hearing was required. In reply, the Holmeses requested a blasting
prohibition be included as a condition in any CPG and that Acorn “disclose the duration of [the]
site preparation, the machinery to be used, noise levels to be generated, and hours of operation.”
¶ 84. The PUC declined to grant an evidentiary hearing on sound, concluding that the
Holmeses had not raised a substantive issue. The PUC explained that, as a matter of practice,
construction is limited to certain days and certain hours. Furthermore, the PUC noted that Acorn
had already provided a construction schedule, which set out the following:
Construction of the [p]roject will take approximately eight (8)
weeks. During weeks one and two, vegetative management,
grading, construction, staging area delineation, and procurement and
delivering of major equipment will occur. During week three
trenching will be dug and conduit will be run from the point of
interconnection on the north portion of the [p]roject [p]arcel to the
transformer and array area. Pile driving will take place during week
four. The racking, modules, inverters, utility disconnect and meter,
and transformer will be installed during weeks five through seven.
During the eight and final week, wiring is run through the conduit
and the [p]roject is commissioned.
¶ 85. In the final order granting the CPG, the PUC, to ensure sound impacts would not
be undue, limited construction to 7:00 a.m. to 7:00 p.m. Monday through Friday and 8:00 a.m. to
5:00 p.m. on Saturdays with no construction allowed on Sundays or state or federal holidays. The
Holmeses moved for reconsideration, requesting, in part, that the PUC add an additional “condition
31
prohibiting any percussive method of rock removal including ram hoes or jackhammers.” The
PUC denied the Holmeses’ request, explaining that Acorn already agreed to prohibit blasting and
finding that “any [p]roject-related sound impacts [would] be temporary during the eight-week
construction period.”
¶ 86. Considering the entire record, the PUC’s findings regarding noise are not clearly
erroneous. The Holmeses specifically raised concerns regarding blasting and the PUC
incorporated a CPG condition prohibiting blasting. It is true that Acorn mentioned for the first
time at oral argument before the PUC that when grading the project site, jackhammers would be
used to remove bedrock. But the PUC found that the jackhammer noise would not be undue
because it would be temporary. Although the Holmeses allege jackhammers would be used for
eight weeks, this misconstrues the PUC’s finding, which was that any project-related sound
impacts would be temporary during the eight-week construction period. And according to Acorn’s
construction schedule, grading would occur during the first two weeks, which means that
jackhammers would only be used for two weeks.
C. Orderly Development
¶ 87. Prior to issuing a CPG, the PUC must find that a project “will not unduly interfere
with the orderly development of the region.” 30 V.S.A. § 248(b)(1). In making this finding, the
PUC is required to give “due consideration” 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 an affected municipality.” Id. “[S]ubstantial
deference” must be given to “land conservation measures and specific policies contained in a duly
adopted regional and municipal plan that has received an affirmative determination of energy
compliance under 24 V.S.A. § 4352.” 30 V.S.A. § 248(b)(1)(C). Finally, ground-mounted solar
projects must “comply with the screening requirements of a municipal bylaw adopted under 24
V.S.A. § 4414(15) or a municipal ordinance adopted under 24 V.S.A. § 2291(28), and the
32
recommendation of a municipality applying such a bylaw or ordinance.” 30 V.S.A.
§ 248(b)(1)(B).
¶ 88. In this case, the PUC found that the Shoreham Town Plan was neither a land
conservation measure nor a screening requirement of a municipal ordinance or bylaw. It
accordingly reasoned that in making its orderly development finding, pursuant to § 248(b)(1), it
was only required to consider the recommendations of the municipal legislative body and
municipal and regional planning commissions. Based on these considerations, the PUC found that
the project would not interfere with the orderly development of the region in part because (1) the
Shoreham Selectboard, SPC, and Addison County Regional Planning Commission provided letters
supporting the project, and (2) evidence in the record supported the SPC’s recommendation that
the project complies with the Shoreham Town Plan.
¶ 89. On appeal, the Holmeses argue that the project interferes with the orderly
development of the region because it does not comply with the siting requirements of the Shoreham
Town Plan. In addition, the Holmeses argue that in making the orderly development finding, the
PUC should not have relied on the letter of support from the Shoreham Selectboard and SPC
because they did not comply with Vermont’s Open Meeting Law at meetings where they discussed
whether to support the project. Finally, the Holmeses argue that the letter of support is invalid
because it constitutes an unauthorized act.
