Saturday, July 30, 2016

Solar Split

In re Rutland Renewable Energy, LLC, 2016 VT 50

By Andrew Delaney

Here we have the Town of Rutland (Town), five adjacent landowners (neighbors), and Rutland Renewable Energy, LLC (RRE) duking it out over a certificate of public good (CPG) for a 2.3 megawatt solar facility. The Town and neighbors say the Vermont Public Service Board (PSB) screwed up when it concluded that the project wouldn’t unduly interfere with orderly development and wouldn’t have an unduly adverse impact to aesthetics and gave RRE the CPG.

Let’s grossly oversimplify ‘cause that’s kinda what we do here. RRE filed a petition to put in a solar facility in Rutland. Neighbors ranged from about 150 feet away to 500 feet away. The neighbors and the Town did not like the idea of the solar facility up in the ‘hood. There are some wetlands on the proposed project site and the parcel is classified as “industrial/commercial” on the Town’s Future Land Use Map. The project includes almost 550 solar panels and accompanying inverters and transformers, plus a perimeter fence, a new curb along one of the roads, and new access areas and extension of existing access areas.

The PSB granted neighbors and the Town permissive intervention, assigned a hearing officer, and had a hearing. The Town and neighbors took particular issue with: (1) whether the project would unduly interfere with the orderly development of the region; (2) whether the project would have an undue adverse effect on aesthetics; and (3) whether the project would have an undue adverse effect on historic sites. The hearing officer took evidence and found that the criteria for a CPG were met provided that certain mitigation measures were put in place—more on that later.

The PSB went along with most of the hearing officer’s decision and rationale, though it did modify the aesthetics rationale a bit and add a mitigation measure. Neighbors moved for reconsideration and the PSB said “No,” which is a perfect opportunity to link to this goofy Meghan Trainor song. That brings us to the SCOV’s door.

A significant part of the Town’s and the neighbors’ opposition relies on the “Town of Rutland Solar Facility Siting Standards,” which are an adopted amendment to the Town plan. In a nutshell, the document includes setbacks generally of 200 feet and 500 feet minimum from historic structures, and prohibits locating a project “on primary agricultural soils.”

The project does not jibe with the Solar Facility Siting Standards and nobody is claiming it does.

The Town and the neighbors primarily argue that the PSB failed to give the standards due deference and consider the-project-will-interfere-with-the-orderly-development-of-the-region argument, and that the facility will have an undue adverse impact “aesthetics, historic sites, and primary agricultural soils.”

The SCOV majority notes the highly deferential standard of review in these cases. To borrow a colorful phrase, the standard of review could be phrased as: “Shoveling **** against the tide.” The PSB’s decision is only going to get reversed for clear error. So, if the PSB says something like “a frog is blue,” the SCOV might say, “Well, a frog is green, which is a mixture of blue and yellow, so there’s no clear error here.” I’m just making that up—maybe a blue frog is clear error or maybe the frog really is blue. Who knows?

Here, to make a long story short, the majority concludes that the Town’s and the neighbors’ gripe about not considering the standards document doesn’t hold up. The orderly development consideration applies to the region as a whole, not a particular town. The majority notes that one of its previous decisions on this point may have led to some legislative amendments that offer more municipal input into the decision-making process (specifically requiring “due consideration” of such recommendations). But that wasn’t the case when RRE filed its application; nor was that the case when the PSB issued the CPG. The last line could end with a D-O-double-G.

So the majority takes a whole bunch of arguments that have potential relevance under the new version of the statute and files them in the circular filing cabinet.

There was very little evidence regarding regional impacts—almost the entire focus was on the Town. The PSB noted (and the majority points it out) that the “impacts are primarily localized in nature.” Essentially, the PSB considered the regional-impact argument, found it lacking, and that was within the PSB’s discretion. Regional impacts isn’t gonna do the trick.

The majority then turns to the adverse-impact-on-aesthetics-and-historic-sites arguments. Aesthetic impact is determined under a modified version of the so-called Quechee test. This refers to an old environmental court decision and has been referred to and approved of in a number of SCOV decisions, including this one—because we never pass up an opportunity to self-promote.

