In successive months this fall, SP&F obtained successful results for its clients in two significant cases pending before the Vermont Public Utility Commission (formerly, the Public Service Board).
In the first case, captioned Petition of Vermont RSA Limited Partnership and Cellco Partnership, for a certificate of public good, pursuant to 30 V.S.A. § 248a, for the installation of telecommunications equipment in Waterbury, Vermont, Docket No. 8601, decided September 21, 2017, SP&F represented the Towns of Waterbury and Stowe in opposing the proposed siting and construction of a Verizon cell tower in an area identified in municipal planning documents as a critical wildlife corridor. Working in conjunction with the Agency of Natural Resources and neighboring property owners, SP&F attorney Joe McLean presented evidence and argument on behalf of the Towns that the proposed project did not meet the criteria for siting telecommunication facilities.
Following an evidentiary hearing, the Public Utility Commission agreed with the project opponents and rejected Verizon’s CPG application. In so doing, the Commission found that the project would have an undue adverse effect on rare and irreplaceable natural areas and necessary wildlife habitat. Significantly, the Commission also concluded there was not sufficient “good cause” to reject the Waterbury Selectboard’s recommendation to relocate the project outside of the Town’s conservation zoning district to an area that was not critical wildlife habitat, which Verizon had refused to do. Ultimately, the Commission concluded that the project would not promote the general good of the State and denied the CPG request. Verizon did not appeal the Commission’s decision, which is now final. This is an important case for Vermont municipalities because, after hundreds of CPG applications, it represents the first time that the Public Utility Commission has ever denied an application for a telecommunication facility and the first time that the Commission has relied on the recommendations of a municipal legislative body in doing so.
In the second case, captioned Investigation pursuant to 30 V.S.A. §§ 30, 209, and 248 regarding the 2.2 MW solar plant owned by Charlotte Solar, LLC in Charlotte, Vermont, Docket No. 8638, decided October 23, 2017, attorney Joe McLean represented the Town of Charlotte in an enforcement action against a solar developer who had failed to comply with the aesthetic mitigation requirements of its CPG approval and a prior stipulation with the Town. After the developer admitted non-compliance and negotiated the details of a new landscaping plan, the parties – which included the developer, the Town, the Department of Public Service, and a neighbor – failed to agree on an appropriate penalty. The developer argued for a fine of $5,000, while the other parties argued for a significantly higher penalty. The Town also sought to recover its attorney’s fees in connection with the enforcement action under the bad faith exception to the “American Rule,” which applies where a party is forced to endure a second round of litigation to secure a “clearly defined and established right which should have been freely enjoyed” without the need for further judicial intervention. Following an evidentiary hearing, the Commission’s Hearing Officer recommended an enforcement penalty of $20,000 and also awarded the Town almost all of its attorney fees. Ultimately, the parties entered into a post-hearing memorandum of understanding, approved by the Commission, that included a stipulated penalty of $30,000 (instead of the $20,000 recommended by the Hearing Officer) and payment to the Town of its attorney’s fees. The case sends a strong message to developers of renewable energy projects that there may be a steep price to pay for failure to honor agreements with municipalities regarding aesthetic mitigation or landscaping plans that are incorporated into CPG approvals.
Please contact Joe McLean, who represented the towns in the above-referenced cases, with any questions regarding Public Utility Commission matters.