1. Town Plan
¶ 90. The Holmeses argue the project unduly interferes with the orderly development of
the region because it does not meet the siting criteria contained in the Shoreham Town Plan. They
specifically allege that the Town failed to comply with the Town Plan’s mandate to “seriously
consider the interests of adjoining landowners” and to ensure that the project is located on a “good
site.” Furthermore, the Holmeses point out that because the project is located on productive
33
agricultural farmland, the SPC was required to ensure that the host parcel would continue to be
used for agricultural purposes, which the Holmeses allege the SPC failed to do.
¶ 91. Although the PUC acknowledged that in certain cases it is required to
independently review if a project complies with a town plan, it concluded that it was not required
to do so here. It reasoned that, pursuant to § 248(b)(1), it was only required to consider the
recommendations of the Shoreham Selectboard, SPC, and Addison County Regional Planning
Commission as to whether the project complied with the Shoreham Town Plan because the Town
Plan did not contain land conservation measures and was not a screening requirement of a
municipal ordinance or bylaw.
¶ 92. We agree with the PUC that in some circumstances, it must determine whether a
project complies with a town plan. For example, in Apple Hill Solar LLC, we held that in
determining whether a project will have an undue adverse aesthetic impact, the PUC is required to
consider whether a project violates a clear, written community standard outlined in a town plan.
2019 VT 64, ¶¶ 33-36. In this case, however, § 248(b)(1) does not directly require the PUC to
determine whether a project complies with a town plan; instead, as the PUC correctly concluded,
in making the orderly development finding, it must only consider compliance with town plans to
the extent they qualify as land conservation measures or screening requirements of a municipal
ordinance or bylaw.
¶ 93. Although the Holmeses argue that the project does not comply with the Town Plan,
they present no legal argument as to why the PUC should have independently evaluated whether
the project complies with the siting criteria in the Town Plan. In the absence of any argument that
the Town Plan contains land conservation measures or is a screening requirement of a municipal
bylaw or ordinance, we conclude that the PUC did not err in accepting the SPC’s recommendation
that the project complies with the Town Plan.
34
2. Open Meeting Law
¶ 94. “Vermont’s Open Meeting Law implements the command of Chapter I, Article 6
of the Vermont Constitution that officers of government are trustees and servants of the people
and are at all times, in a legal way, accountable to them.” Severson v. City of Burlington, 2019
VT 41, ¶ 12, ___ Vt. ___, 215 A.3d 102 (quotation omitted). “It protects the interest of the public
to hold its elected officers accountable by, among other ways, requiring meetings of a public body
to be ‘open to the public at all times,’ except when in executive session, and by requiring that the
public be given a ‘reasonable opportunity to express its opinion’ on matters being considered.”
Town of Brattleboro v. Garfield, 2006 VT 56, ¶ 16, 180 Vt. 190, 904 A.2d 1157 (first quoting 1
V.S.A. § 312(a); then quoting id. § 312(h)); see also 1 V.S.A. § 312(c)(1)-(2) (requiring “[t]he
time and place of all regular meetings . . . be clearly designated” and “time, place, and purpose of
a special meeting . . . be publicly announced at least 24 hours before the meeting”); id. § 312(d)(1)
(requiring posting of meeting agenda “[a]t least 48 hours prior to a regular meeting, and at least 24
hours prior to a special meeting”); id. § 312(b)(2) (requiring meeting minutes to be “posted no
later than five calendar days from the date of the meeting to a website, if one exists, that the public
body maintains”). A public body includes “any board, council, or commission of the State or one
or more of its political subdivisions.” Id. § 310(4).
¶ 95. On appeal, the Holmeses argue that the letter of support from the Shoreham
Selectboard and SPC is invalid because both bodies did not comply with Vermont’s Open Meeting
Law at meetings where they discussed whether to support the project. Before addressing the merits
of this argument, we provide some additional factual background. The record indicates the
following.6 On October 17, 2016, Acorn presented their proposed project at an SPC meeting.