The first question is whether the project will have an adverse effect on scenic and natural beauty in the area where it is. That’s a 10-4 here. But then we look at three conditions to determine whether the impact is undue. In order to avoid an undue-adverse-impact finding, the project has to not violate a clear, written community standard intended to preserve prettiness; next it can’t offend the sensibilities of the average person; and finally, the applicant has to take steps to improve harmony with the surrounding area.

The Town and the neighbors say none of the factors are met. The PSB disagreed and the majority sides with the PSB. The setbacks are essentially zoning requirements—not specific to any area or aesthetics. So that’s out. There’s a quick trip back to the old-statute-gives-the-board-more-discretion point to let the majority sidestep the Town’s solar-siting standards.

The Town didn’t identify this area as an area for special protection or anything. And, in fact, the site is zoned industrial/commercial. It’s a low-lying meadow and doesn’t interfere with views. There’s no violation of clear, written community standards.

Turning to the offensive-to-the-average-person’s-sensibilities argument, the majority again defers to the PSB’s conclusions. The PSB considered the neighbors’ sensibilities but concluded that in the end, it’s an average-person test.

The majority refers to this case as controlling and opines that while reasonable consideration is given to the visual impacts on neighboring landowners, in the end it is an average-person test. The majority points out that the PSB included anyone looking at the view in its average-person’s-sensibilities consideration, and in this sense, might’ve gone even a little more subjective than it needed to.

Then there’s a tiff about the setback but because the neighbors didn’t offer an alternative, that doesn’t go very far. The majority concludes that the PSB’s is “well within its discretion, and the Neighbors did not offer a fully formed proposal for an alternative setback requirement.”

The majority takes a few paragraphs to say the dissent’s case doesn’t apply. The basic idea is that the dissent is arguing that an applicant has to show that adverse-aesthetic-impact-reducing sites aren’t available to move forward. The majority doesn’t see it that way. The majority asserts that the dissent is trying to take an on-the-land-owned proposition and apply it in an anywhere-else-in-town manner. And in the majority’s view, that’s an unreasonable burden. 

The majority also rejects the undue-impact-on-historic-sites argument, concluding that reliance on the independent analysis by the Vermont Division for Historic Preservation and the record as a whole justified the PSB’s finding of a lack of an undue adverse impact on historical sites.

Justice Robinson concurs. The critical unanswered question for Justice Robinson is: “[W]hat does the Board have to do in order to give ‘due consideration’ to the recommendations of municipal legislative bodies and planning commissions?”

The majority doesn’t get into it because there’s little evidence of the regional impact. The dissent points out all the times the PSB sort of ignored the standards provided by the Town, but doesn’t provide a workable framework to address what “due consideration” means. Justice Robinson affirms the PSB’s decision because the statute, as applicable, doesn’t require any deference to the Town’s standards.

Justice Robinson appears sympathetic to the Town’s argument that the PSB has “turned a deaf ear” to its concerns, but concludes that “this Court is not empowered to rewrite the statute to respond to the Town’s critique.” The Legislature needs to do something about it.

The Legislature doesn’t bother to define what “due consideration” means. “Instead, its admonition that the Board must afford the Town's standards ‘due consideration’ is reminiscent of the phrase, ‘with all due respect,’ which invariably precedes and qualifies a statement evincing little to no respect at all.” That’s one of the realest statements I’ve read in any court opinion lately.

For the concurrence, “due consideration” is a phrase with little value. And the Town’s suggested “bad faith” standard is unworkable. So, Justice Robinson concurs with the majority in all respects except for the lack-of-evidence-constitutes-due-consideration piece.

Chief Justice Reiber (joined by Justice Eaton) dissents, reasoning that there was no due consideration given to the Town’s recommendations and standards. “ ‘Due consideration’ of the Town's recommendations and concerns required a more balanced approach which, if properly applied, might well have produced a different result.”

The Chief Justice diligently lists all the instances where the PSB ignored or avoided the Town’s standards and recommendations, ultimately concluding that there was no “due consideration” here.
This is a fairly nuanced opinion from an as-divided-as-it-can-get SCOV. It ain’t gonna be the last time we hear about these issues in my view.

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