Saturday, November 28, 2015

Messing with Future Plans

In re Petition of VTel Wireless Inc., 2015 VT 135

By Andrew Delaney

What do you do when someone else’s plans are going to mess with your plans? Is the future impact on your plans enough to put you in a position to stop the other’s plans? Of course "it depends." I hope you weren't expecting a straight answer.

Back in May 2014, VTel Wireless sent a statutorily required prefiling notice that it intended to seek a certificate of public good (CPG) for a planned telecommunication project in Bennington. The notice was sent to various agencies and all adjoining landowners. The idea was to bring high-speed wireless internet to unserved and underserved homes and businesses in the area. The proposed project consisted of a 90-foot cell tower (with attached antennas), a storage container on a concrete pad, and underground power lines.

Various illustrative aids and documentation were attached, which VTel claimed showed that the project would have a minimal aesthetic impact, and was compliant with town and regional plans and FCC regs.

The notice also outlined the statutory review process, and explained that the project was “of limited size and scope,” which means it was subject to expedited review. The notice explained that the deadline to submit comments or formally intervene once the application was filed was 21 days and that the Public Service Board (PSB) would issue a decision in 45 days unless there was some kind of snafu.

VTel filed its formal application with the PSB a couple months later. The application included prefiled testimony, numerous exhibits (including all the prefiling exhibits), and a project narrative. The application covered the project’s compliance with the “limited size and scope” criteria. With respect to aesthetics, the application went through the two-part Quechee Lakes test. VTel argued that the project wouldn’t have an adverse impact, and even if it did, the adverse impact wouldn’t be undue—basically, the pitch was wireless development is good and VTel did its damndest to make the project fit with the landscape and be unobtrusive.

Adjoining landowners were sent copies of the application, which explained that the deadline for intervention was August 12 and if one wanted a hearing, one must raise a “significant issue” with one or more of the substantive criteria for the project. Two of those landowners—Susan Beal and David Pearson—moved to intervene as of right because the project was adjacent to an area of their property that was slated for later development and would have an adverse impact on desirability and aesthetics of the future development. They attached letters from the potential developer and buyers. They requested a hearing, noting that the potential adverse impact could be remedied simply by moving the proposed project 1,200 feet from the proposed site. They attached a bunch of letters from tenants and neighbors about the anticipated adverse impact.

The Public Service Department wrote to the Board essentially saying the thing looked okay to it, but reserved its final recommendation until the Beal-Pearson intervention and hearing-request issues were resolved. VTel filed a memorandum in opposition to the Beal-Pearson motion arguing that the Beal-Pearson financial interests and private views didn’t warrant intervention and didn’t require hearing. The Beal-Pearson camp responded with—and I’m liberally paraphrasing here—“do too.”

The Board sided with VTel, and concluded that Ms. Beal and Mr. Pearson “had not shown a ‘substantial interest’ under Board rules that would entitle them to intervene in the proceeding.” The Board found that Ms. Beal and Mr. Pearson had not raised a significant issue that warranted a hearing. And finding “that the project would promote the general good of the State, the Board issued a CPG for the project conditioned on its construction, operation, and maintenance in accordance with the evidence and plans submitted by VTel.”

Ms. Beal and Mr. Pearson appeal.

The SCOV first notes the “limited nature” of its review of the PSB’s issuance of a CPG. My feeling is that, in general, “limited nature” of review is the death knell for an appellant. When the SCOV throws phrases like “great deference to the Board's expertise and judgment” in as it expands its explanation of the applicable standard, it seems like a done deal.

But let’s at least see what happens. Ms. Beal and Mr. Pearson argue that the Board screwed up in two respects: (1) when it concluded they lacked a substantial interest warranting intervention; and (2) when it determined they failed to raise a significant issue under any of the relevant criteria warranting a hearing.

The SCOV notes that Ms. Beal and Mr. Pearson “were afforded ample notice of the statutory requirement that they submit material sufficient to ‘raise a significant issue with respect to the substantive criteria’ applicable to the project.” Or, in other words, they had plenty of notice.

The SCOV reasons that the Board gave due consideration of the project’s aesthetic impacts under the Quechee standard. The SCOV points out that the Board found: (1) that the project had a relatively short tower and that the woods would screen most of it from view; (2) that the tower would be minimally visible; (3) that the flush-mounted antennas would minimize visibility; and (4) that using an existing access road would avoid the need for any additional clearing. In light of those findings—which the SCOV concludes are supported by the record—the Board’s decision was justified.

Ms. Beal and Mr. Pearson maintain that the Board screwed up when it dismissed as “as irrelevant a project’s aesthetic impact on private parties.” It appears that under the right circumstances, this could be an error. But here, the SCOV reasons that the Board actually considered the private-party-aesthetic-impact issue, but concluded that in light of the circumstances, Ms. Beal and Mr. Pearson failed to raise a “significant issue” as required—not that the Board wholly dismissed the consideration out-of-hand.

The SCOV, discerning “no basis to disturb the judgment,” affirms.

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