6
Although the PUC addressed the merits of the Holmeses’ Open Meeting Law allegations,
it did not discuss or make specific findings regarding the various selectboard and SPC meetings
underlying these allegations. The factual background recounted infra, ¶¶ 95-101, is based on the
record evidence and is relevant context to understanding the Holmeses’ legal arguments on appeal.
35
According to the prefiled testimony of George Gross, a member of the SPC, at a November 14
meeting, the SPC discussed the merits of the project and voted to authorize a letter recommending
the project to the PUC. On November 22, the SPC Chair emailed Greg Pahl, Acorn’s President,
to tell him that at the meeting the week before, the SPC voted to support the project. The next day,
the SPC sent a letter to the selectboard explaining that after viewing Acorn’s presentation about
the project at their October meeting, they were recommending that the project go forward provided
it complied with the Shoreham Town Plan.
¶ 96. The SPC Chair sent Pahl another email on January 19, 2017, explaining that the
SPC could not designate the project location as a preferred site “at this time” because the SPC was
“in the process of dealing with all the issues of Act 174 and [would] designate ‘preferred siting’
as a result of community input along with requirements of the Act.” At a meeting that same day,
the SPC discussed the Acorn project and concluded that the Town Plan would need to be amended
to include preferred siting specifications. On February 16, however, the SPC met and discussed a
recent change in the PUC Rules “that would potentially allow the project to move forward without
having to specify ‘preferred sites’ in the town plan.”7 The minutes indicate that the SPC planned
to discuss the project at the next meeting. However, on February 22, 2017—a day before the next
SPC meeting—the selectboard and SPC Chairs sent a letter to Acorn expressing their support for
the project provided it was “constructed in a manner consistent with the requirements of [the
Shoreham] Town Plan.”
7
See Rule 5.100 § 5.103 (defining “preferred site,” in part, as “[a] specific location
designated in a duly adopted municipal plan under 24 V.S.A. chapter 117 for the siting of a
renewable energy plant or specific type or size of renewable energy plant, provided that the plant
meets the siting criteria recommended in the plan for the location; or a specific location that is
identified in a joint letter of support from the municipal legislative body and municipal and
regional planning commissions in the community where the net-metering system will be located”).
36
¶ 97. On January 3, 2018, the Holmeses sent a letter to the Shoreham Town Clerk
alleging that recent selectboard and SPC meetings violated Open Meeting Law provisions. The
Holmeses alleged, among other things, that the November 21, 2016 and November 13, 2017
selectboard meetings violated 1 V.S.A. § 312(c) because they were not held in accordance with
the Town’s posted schedule. The Holmeses also alleged that the minutes from the November 21,
2017 selectboard meeting were not posted to the town’s website within five calendar days in
violation of § 312(b)(2). With regard to the SPC, the Holmeses alleged that the October 30 and
November 20, 2017 meetings violated § 312(c). The Holmeses requested that any business
conducted at those meetings be voided and reconsidered at a future meeting and sought assurances
that, moving forward, minutes would be posted within the five-day statutory time frame.
¶ 98. On January 18, 2018—before either the SPC or selectboard responded to the
Holmeses’ Open Meeting Law allegations—Therese Holmes asked the selectboard to rescind the
designation of the project location as a preferred solar site. At a January 24 selectboard meeting,
Therese Holmes read a second letter she had filed with the Town alleging additional Open Meeting
Law violations, and she also alleged that a SPC member had a conflict of interest and should have
recused himself from decisions related to the Acorn project. She reiterated her demand that the
selectboard rescind its support for the project. The meeting minutes indicate that she agreed that
the “question of rescinding support be on the agenda for a special meeting or the next regular
[selectboard] meeting.”
¶ 99. At a January 29 special joint meeting, the selectboard and SPC responded to the
Holmeses’ allegations. The selectboard acknowledged that its November 21, 2016 meeting
violated § 312(c) because an agenda was not posted forty-eight hours in advance. It also
acknowledged that the minutes of its November 21, 2017 meeting were not posted to the Town’s
37
website, in violation of § 312(b)(2). The selectboard announced that it planned to revisit the
motions passed at the November 13 and 21, 2017 meetings at its next regular meeting.8
¶ 100. The SPC acknowledged that agendas had not been posted in advance of meetings
and that minutes had not been posted to the Town’s website as required by § 312(b)(2) and
(d)(1)(A). It resolved to post minutes of meetings that occurred within the last twelve months as
soon as possible and to timely post future minutes and agendas. The SPC also committed to
reconsidering any formal resolutions taken since October 30, 2017.
