In re Vermont Electric Power Co., Inc.
Annotate this Case
In Vermont Electric Power Co. (2005-164); 179 Vt. 370; 895 A.2d 226
2006 VT 69
[Filed 10-Mar-2006]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2006 VT 21
No. 2005-164
In re Petitions of Vermont Electric Power Company, Inc. Supreme Court
and Green Mountain Power Corporation
On Appeal from
Public Service Board
November Term, 2005
Michael H. Dworkin, Chair
Joseph S. McLean and Robert E. Fletcher of Stitzel, Page & Fletcher, P.C.,
and Thomas A. Little of Little & Cicchetti, P.C., Burlington, for Appellant
Town of Shelburne.
James A. Dumont, Bristol, for Appellants Town of New Haven, Town of
Middlebury and Addison County Regional Planning Commission.
David L. Grayck of Cheney, Brock & Saudek, P.C., Montpelier, for Appellant
Meach Cove Real Estate Trust.
Aaron Adler and Dixie Henry, Special Counsel, Montpelier, for Appellee
Department of Public Service.
Kimberly K. Hayden and Elijah D. Emerson of Primmer & Piper, P.C., St.
Johnsbury, for Appellees Vermont Electric Power Company and Green Mountain
Power Corporation.
PRESENT: Reiber, C.J., Skoglund and Burgess, JJ., and Gibson, J.
(Ret.) and Bryan, Supr. J. (Ret.), Specially Assigned
¶ 1. SKOGLUND, J. In this case we consider three appeals from a
Public Service Board order granting a certificate of public good for a
proposal by Vermont Electric Power Company (VELCO) and Green Mountain Power
(GMP) to construct a series of electric transmission upgrades known
collectively as the Northwest Reliability Project. Appellants the Town of
New Haven, the Town of Middlebury, and the Addison County Regional Planning
Commission (FN1) jointly contend the Board erroneously: (1) approved a
345-kilovolt (kv) transmission line for a portion of the project instead of
a less intrusive but allegedly adequate 115-kv line; (2) misstated and
ignored relevant evidence concerning electromagnetic fields generated by
the 345-kv transmission line; (3) failed to consider a proposal to
underground the line in an environmentally sensitive location in the Town
of New Haven; and (4) prejudiced landowners in future eminent domain
proceedings by approving VELCO's specific plans. Appellant Town of
Shelburne (Shelburne) claims that the Board improperly failed to: (1)
identify a specific southerly route for the proposed transmission line
through the Town; (2) address the aesthetic impacts of the proposed line;
(3) consider land conservation measures in the Town plan; and (4) make a
final determination of VELCO's responsibility to underground a portion of
the line. Appellant Meach Cove Real Estate Trust (Meach Cove) argues that
the Board violated statutory requirements and settled case law by: (1)
mandating a specific route for the proposed transmission line over its
property; (2) depriving it of the opportunity to contest key issues in
future eminent domain proceedings; (3) denying its request for a
declaration that issuance of the certificate of public good will not have a
preclusive effect in subsequent eminent domain proceedings; and (4) failing
to consider alternative sites for construction of the proposed line. For
the reasons set forth below, we affirm the Board's decision.
¶ 2. In June 2003, VELCO and GMP (hereafter, collectively
"VELCO") filed petitions with the Board seeking a certificate of public
good (CPG) for a set of transmission upgrades in the northwestern portion
of the State. See 30 V.S.A. § 248(a) (providing that no electric company
may begin site preparation or construction of electric generation or
transmission facility, or exercise the right of eminent domain in
connection therewith, unless the Board "first finds that the same will
promote the general good and issues a certificate to that effect"). In its
petition, VELCO asserted that projected increases in electric demand in
northwestern Vermont, measured against certain national and regional
operating standards, made it imperative to strengthen the transmission grid
serving the area in order to maintain desirable levels of reliability. To
this end, VELCO proposed five basic upgrades: (1) the construction of a new
35.5-mile, 345-kv transmission line from West Rutland to New Haven,
parallel to an existing 115-kv line passing through a number of towns,
including appellants Middlebury and New Haven; (2) replacement of existing
34.5-kv and 46-kv subtransmission lines with a new 27-mile, 115-kv line
between New Haven and South Burlington passing though portions of several
additional towns, including appellant Shelburne; (3) the reconductoring of
VELCO's existing 5.6-mile, 115-kv transmission line between Williamstown
and Barre; (4) upgrades to, or reconstruction of, a number of substations
throughout the northwest region; and (5) construction of a new substation
and associated 1.6-mile subtransmission line in Vergennes.
