Posted by: Patricia Salkin | September 4, 2019

VT Supreme Court Rejects Collateral Estoppel Argument in Case Involving Proposed Solar Electric-Generation Facility

This post was authored by Matthew Loeser, Esq.

In 2015, appellee Apple Hill Solar LLC filed a petition with the Public Utility Commission (“PUC”) approving PUC requesting a certificate of public good (“CPG”) for a proposed 2.0 megawatt, grid-connected solar-electric generation facility in Bennington. Appellants Libby Harris and the members of the Apple Hill Homeowners Association lived near the proposed project site. The Town of Bennington also intervened in the proceedings and argued that the project should not be granted a CPG because it would unduly interfere with the orderly development of the region, would have an undue adverse impact on aesthetics, and would “violate the clear, written community standards in the Town Plan to protect the high scenic quality of this gateway area located in the Rural Conservation District.” After Apple Hill agreed to various changes to mitigate the aesthetic impact of the project, the Town selectboard changed its position, voting to “not oppose Apple Hill on the grounds that the Project fails to comply with the Town Plan in effect when the application was filed.” In this case, the neighbors appealed the decision of the PUC approving the issuance of the CPG for the project.

On appeal, Harris and the Homeowners Association contended based on the PUC’s holding in its recent Chelsea Solar decision, that collateral estoppel and established precedent precluded the PUC from concluding in this case that the proposed solar project would not violate a clear, written community standard reflected in the Bennington Town Plan. Even assuming that the doctrine of precedent would apply to the Chelsea Solar determination, rather than it being a case-specific factual finding, the court noted that administrative agencies are free to depart from their precedents if they decide that law they previously declared is “unsound and ought not to be followed.” Accordingly, the PUC was not bound to its decision in Chelsea Solar, so long as its departure from its prior holding did not rest on basis that were arbitrary, unreasonable, or discriminatory.

The court first found that PUC’s conclusion that the proposed project would not unduly interfere with orderly development of the region under § 248(b)(1) rested on findings that did not support it. Here, the selectboard’s decision not to oppose the project as violating the Town Plan, upon which the PUC heavily relied, did not necessarily equate to a finding that the project would not unduly interfere with orderly development of the region. The record further reflected that the Town repeatedly emphasized that it had “taken no position as to the Project’s overall compliance with the Town Plan.” As such, the court remanded the matter for the Commission to assess the impact of the project on the orderly development of the region in light of the Town Plan without consideration of the selectboard’s purported position on the subject.

The court next found that the evidence the PUC relied on in concluding that the Town inconsistently applied the Rural Conservation District standards was the Town’s decision not to affirmatively argue that the Apple Hill project ran afoul of the Town Plan. The court further found that the Town’s decision not to oppose the Apple Hill project on the basis of the Town Plan did not constitute a change of position as to the impact of the Town Plan. Additionally, the Town Planner’s testimony confirmed that the Town Plan did not categorically preclude solar projects. As there was no evidence that this reflected a new or inconsistent position by the Town, the court held that the PUC erred in declining to actually apply the standard in the Town Plan in evaluating whether the project’s adverse effect would be undue. Thus, the case was reversed and remanded for further proceedings.

In re Apple Hill Solar LLC, 2019 WL 4230608(VT 9/6/2019)

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