¶ 101. At a February 12, 2018, meeting, the SPC reaffirmed its recommendation of support
for the project.9 On February 14, the selectboard similarly reconsidered and reaffirmed the
motions passed at its November 13 and 21, 2017 meetings regarding hiring an attorney to represent
the Town. In addition, the selectboard addressed Therese Holmes’ January 18 and 24 requests that
it rescind the preferred site designation and its support for the project. The selectboard affirmed
its approval of the project, as outlined in its February 22, 2017 letter, and declined to rescind the
preferred site designation because of the alleged conflict of interest on the part of the SPC.
¶ 102. Considering this history, the PUC found that the “Town of Shoreham
acknowledged that the meetings at which the Shoreham Selectboard and [SPC] decided to support
the project violated several requirements of the Open Meeting Law.” Although the PUC noted
that the Town’s actions “left much to be desired,” it concluded that the selectboard and SPC cured
the Open Meeting Law violations, pursuant to the cure provision of § 314(b), by reconsidering and
reaffirming their support for the project at the February 12 and 14 meetings. The PUC concluded
8
The selectboard found it unnecessary to revisit the business conducted at the November
21, 2016 meeting because “[a]ny motions that might need reconsideration or ratification were
minimal and ha[d] been made moot by the passage of time.”
9
At the February 12 meeting, the SPC also voted to intervene as a statutory party, to
support the selectboard’s decision to hire an attorney to represent the Town, and to post all meeting
agendas and minutes in accordance with the Open Meeting Law.
38
that any further relief related to the Open Meeting Law violations had to be pursued in the superior
court.
¶ 103. The Holmeses argue that the PUC erred in concluding the Town cured the Open
Meeting Law violations because: (1) there was no evidence the selectboard cured the violations;
(2) the cure occurred almost a year after the letter of support was issued; and (3) interested persons
were not given an “opportunity to meaningfully participate in the Town’s decision-making process
prior to the Town’s issuance of a letter of support.”
¶ 104. Although we agree with the PUC that it could rely on the February 22, 2017 letter
of support in making its orderly development finding, it failed to recognize the difference between
ratifying an act and curing an Open Meeting Law violation pursuant to the cure provision of
§ 314(b). The selectboard and SPC ratified the February 2017 letter. They did not, however, cure
the alleged Open Meeting Law violations. Although further relief related to the alleged Open
Meeting Law violations may be available, the PUC correctly concluded that it was without
jurisdiction to adjudicate Open Meeting Law violations.
a. Ratification
¶ 105. “As a general rule, whatever acts public officials may do or authorize to be done in
the first instance may subsequently be adopted or ratified by them with the same effect as though
properly done under previous authority.” Valley Realty & Dev., Inc. v. Town of Hartford, 165 Vt.
463, 466, 685 A.2d 292, 294 (1996) (quotation omitted); see also, e.g., Stalbird v. Town of
Washington, 106 Vt. 213, ___, 172 A. 623, 624 (1934) (holding that selectboard members have
power to ratify if they act “in good faith and for the best interests of the town”); Town of New
Haven v. Weston, 87 Vt. 7, ___, 86 A. 996, 1002 (1913) (explaining that, through power of
ratification, selectboard could authorize treasurer to “borrow money for the town”). Public
officials lack the power to ratify, however, when an action is “void by reason of noncompliance
39
with some mandatory provision of the law.” Valley Realty & Dev., Inc., 165 Vt. at 466, 685 A.2d
at 294 (quotation omitted).
¶ 106. In Valley Realty & Dev., Inc., we held that public officials could ratify actions
taken in violation of the Open Meeting Law. Id. at 470, 685 A.2d at 295-96. In that case, the
plaintiff brought an action against the Town of Hartford arguing that the selectboard violated the
Open Meeting Law by “deciding to purchase a parcel of land in an illegal executive session” and
sought to void the purchase. Id. at 463-64, 685 A.2d at 292-93. While his action was pending, the
selectboard “voted in open session at a regularly scheduled meeting to ratify the purchase.” Id. at
464, 685 A.2d at 293. The trial court held that the selectboard lacked the power to ratify because
the purchase “was void for noncompliance with the open meeting law.” Id. at 466, 685 A.2d at
294.