¶ 3. During thirty-seven days of public and technical hearings
that spanned most of a year, the Board took extensive and wide-ranging
testimony and documentary evidence concerning the project from expert and
lay witnesses representing several dozen parties. See id. § 248(a)(4)
(requiring the Board to hold both "nontechnical" public hearings in
counties affected by the proposal and "technical" hearings at locations of
its choice). The hearings addressed both general and site-specific issues
relating to the statutory criteria for issuance of a CPG under § 248(b),
including the project's consistency with "land conservation measures"
contained in local municipal plans, id. § 248(b)(1); its necessity to meet
present and future demand for service that could not otherwise be met "in a
more cost effective manner through energy conservation programs and
measures and energy efficiency and load management measures," id. §
248(b)(2); its "economic benefit to the state and its residents," id. §
248(b)(4); and whether it would "have an undue adverse effect on esthetics,
historic sites, air and water purity, the natural environment and the
public health and safety, with due consideration having been given to"
several of the statutory criteria for protection of the environment set
forth in Act 250, id. § 248(b)(5). Appellants participated actively in
the hearings, offering evidence to support their views on the best means to
protect the aesthetic, health, environmental, and economic interests of
their communities.(FN2)
¶ 4. At the conclusion of the process, the Board issued a written
order spanning over 240 pages, including appendices, and containing over
640 findings in support of its conclusions. In brief, the Board determined
that: the current bulk transmission system fails to meet reliability
standards; the proposed project will enable the system to satisfy Vermont's
reasonably projected reliability needs; and "there is no cost-effective
alternative to the proposed Project that is reasonably assured of timely
implementation."(FN3) While finding that the project will have adverse
aesthetic impacts in certain areas, the Board concluded that mitigation
measures, such as careful pole placement, screening, the relocation of the
New Haven substation, and undergrounding the line in at least one location
in Shelburne, will ensure that the impact is not undue. With respect to
health and safety concerns, the Board heard substantial testimony and
reviewed numerous studies concerning electric and magnetic field (EMF)
exposure. The Board concluded that the scientific evidence of any health
risk was weak to nonexistent and provided no justification for imposing
significant mitigation measures, such as undergrounding the line.
Nevertheless, as part of the post-certification process, the Board ordered
VELCO to identify areas of relatively high EMF levels near residences and
propose measures to mitigate exposure at those locations, and to monitor
and regularly report to the Board the scientific evidence regarding the
health effects of EMF.
¶ 5. In short, the Board concluded that, with certain enumerated
conditions and alterations, the project would promote the general good of
the State "without undue adverse impacts on Vermont's natural and built
environment and without presenting a risk to Vermonters' health and
safety." Consistent with these findings, the Board issued a CPG containing
twenty separate conditions, including a graduated post-certification
process that will require: (1) the identification of areas of high EMF
levels near residences, together with measures to mitigate the exposure of
those residences; (2) the filing of detailed construction plans, with
associated environmental mitigation measures as identified in the Board's
order; (3) the filing of all required zoning, construction, and other
permits with the Board; and (4) a showing that consideration has been given
to all measures identified in the Board's order for the mitigation of
adverse aesthetic impacts. Meach Cove and New Haven filed separate motions
to alter or amend the order, and VELCO filed a request for clarification.
The Board ordered several relatively minor language changes and
clarifications to the decision, but otherwise denied the motions. Separate
appeals by New Haven, Shelburne, and Meach Cove followed. We address each
in turn.
I.
¶ 6. We note at the outset the limited nature of our review. "In
a § 248 proceeding, the Board 'is engaged in a legislative, policy-making
process.' " In re Twenty-Four Vt. Utils., 159 Vt. 339, 357, 618 A.2d 1295,
1306 (1992) (quoting Auclair v. Vt. Elec. Power Co., 133 Vt. 22, 26, 329 A.2d 641, 644 (1974)). The Board must employ "its discretion to weigh
alternatives presented to it, utilizing its particular expertise and
informed judgment." Id. We "give great deference" to that expertise and
judgment and accord a "strong presumption" of validity to the Board's
orders. In re E. Georgia Cogeneration Ltd. P'ship, 158 Vt. 525, 531, 614 A.2d 799, 803 (1992). Findings of fact adopted by the Board to support its
decision must be accepted by the Court unless they are shown to be clearly
erroneous. Id. "The burden of demonstrating clear error is the
appellant's, and that burden is not a light one." In re Adelphia Bus.
