Sunday, May 6, 2012

On the Sunny Side of the Street



In re Petition of Cross Pollination, 2012 VT 29 (mem.).

In the law, success occasionally brings legislative change.  If David defeats Goliath on a technicality today, you can be sure that the Philistine lobbyists will be in the statehouse tomorrow urging the General Assembly to close that loophole.

So it was that a series of victories against proposed electrical power generating projects at the Act 250 and local zoning level gave way to a quiet, but massive, reform in how such projects are reviewed.


Twelve years ago, a developer hoping to install a windmill, a biomass plant, or a coal-powered electrical generation station would have had to go through at least three different processes. 

She would have had to apply to the zoning administrator for a zoning permit to review the site plan and its conformance to local standards. 

Then she would have had to apply to the local district commission for an Act 250 permit.

Finally, she would have been able to go to the Public Service Board for a certificate of public good.

All of which would have been necessary before a shovel could hit the earth.  If you have been reading this blog, you have some sense of the havoc that a well-funded or savy opponent could make of such a gauntlet, and indeed, the late 90s and early 00s were marked with a number of cases where the kibosh was put on a proposed generating plant for reasons other than its economic or reliability issues. 

That has completely changed over the past few years as modifications to 30 V.S.A. § 248 and § 248a have combined these processes and others into one single review before the Public Service Board. 

Now, an applicant seeking to erect a windmill only has to go to the Public Service Board for her permits.  There she gets the equivalent of Act 250 review and local zoning consideration.  As you can imagine, utility regulators have had their own, unique spin on the land use and environmental standards that they have suddenly had to start applying. 

This is, in the way of a shaggy dog, to explain why the PSB in today’s case finds itself acting as a district commission and applying land use regulations to a solar farm.

The facts of the case are straightforward.  Applicant sought a certificate of public good from the PSB for a solar farm along Route 7.  Appellant, a neighbor to the project, opposed it.  After a hearing before a PSB officer, which was adopted by the PSB, a certificate of public good issued.  On appeal, Appellant challenges only the question of aesthetics.

For any land use attorney, the term aesthetics conjures up a very specific legal standard.  A project fails on aesthetics if it creates an undue adverse aesthetic impact.  This comes from criterion 8 of Act 250, and it looks to prevent development that adversely affects the appearance and character of the neighborhood in an undue manner than is shocking to the average person. 

Look carefully at the last paragraph, and you will see a two part test.  The first test asks whether the project creates an adverse impact.  To make this finding, the court, commission, or board must look to the context of the neighborhood.  Is this a giant box store being plopped down among modest brick storefronts?  Or is this a slightly-larger residential structure proposed for a neighborhood of single family homes and yards.

Even if an impact is adverse, it does not necessarily violate Criterion 8.  After all, Frank Lloyd Wright’s Falling Waters was adverse to its location.  To truly violate the aesthetic criterion, a project’s adverse impact must trigger the second part of the test and be undue. 

What undue means is a bit subjective.  Three main areas define the concept.  First, if it violates any written community standard intended to protect aesthetics—such as a town plan or historic preservation bylaw—then the impact is undue.  Second, if the project is offensive or shocking to the reasonable person, then the impact is undue.  Finally, the deciding panel, will look to mitigating steps available and taken by the applicant.  Some impacts are undue, but can be mitigated to an acceptable level.  All three areas must be met for an adverse project to avoid a determination of undue.

Appellant challenges this final category arguing that the solar farm violates the town plan and is shocking to the reasonable person.  Unfortunately, these are factual arguments, and the SCOV reviews the findings of the PSB on a highly deferential basis, reversing only for plain error. 

While Appellant would no doubt like to re-try his case and put on new experts, the record on appeal favors the solar farm developer, and the SCOV takes very little time concluding that the evidence rationally supports the findings of the PSB.  The SCOV is helped, in part, by the fact that the PSB is not acting as a surrogate Act 250 district commission.  It is reviewing the aesthetics criterion as part of a larger review that includes the economic need and costs of such a project.  These criterion are not present for Act 250, and they likely go some way to strengthening the PSB’s decision in the eyes of the SCOV.

Case is dismissed and permit is affirmed.  Look for the new solar farm next time you are driving through New Haven.  On a positive note Appellant can expect his new neighbors to be like well-behaved children: quiet and bright.

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