¶ 107. We disagreed and concluded that the exception to ratification did not apply to the
Open Meeting Law because the Legislature did not intend to make “actions taken in violation of
the open meeting law void and uncorrectable.” Id. at 468, 685 A.2d at 295. The remedy provision,
§ 314, “does not provide that actions taken in violation of the law are void. Instead, it provides
only for ‘appropriate injunctive relief or for a declaratory judgment’ at the request of the attorney
general or a person aggrieved by the violation.” Id. at 466, 685 A.2d at 294 (citation omitted) (first
citing 1 V.S.A. § 314(a); then quoting id. § 314(b)). We also noted that the purpose of Open
Meeting Laws is to “give public exposure to governmental decision-making,” not to “create
vehicles for individuals displeased with governmental action to obtain reversals of substantive
decisions.” Id. at 467-68, 685 A.2d at 295 (quotation omitted). “Although such reversals may
sometimes be a side effect of open meeting law enforcement,” invalidating “public action is often
an ‘extreme remedy’ that may be inappropriate for the underlying violation.” Id. (quoting
Liebeskind v. Mayor & Mun. Council, 627 A.2d 677, 679 (N.J. Super. Ct. App. Div. 1993))).
40
“[A]llowing correction at a properly noticed public meeting,” implements the “purposes of the law
and minimize[s] undesirable consequences.” Id. at 468, 685 A.2d at 295.
¶ 108. In 2014, the Legislature amended the Open Meeting Law by explicitly adding a
“cure” process to the remedy provision, 1 V.S.A. § 314(b)(2)-(4). See 2013, No. 143 (Adj. Sess.),
§ 314. The remedy provision now provides that prior to instituting an action for Open Meeting
Law violations, an aggrieved person or the attorney general must “provide the public body written
notice that alleges a specific violation” and “requests a specific cure.” 1 V.S.A. § 314(b)(1). Upon
receiving written notice of an alleged violation, a “public body shall respond publicly to the alleged
violation within 10 calendar days” by either acknowledging the violation and “stating an intent to
cure” or stating “that no violation has occurred and that no cure is necessary.” Id. § 314(b)(2). A
public body can cure a violation by ratifying “any action taken at or resulting from” a meeting in
violation of the Open Meeting Law at an open meeting and “adopting specific measures that
actually prevent future violations.” Id. § 314(b)(4). If a public body fails to respond to a written
notice of an alleged violation within ten calendar days, however, it “shall be treated as a denial of
the violation.” Id. § 314(b)(3).
¶ 109. Here, the Selectboad and SPC both acknowledged that they failed to respond to the
Holmeses letter alleging Open Meeting Law violations within ten calendar days as required by
§ 314(b)(2). They received the written notice on January 3, 2018 and did not respond until January
29. Section 314(b)(3) specifies that a failure to respond within ten calendar days “shall be treated
as a denial of the violation,” and a statement that no cure is necessary. As such, the selectboard
and SPC cannot avail themselves of the cure process.
¶ 110. We conclude, however, that if a public body fails to comply with the cure provision
in § 314(b), it is not precluded from ratifying acts taken in violation of the Open Meeting Law to
ensure they are “effective and binding.” Valley Realty & Dev., Inc., 165 Vt. at 468, 685 A.2d at
296. The statutory provision the selectboard and SPC failed to comply with, § 314(b)(2), is a
41
mandatory one. “This Court interprets the Legislature as having intended a mandatory time limit
where the statute contains both an express requirement that an action be undertaken within a
particular amount of time and a specified consequence for failure to comply with the time limit.”
Hartland Prop. LLC v. Town of Hartford, 2020 VT 56, ¶ 16, ___ Vt. ___, 237 A.3d 696 (quotation
omitted). Section 314(b)(2) contains an express requirement that an action be undertaken within
a particular time—the public body shall respond to written notice of an alleged violation within
ten calendar days—and a specified consequence for failing to comply—failure to respond “shall
be treated as denial of the violation” and a statement that no cure is necessary. 1 V.S.A.
§ 314(b)(2)-(3).