Solutions of Vt., Inc., 2004 VT 82, ¶ 7, 177 Vt. 136, 861 A.2d 1078.
¶ 7. With these standards in mind, we turn first to New Haven's
claims on appeal. New Haven contends principally that the Board erred in
approving VELCO's proposal to construct a new 345-kv line from West Rutland
to New Haven parallel to an existing 115-kv line, instead of approving a
second 115-kv line along the same route. The record discloses that the
Board considered a number of "transmission-only alternatives" to the VELCO
proposal, including the second 115-kv line, and engaged in a comparative
analysis of this and other transmission options. The Board concluded that
the 115-kv alternative was inferior to the VELCO proposal for several
reasons. First, it noted that the 115-kv alternative provided less
capacity than the 345-kv line to protect against a potential voltage
collapse resulting from contingencies elsewhere in the transmission system.
Second, the 115-kv alternative would produce significantly higher
"impedance," or conductive losses and inefficiency, than the 345-kv line.
Third, the 115-kv line would require adding a second, sixteen-mile, 115-kv
line from Granite to Middlesex to increase the reliability of the
alternative to the same reliability as the 345-kv proposal, with associated
potential environmental impacts to this additional transmission corridor.
Finally, the Board found that the 115-kv line would not be compatible with
VELCO's long-term expansion plans for extending 345-kv lines from New Haven
to Williston and to a future substation in Essex.
¶ 8. The Board recognized that the transmission poles required
for a 345-kv line would be higher, and the right-of-way wider, than those
required for a 115-kv line, and found that these requirements would create
adverse aesthetic effects at several locations along the route. The Board
further found, however, that any undue impacts could be avoided through a
variety of site-specific mitigation measures, including pole placement,
planting of hedgerows and trees, and relocation of the line in certain
areas, and ordered VELCO to incorporate these mitigation measures into the
project.
¶ 9. Despite these findings, New Haven contends the Board erred
in failing to conduct a more detailed comparison between the environmental
and aesthetic impacts of the 345-kv proposal and the 115-kv alternative.
This argument is unpersuasive. Under the two-part "Quechee test" utilized
by the Board and approved by this Court for reviewing issues of aesthetics
under § 248(b), a determination must first be made as to whether a project
will have an adverse impact on the aesthetics and the scenic and natural
beauty of an area. In re Halnon, 174 Vt. 514, 515, 811 A.2d 161, 163
(2002) (mem.). If the answer is in the affirmative, the inquiry advances
to the second prong-whether the impact would be "undue." Id. This is
determined by assessing whether it violates a clear community standard, it
offends the sensibilities of the average person, or the applicant has
failed to take generally available mitigating steps that a reasonable
person would take to improve the harmony of the proposed project with its
surroundings. Id.
¶ 10. New Haven argues that the Board deviated from this
standard, citing our decision in Halnon, where we upheld a decision by the
Board to deny a CPG for a proposed wind turbine based, in part, on the
applicant's failure to take adequate steps to mitigate the adverse impact
on a neighbor's view or analyze alternative sites that would have provided
more effective screening. Id. at 517, 811 A.2d at 165. The record here
is markedly different. VELCO proposed a number of measures to mitigate the
adverse aesthetic effects of the 345-kv line, and the Board found that
these and other supplemental mitigation measures would negate any undue
impacts from the line. Furthermore, unlike in Halnon, where the applicant
provided no evidence to support his claim that alternative locations would
cause ancillary problems undermining the project, id., VELCO here adduced
substantial evidence that the 115-kv line would not adequately accomplish
the project's goal of providing long-term and reliable energy sufficiency,
and the Board so found. Accordingly, we find no legal or factual basis to
conclude that the Board abused its discretion by failing to conduct an
adequate comparative analysis of the 115-kv alternative.(FN4)
¶ 11. New Haven also specifically challenges the Board's reliance
on evidence that the 115-kv alternative would not be compatible with
VELCO's long-term plans for extending the proposed 345-kv line from New
Haven to Williston and to a future substation in Essex, asserting that it
was error to rely on potential energy needs twenty years in the future.
Forecasting future energy needs and the optimal means of addressing those
needs, however, falls squarely within the Board's informed judgment and
expertise, and we discern no basis to conclude that the Board's finding in
this regard was unreasonable or clearly erroneous. In re E. Georgia, 158
Vt. at 531-32, 614 A.2d at 803.
¶ 12. New Haven also claims that the Board abused its discretion
in applying a least-cost analysis to the project as a whole, rather than to
each separate project component, including the proposed 345-kv line and
115-kv alternative. See 30 V.S.A. § 248(b)(2) (stating that issuance of
CPG requires finding that proposed purchase, investment or construction is
required to meet present and future demand for service "which could not
otherwise be provided in a more cost effective manner through energy
conservation programs and measures and energy-efficiency and load
management measures"); id. § 248(b)(4) (stating that CPG requires finding
that proposal will result in economic benefit to the state and its people).
The Board rejected this argument, noting that, in dealing with similar
projects, it had consistently addressed the economic and least-cost
criteria for the projects as a whole rather than for their separate line
and substation components. The Board found this to be a reasonable
approach where, as here, the applicant contends, and the evidence shows,
that a project should be treated as a coordinated whole due to the
interconnected nature of the system.(FN5) With respect to the 345-kv line,
the Board specifically found that it was an integral component of the
Northwest Reliability Project, and therefore did not require a separate
cost-effective analysis.
¶ 13. Contrary to New Haven's claim, we discern nothing in the
language of § 248 that is inconsistent with the Board's approach, or that
specifically requires a component-by-component least-cost analysis of an
integrated system-wide transmission upgrade. New Haven cites to a
provision of the statute defining a natural gas facility as including "any
natural gas transmission line," 30 V.S.A. § 248(a)(3)(A), but this section
does not signal a clear legislative intent to subject virtually every
proposed gas or electric transmission line or other project component to a
separate least-cost analysis when it is part of an otherwise integrated
project. As the Board's approach under § 248 was neither unreasonable nor
contrary to the plain terms of the statute, and was well within the scope
of its expertise, it must be upheld. See In re Verizon New Eng. Inc., 173
Vt. 327, 334-35, 795 A.2d 1196, 1202 (2002) (recognizing that absent
compelling indication of error, we will not disturb Board's interpretation
of statutes within its particular area of expertise); In re Twenty-Four Vt.
Utils., 159 Vt. at 359, 618 A.2d at 1307 (rejecting claim that Board
violated § 248(b) by conducting "statewide evaluation" of hydroelectric
energy purchase contract rather than "utility-by-utility assessment," and
holding that Board's approach under the statute was "reasonable"). New
Haven also challenges the Board's predicate finding that the proposed
thirty-five-mile, 345-kv line running through the Champlain Valley from
West Rutland to New Haven constitutes an integral and essential part of a
coordinated project to provide reliable energy to meet Vermont's current
and future energy load levels. Again, however, the Board's finding was
supported by the record evidence, and was within its area of expertise, and
therefore must be upheld.(FN6) In re E. Georgia, 158 Vt. at 531, 614 A.2d
at 803.
¶ 14. New Haven further contends the Board failed to consider
relevant evidence, and misstated the evidence, concerning the health risks
posed by increased EMF levels associated with the project. The Board's
decision contains some forty findings reviewing the extensive testimony and
scientific literature adduced by the parties on the subject of EMF's effect
on the public health. This includes a 1999 report by the National
Institute of Environmental Health Sciences, and a follow-up report in 2002,
finding that "[t]he scientific evidence suggesting that ELF-EMF [extremely
low frequency EMF] exposures pose any health risk is weak" and concluding
that EMF exposure is not likely to pose any health hazard. The Board found
that there was no evidence of any substantial linkage between EMF exposure
and childhood leukemia or other cancer risks, nor any recorded case of
medical-device disruption caused by power-line EMF. In the absence of
evidence of any undue effect on the public health, the Board concluded that
significant mitigation measures, such as undergrounding the line, were not
required. Nevertheless, consistent with the policy of "prudent avoidance"
followed by the Department of Health and other states, the Board ordered
VELCO to continue to identify areas of relatively high EMF levels, propose
options to mitigate exposure in those areas, and monitor the scientific
literature and regularly report to the Board on these efforts.
¶ 15. Of the Board's extensive findings in this area, New Haven
has challenged only those concerning EMF's effect on medical devices,
asserting that the Board ignored or misunderstood evidence that
manufacturers routinely warn users of pacemakers, implantable cardioverter
defibrillators, and insulin pumps that high-voltage lines may interfere
with their devices, and consequently caution them to avoid such lines. The
evidence showed, however, that the manufacturers' warnings were not based
on studies demonstrating health risks to medical-device users from EMF
generated by power lines, or documenting any single instance of such
interference.(FN7) Thus, the evidence supported the Board's finding that
EMF from power lines did not pose a tangible risk to medical-device users
or require significant mitigation measures. We find no merit to the claim
that the Board ignored or misstated the evidence in this area, and no basis
to disturb its findings.(FN8) Id.