¶ 111. The cure provision, however, addresses only whether a public body is liable for
attorney’s fees and litigation costs; it does not determine whether a public act is effective and
binding. Cf. In re A.A., 2020 VT 48, ¶ 13, __ Vt. ___, 236 A.3d 1287 (holding that, although
statutory provision was mandatory, it was inapplicable to those particular proceedings). It
expressly provides that a “public body will not be liable for attorney’s fees and litigation costs” if
it cures a violation. 1 V.S.A. § 314(b)(1); see also id. § 314(d) (providing that “court shall assess
against a public body found to have violated the requirements of this subchapter reasonable
attorney’s fees and other litigation costs reasonably incurred in any case . . . in which the
complainant has substantially prevailed” unless the court finds that “the public body cured the
violation”). By its plain text, the cure provision does not determine whether an action taken in
violation of the Open Meeting Law is effective and binding; instead, it addresses whether a public
body will be liable for attorney’s fees and litigation costs if an aggrieved person or the attorney
general brings an action.
¶ 112. It is certainly true that a step in the cure process is ratification at an open meeting.
Id. § 314(b)(4)(A). There is no indication, however, that by adding the cure provision, the
Legislature intended to overrule our conclusion in Valley Realty & Dev., Inc., that ratification at
42
an open meeting is sufficient, by itself, to ensure that actions taken in violation of the Open
Meeting Law are “effective and binding.” 165 Vt. at 468, 685 A.2d at 296. Despite adding the
cure provision, the Legislature did not amend the ultimate remedy for an Open Meeting Law
violation. Section 314(c) provides that, following the process outlined in § 314(b), an aggrieved
person or the attorney general may bring an action for appropriate injunctive or declaratory relief.
We relied upon this specific language in Valley Realty & Dev., Inc., to conclude that public bodies
could ratify actions taken in violation of the Open Meeting Law. See 165 Vt. at 466, 685 A.2d at
294.
¶ 113. Here, even though the selectboard and SPC failed to comply with the cure
provision, they ratified the February 2017 letter at subsequent open meetings. On February 12,
the SPC reaffirmed its recommendation of support for the project. On February 14, the
selectboard—in response to Therese Holmes’ January 18 and 24 requests that it rescind the
preferred site designation and its support for the project—affirmed its approval of the project.
Because the selectboard and SPC ratified the February 2017 letter, it was effective and binding.
b. Jurisdiction
¶ 114. We also agree with the PUC that any further relief related to the Open Meeting Law
violations had to be pursued in the superior court because it did not have jurisdiction to adjudicate
Open Meeting Law violations. “We have repeatedly affirmed that public administrative bodies
have only such adjudicatory jurisdiction as is conferred on them by statute, with nothing presumed
in favor of their jurisdiction.” In re Hinsdale Farm, 2004 VT 72, ¶ 10, 177 Vt. 115, 858 A.2d 249(alteration omitted) (quotation omitted). “The Legislature has made it clear that administrative
departments may exercise only those powers expressly conferred, and that authority cannot arise
through implication.” Id. (quotation omitted).
¶ 115. Section 314(c) of Title One makes clear that the PUC lacks authority to adjudicate
Open Meeting Law violations. It provides that following an acknowledgment or denial of an Open
43
Meeting Law violation, “the Attorney General or any person aggrieved by a violation . . . may
bring an action in the Civil Division of the Superior Court in the county in which the violation has
taken place.” 1 V.S.A. § 314(c). Section 314(c) specifies that the superior court, not the PUC, has
“express authority to oversee violations of the Open Meeting Law provisions.” Negotiations
Comm. of Caledonia Cent. Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶ 11
n.4, 206 Vt. 636, 184 A.3d 236.
¶ 116. This conclusion is consistent with our recent decision in In re Mountain Top Inn &
Resort, JO 1-391, 2020 VT 57, ___ Vt. ___, 238 A.3d 637. In that case, we held that the
Environmental Division has authority to invalidate agency regulations in the course of exercising
its exclusive jurisdiction even though the Vermont Administrative Procedure Act creates a separate
remedy for challenging agency regulations: a declaratory judgment action in the Civil Division of
the Washington Superior Court. Id. ¶¶ 28-35. We concluded there was no evidence that by
creating a separate scheme for challenging agency regulations, the Legislature intended to divest
the Environmental Division of jurisdiction to invalidate agency regulations. Id. ¶ 34.