¶ 16. New Haven next claims that the Board failed to consider
expert testimony recommending burial of the proposed new 115-kv line
running from a substantially expanded New Haven substation to the point
where it crosses Route 17 in the Town of New Haven. The record does not
support the claim. Although it did not specifically mention the Route 17
crossing, the Board considered the proposal to underground all or part of
the new line and found that aesthetic considerations did not justify the
cost of the underground option except in two specific locations in the Town
of Shelburne. The Board did, however, reject VELCO's proposed mitigation
measures as inadequate to negate the adverse aesthetic effects from the
expanded substation and Route 17 crossing. Instead, it ordered VELCO to
consider an option discussed by New Haven's expert landscape architect and
planner, Jean Vissering, to relocate the expanded substation (at
considerable additional cost) to allow for better screening. Vissering
noted, and the Board found, that relocating the substation would facilitate
relocating the Route 17 crossing to a lower elevation, which would
mitigate its adverse visual impact. Although Vissering opined that
undergrounding the line at the Route 17 crossing represented the optimal
approach, and the Board chair wrote separately to endorse that view, the
expert acknowledged that-if the Board determined the costs of
undergrounding to be unreasonable-the relocation option would remove the
major adverse aesthetic impacts of the original proposal. The Board's
decision thus reveals a careful balancing of cost, aesthetic, and technical
considerations well within its area of expertise, and well supported by the
evidence. Accordingly, it may not disturbed. Id.
¶ 17. New Haven additionally contends the Board violated § 248 by
approving specific locations for the proposed transmission lines. Nothing
in the statute, however, prevents the Board from certifying that the
proposal to construct additional transmission lines, substations, and other
upgrades in specific locations serves the public good. The decisions on
which New Haven relies, Vt. Elec. Power Co. v. Bandel, 135 Vt. 141, 145,
375 A.2d 975, 978 (1977), Auclair v. Vt. Elec. Power Co., 133 Vt. 22, 28,
329 A.2d 641, 645 (1974), and In re Vt. Elec. Power Co., 131 Vt. 427,
434-435, 306 A.2d 687, 691-92 (1973), held merely that the Board may
certify a general rather than a specific transmission corridor and retain
jurisdiction to review more detailed plans through a post-certification
procedure. They do not hold that this approach is required. Accordingly,
the claim lacks merit.
¶ 18. In a related argument, New Haven asserts that, by approving
certain specific routes, the Board improperly precluded individual
landowners from challenging the necessity of constructing the lines in
later condemnation proceedings under 30 V.S.A. §§ 110-112. As we have
explained, however, a § 248 certification proceeding "is a planning and
policy determining [process] which forecloses no individual rights" and
involves "no predetermination of the issue of necessity of condemnation for
any particular route." Auclair, 133 Vt. at 26-27, 329 A.2d at 644-45.
Accordingly, the claim lacks merit. Lastly, New Haven asserts that the
Board's certification order violates the principle that findings should
contain clear statements of fact and identify their basis in the record,
rather than merely recite testimony or refer to unspecified portions of the
record. As our previous discussion suggests, however, the Board's numerous
and detailed factual findings were extensively supported by specific
citations to the record evidence. Thus, we find no error.
II.
¶ 19. We turn next to Shelburne's claims. Shelburne raises four
issues on appeal. First, in an inversion of New Haven's earlier argument,
Shelburne asserts that the Board's findings improperly fail to identify a
specific route for a portion of the new transmission line through the Town.
VELCO's original proposal was to replace approximately 5.6 miles of
existing 34.5-kv transmission line within the Town with a new 115-kv
transmission line to be constructed in the existing corridor, and to
upgrade the existing substation. The southerly 2.4-mile segment of the
line runs from the Charlotte border to the substation, passing a
residential neighborhood known as Davis Park. The northern segment runs
from the substation approximately 3.2 miles north. In response to concerns
about the impact of larger transmission structures on the Davis Park
neighborhood, VELCO filed an alternative proposal to shift a portion of the
southerly route to the west, away from the neighborhood and onto the lands
of the Meach Cove Trust. This reroute proposal raised additional
environmental and aesthetic concerns, which resulted in at least one
additional reroute proposal, a variation on the second, that also affected
the Meach Cove Trust property.
¶ 20. Shelburne asserts that the Board's findings concerning this
portion of the southern segment are inadequate because, while it is clear
that the Board implicitly rejected the original route, it is allegedly
"difficult to determine" which of the alternative routes the Board
approved. We find no error. As Shelburne acknowledges, references in the
Board's findings to expert testimony concerning the potential aesthetic
impacts of the line and the mitigation measures necessary to address those
impacts leave no doubt that the Board chose the alternatives offered by
VELCO over the original proposal. The Board's findings also suggest that
the final location for this portion of the line was to be reserved for the
post-certification process, as indicated in the following finding:
This section of the 115 kv line is sufficiently sensitive
that it must be planned on paper at a design detail level,
and then confirmed in the field by a method of testing actual
proposed pole locations to ensure that existing screening is
used to the greatest effect possible. . . .
VELCO must include the Town and affected landowners in this
process, including the Meach Cove Real Estate Trust.
Pursuant to the post-certification process outlined in the Board's
decision, the Board will review final design and construction plans
submitted by VELCO showing specific locations for each transmission
structure and outlining associated environmental mitigation measures. The
Board will also conduct site visits as necessary, and afford Shelburne and
other parties the opportunity to comment on the final plans, request a
hearing, and submit additional evidence.
¶ 21. As previously discussed, we have long upheld the Board's
authority to approve a general route for a proposed transmission line in a
§ 248 proceeding, reserving the resolution of difficult aesthetic and
environmental considerations underlying the more specific decision to a
post-certification procedure. In re Vt. Elec. Power Co., 131 Vt. at
434-35, 306 A.2d at 691-92. We find nothing in the Board's decision here
that is inconsistent with this approach or objectionable under the statute.
Hence, there was no error warranting a reversal and remand.
¶ 22. Shelburne next contends the Board's findings fail to
adequately address the aesthetic impacts of the proposed 115-kv
transmission line along the one-mile section between Bostwick Road and
Harbor Road, and the half-mile segment from the Bostwick Road Bridge to the
Meach Cove Trust property. The Board addressed the aesthetic effects of
the 115-kv line, both generally and on a section-by-section basis, under
the Quechee test referred to above. The Board noted that for most of its
length the 115-kv line will replace existing lines and will be constructed
in existing transmission corridors, although wider rights-of-way will be
required. The Board also noted the possibility of increased visibility
resulting from the taller pole heights generally required by the new line.
With respect to the Bostwick-Road-to-Harbor-Road section, however, the
Board found that the use of shorter poles will mitigate the visual impacts
on the Shelburne Museum and Shelburne Farms. As noted, the Board also
observed that the final decision concerning proper pole placement and
screening for this "sensitive" segment of the line would require more
detailed planning and field testing. With respect to the half-mile segment
from Bostwick Road Bridge to the Meach Cove Trust property, the Board found
that the adverse aesthetic impacts resulting from the new line would be
mitigated by a variety of measures, including the use of shorter poles,
careful pole placement, retention of buffering trees, and the placement of
additional vegetative screening.
¶ 23. Despite these findings, Shelburne contends that the Board's
analysis was deficient under the Quechee test. We see no such shortcoming.
As noted, the Quechee analysis requires the Board to determine whether a
project will have an adverse aesthetic impact, and, if so, whether that
impact is undue, i.e., whether it violates a clear community standard, it
offends the sensibilities of the average person, or the applicant has
failed to take reasonably available mitigating measures to improve the
harmony of the project with its surroundings. In re Halnon, 174 Vt. at
515, 811 A.2d at 163. Shelburne argues that the Board failed to
specifically address local community standards dedicated to the protection
of viewsheds in these areas, but the Board's findings demonstrate that it
considered the project's impact on views to be a critical concern, and
further demonstrate that it was satisfied that the prescribed mitigation
measures would effectively ameliorate these impacts. Shelburne also faults
the Board for failing to address the line's effect on views from points
other than the Shelburne Museum and Shelburne Farms, but the record shows
that Shelburne's own experts focused principally on these vantage points.
Accordingly, we find no error.
¶ 24. Finally, Shelburne contends the Board mischaracterized the
testimony of an expert landscape architect, David Raphael, in concluding
that the adverse impacts along the segment of the line from Bostwick Road
Bridge to the Meach Cove Trust property could be effectively mitigated.
The expert's testimony fully supports the Board's finding.(FN9) Shelburne
notes that the expert later qualified his testimony by acknowledging that
"sufficient mitigation can be provided if all of those elements [pole
placement, tree retention, additional screening] are explored to their
fullest extent," and that this would remain uncertain until more detailed
plans were in place. This does not, however, undermine the Board's
finding, but rather is consistent with its conclusion that final approval
must await a post-certification review of detailed site-specific plans for
the location of transmission structures and associated mitigation measures.