¶ 117. By contrast, here, we are addressing the scope of an agency’s, rather a superior
court’s, jurisdiction. Whereas we determined that the Environmental Division’s authority to
invalidate regulations arose by implication from the statutory scheme, “[t]he Legislature has made
it clear that administrative departments may exercise only those powers expressly conferred, and
that authority cannot arise through implication.” Hinsdale Farm, 2004 VT 72, ¶ 10. Jurisdiction
is accordingly not “presumed in favor” of an agency’s jurisdiction. Gloss v. Del. & Hudson R.R.
Co., 135 Vt. 419, 422, 378 A.2d 507, 509 (1977). Nothing indicates that the Legislature conferred
the PUC with jurisdiction to adjudicate Open Meeting Law violations, especially when § 314(c)
expressly provides that such actions should be filed in superior court.
44
3. Unauthorized Act
¶ 118. The Holmeses alternatively argue that the February 22, 2017 letter was invalid
because it was only signed by the selectboard and SPC Chairs, and 1 V.S.A. § 172 specifies that
“[w]hen joint authority is given to three or more, the concurrence of a majority of such number
shall be sufficient and shall be required in its exercise.” The PUC concluded that the February 22,
2017 letter was valid because the selectboard and SPC ratified their support for the project at
meetings in February 2018. We agree. As discussed supra, ¶ 113, regardless of whether the initial
February 22, 2017 letter of support was signed by a majority, the selectboard and SPC ratified their
support for the project at the February 2018 meetings.
D. Air Pollution and Greenhouse Gas
¶ 119. Before granting a CPG, the PUC must find that a project will not have an undue
adverse effect on air pollution. 30 V.S.A. § 248(b)(5). In making this finding, the PUC must give
due consideration to greenhouse gas impacts. Id. Here, the PUC found that the project would not
have an undue adverse effect on air pollution or greenhouse gas emissions because it would “not
produce emissions while operating” and the emissions associated with construction would be
“similar to other construction projects of comparable size.”
¶ 120. On appeal, the Holmeses argue that the only evidence supporting the PUC’s
findings on greenhouse gas emissions is the testimony of Nils Behn, the project manager, that the
emissions will be similar to those of other construction projects of comparable size. The Holmeses
maintain that “[g]iven the substantial excavation, regrading, and carting off of materials inherent
in th[e] project, this finding cannot be reasonably supported by the evidence.” Although there is
minimal evidence supporting the PUC’s finding, it is not clearly erroneous.
¶ 121. During the evidentiary hearing, Behn testified that there would be no emissions
associated with the operation of the project, and that although constructing the project would
produce emissions in the form of truck traffic, the emissions would be similar to those of other
45
projects of comparable size. The Holmeses produced no other testimony on the matter and relied
merely on speculation that the excavation, regrading, and moving of materials would produce
undue impacts. Based on the record, the PUC’s findings regarding greenhouse gas impacts are not
clearly erroneous.
E. Wetlands, Water Supply, Soil Erosion
¶ 122. Before granting a CPG, the PUC must find that a project will not have an undue
adverse effect on the natural environment and the use of natural resources, giving due
consideration to impacts on water supply, wetlands, and soil erosion. 30 V.S.A. § 248(b)(5). In
this case, the PUC found that the project would not have an undue adverse effect on wetlands,
water supply, or soil erosion. It determined that the two Class III wetlands on the project site were
not of “particularly high value to the natural environment” and the Agency of Natural Resources
and Army Corps of Engineers were not concerned with the project’s impact on them.
Nevertheless, the PUC found that Acorn had taken steps to protect the Class III wetlands, which
included obtaining the necessary construction permits from the Department of Environmental
Conservation and agreeing to “follow standard erosion prevention and sediment control
construction techniques.” The PUC also found that the project would not affect any existing water
supplies as defined in 10 V.S.A. § 6086(a)(3). Although the Holmeses discussed a natural spring
on their property during oral argument, the PUC found that the spring was not an existing water
supply.
¶ 123. On appeal, the Holmeses argue that the PUC erred in finding the project would not
have an undue adverse effect on wetlands and water supply because they presented credible expert
testimony that grading the project site—specifically lowering the rock ridge separating the two
Class III wetlands—would likely dewater a spring on their property that creates the wetlands.