¶ 25. Shelburne next asserts that the Board misinterpreted its
statutory obligation to find that any new construction of an in-state
facility "will not unduly interfere with the orderly development of the
region with due consideration having been given to the recommendations of
the municipal and regional planning commissions, the recommendations of the
municipal legislative bodies, and the land conservation measures contained
in the plan of any affected municipality." 30 V.S.A. § 248(b)(1). As the
Board observed, this Court has construed the phrase "due consideration" in
§ 248(b)(1) to "at least impliedly postulate[] that municipal enactments,
in the specific area, are advisory rather than controlling," City of S.
Burlington v. Vt. Elec. Power Co., 133 Vt. 438, 447, 344 A.2d 19, 25
(1975), and Shelburne takes no issue with this interpretation. Shelburne
challenges the Board's corollary conclusion, however, that "land
conservation measures" must be interpreted to mean measures specifically
"directed toward land conservation, and not general policy statements that
apply indiscriminately throughout the municipality." The Board relied, in
this regard, on our decisions holding that the Act 250 requirement of
"conformance with any duly adopted local or regional plan," 10 V.S.A. §
6086(a)(10), requires a "specific" municipal policy rather than "broad
goals lacking in specific policies or standards." In re John A. Russell
Corp., 2003 VT 93, ¶¶ 16, 19, 176 Vt. 520, 838 A.2d 906 (mem.); accord In
re Kisiel, 172 Vt. 124, 130, 772 A.2d 135, 140 (2000); In re Molgano, 163
Vt. 25, 31, 653 A.2d 772, 775 (1994).
¶ 26. Shelburne argues that while the requirement of
"conformity" under Act 250 may warrant specificity in local plans, the fact
that land conservation measures in a § 248 proceeding are only advisory
suggests that the Board should consider a municipal plan's broad "vision"
for development rather than apply the more exacting standard under Act 250.
VELCO and the Public Service Department argue, in response, that this Court
generally defers to the Board's interpretation of an enabling statute
within its particular expertise, and that Shelburne has identified no
"compelling indication of error" in the Board's approach. In re Vt. Yankee
Nuclear Power Station, 2003 VT 53, ¶ 5, 175 Vt. 368, 829 A.2d 1284.
Although the issue is well framed and significant, we find that there is no
need to address it here. While Shelburne takes issue with the Board's
narrow definition of "land conservation measures," it does not argue that
it was prejudiced by the Board's interpretation, or explain how, if at all,
a broader approach would have changed the result. See Mellin v. Flood
Brook Union Sch. Dist., 173 Vt. 202, 216, 790 A.2d 408, 421 (2001) (holding
that we need not overturn trial court ruling where it did not harm the
plaintiff and its resolution would not alter the outcome).
¶ 27. We note, furthermore, that despite its ruling the Board did
effectively address the Shelburne town plan and found no evidence that the
replacement line in Shelburne-to be constructed almost entirely within the
existing utility corridor-would cause or prevent additional development not
in conformity with the Town's bylaws, and Shelburne has not challenged this
finding. The Board also expressly found that nearly all of the general
goals and objectives in Shelburne's town plan dealing with land
conservation, aesthetics, and visually significant areas had been addressed
by the Board in its analyses of the various other criteria of § 248. Thus,
we find no basis to disturb the Board's ruling.
¶ 28. Finally, Shelburne contends the Board abused its discretion
in authorizing VELCO to seek reconsideration of its decision requiring the
utility to underground a segment of the line along the Bay Road. The Board
found that the area, located near Lake Champlain, was aesthetically
sensitive, and that, although the line would be located in an existing
transmission corridor, the taller poles would be difficult to screen and
would be out of character with the lakeshore and its surrounding
residential neighborhoods. Accordingly, it concluded that placing the line
underground for approximately 1.3 miles of this segment was reasonable and
necessary. The Board also recognized, however, that the undergrounding
option entailed significant additional costs, and observed "that there may
be as-yet unknown issues, such as archaeological resources, that would
create some problems in placing the line underground in this area."
Therefore, it determined that VELCO could request the Board to reconsider
its decision and allowed VELCO the opportunity to "develop a significantly
more creative alternative design for an overhead line than has been
previously submitted that addresses our concerns."