Furthermore, the Holmeses contend that the PUC erred in finding that the spring on their property
46
was not an existing water supply because they provided extensive testimony outlining how the
spring provides economic, ecological, and agricultural value to their property.
¶ 124. Even assuming the spring on the Holmeses’ property is an existing water supply
within the meaning of 10 V.S.A. § 6086(a)(3), they have not demonstrated the PUC erred. The
PUC was presented with conflicting evidence regarding how grading the project site would affect
the Class III wetlands on the project site and the spring on the Holmeses’ property. According to
Acorn’s expert, grading the site and lowering the rock ridge separating the two Class III wetlands
would not impact the wetlands or the spring. The Holmeses’ expert disagreed, testifying that
wetlands are in their place because of interaction between the bedrock and groundwater discharge
and that lowering the rock ridge could have a profound impact on the wetlands and the spring.
¶ 125. “It is for the [PUC], not this Court, to weigh the evidence and assess the credibility
of witnesses.” In re UPC Vt. Wind, LLC, 2009 VT 19, ¶ 21, 185 Vt. 296, 969 A.2d 144.
Acknowledging conflicting evidence in the record, the PUC credited Acorn’s expert witness,
explaining that Acorn’s expert testimony was based on tests performed at the project site and was
consistent with the conclusions reached by the Agency of Natural Resources and the Army Corps
of Engineers. By contrast, the Holmeses’ expert did not visit the project site and characterized his
testimony as a belief based on limited information. Thus, even assuming the spring qualifies as
an existing water supply, the PUC did not err because it weighed the evidence and credited Acorn’s
witness.
F. Transportation
¶ 126. The Holmeses argue that the PUC’s findings regarding transportation effects are
clearly erroneous. The PUC is required to consider whether a project will “cause unreasonable
congestion or unsafe conditions with respect to use of the highways.” 10 V.S.A. § 6086(a)(5).
The PUC found that the project would not result in undue traffic or congestion because the project
would only increase traffic for a short period of time and to a lesser extent than the traffic levels
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the PUC has approved for other projects. Besides asserting the PUC erred, the Holmeses make no
specific argument as to why these findings were clearly erroneous, and we conclude there was no
error.
VIII. Setbacks
¶ 127. Finally, the Holmeses argue that the PUC erred in granting the CPG because the
project does not meet minimum setback requirements.10 Section 248(s) of Title 30 sets minimum
setback requirements that “apply to in-state ground-mounted solar electric generation facilities.”
The minimum setback requirements for a plant greater than 15 kW and less than or equal to 150
kW are forty feet from a state or municipal highway and twenty-five feet from “each property
boundary that is not a [s]tate or municipal highway.” Id. § 248(s)(1)(A)(ii), (B)(ii); Rule 5.100
§ 5.113. Here, the PUC concluded that the project would meet minimum setback requirements
because it would be “set back more than 40 feet from the nearest road and more than 25 feet from
the nearest property boundary line.” The PUC specifically found that the project would be set
back from the surrounding property lines by the following distances: “270 feet (north), 166 feet
(south), 50 feet (east), and 576 feet (west).”
¶ 128. The Holmeses argue that the PUC erred because the project’s construction staging
area does not meet the minimum fifty-foot setback requirement from the northern property
boundary. There are numerous flaws with this argument. First, as noted above, for a 150-kW
plant, the relevant setback requirement from a property boundary that is not a state or municipal
highway is twenty-five feet, not fifty feet. Second, the Holmeses cite to a rendering of where the
construction staging area would be located. They point to no evidence actually demonstrating that
the construction staging area would not meet the twenty-five-foot setback requirement.
Nevertheless, even assuming the construction staging area would violate the setback requirement,
10
Acorn argues that the Holmeses do not have standing on the setback issue. For the
reasons articulated, supra, ¶¶ 62-63, we conclude that the Holmeses have standing.
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it is not subject to the setback requirement. A setback is defined as the “shortest distance between
the nearest portion of a solar panel or support structure for a solar panel, at its point of attachment
to ground.” 30 V.S.A. § 248(s)(4)(B) (emphasis added).
Affirmed.
FOR THE COURT:
Associate Justice
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