¶ 29. Shelburne claims that the Board's decision subverts the
normal Rules of Civil Procedure and principles of finality and collateral
estoppel by providing VELCO with an open-ended authorization to seek
reconsideration of the Board's ruling. We read the Board's decision more
narrowly, however, as simply authorizing VELCO to revisit the ruling if,
during the post-certification process of preparing and implementing
feasibility studies and final design plans for location of the transmission
structures, previously-unexplored problems or solutions present themselves
at this particular location. As noted, we have authorized such a two-step
approach for the certification process, In re Vt. Elec. Power Co., 131 Vt.
at 434-35, 306 A.2d at 691-92, and we find no infirmity in its application
here.
III.
¶ 30. Meach Cove raises four arguments on appeal. The first
three all restate claims, previously discussed, that the Board exceeded
its authority under § 248 in approving a specific route for the proposed
transmission line, and that as a result the Board improperly prejudged
issues more properly left to a post-certification condemnation proceeding
under 30 V.S.A. §§ 110 and 112. As explained above, the arguments lack
merit. Supra, ¶¶ 17-18.
¶ 31. Meach Cove's final contention is that the Board erred in
approving VELCO's alternative proposal to route a portion of the southerly
segment of the line in Shelburne over Meach Cove lands rather than
approving the original route through Davis Park. Meach Cove claims that,
having determined that the alternative proposals would have certain adverse
aesthetic impacts, the Board was obligated to consider the original route
and explain why it was unacceptable, and it failed to do so. This claim is
not supported by the record, which reveals that the parties adduced
substantial evidence of adverse aesthetic impacts resulting from the
original proposal.(FN10) The Board also concluded that the adverse effects
from the Meach Cove rerouting proposal could be mitigated, although, as
noted, it also reserved for the post-certification process final approval
of detailed construction, placement, and mitigation plans. Thus, we find
no error.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. For ease of reference, we refer to these three parties collectively
as "New Haven" throughout this decision.
FN2. Meach Cove, representing landowners affected when VELCO submitted a
modification to the petition to reroute a portion of the line through
Shelburne, was granted permissive intervention after the initial series of
public and technical hearings. The Board held supplementary public and
evidentiary hearings in response to the rerouting proposal in which Meach
Cove was a participant.
FN3. The Board noted its concern, however, that deficiencies in VELCO's
planning process and lack of long-term focused attention on efficiency
efforts had narrowed the Board's options in considering alternatives to the
project proposal. The Board announced, in response, that it planned to
open a separate investigation into VELCO's forecasting abilities and to
explore ways to ensure that cost-effective, nontransmission alternatives
are adequately considered and implemented in the future.
FN4. Although its argument is not separately captioned, New Haven appears
to argue that therewas no evidence to support the Board's finding that the
addition of a second 115-kv line from Williamstown to Middlesex would have
negative environmental effects, but Thomas Dunn, a VELCO project manager,
testified specifically that this option "has additional environmental
impacts because the right-of-way in the [Williamstown] to Middlesex
corridor would likely need to be widened, and/or some present 34.5 kv lines
would have to be moved or replaced."
FN5. VELCO's experts described the Northwest Reliability Project as "a
coordinated series of improvements to the VELCO transmission system
designed to provide reliable transmission service to the [S]tate of
Vermont," and as a combination of upgrades designed to "work together to
supply" Vermont's projected peak energy needs.
FN6. VELCO experts testified, for example, that all of the proposed
upgrades, including the 345-kv line, were designed to "work together as one
project to meet" Vermont's energy needs, and singled out the 345-kv line as
"the single most important element in strengthening the system feeding
northwest Vermont."
FN7. Dr. Peter Valberg, an expert in this area, stated in this regard that
[d]espite the ubiquitous nature of public exposure to EMF
from high-voltage transmission lines, no recorded cases of
medical-device disruption by power-line EMF were identified
either in the manufacturers' websites or in our analysis of
available data. There are no FDA-issued safety alerts,
public health advisories, [or] notices addressing potential
medical device interference from power frequency EMF.
FN8. New Haven notes one inaccurate finding in the Board's decision
concerning non-health-based standards for EMF exposure. The Board
corrected the finding in response to New Haven's motion to alter. The
corrected finding provides no basis to disturb the decision.
FN9. In his prefiled testimony, Mr. Raphael analyzed the proposed
mitigation measures for this segment as follows:
While the upgrade as proposed will result in an adverse
impact, mitigation measures such as careful pole placement,
lower pole heights, retention of as much vegetation at the
edge of [the] corridor as possible, presence of background
vegetation and other landscape elements in the corridor, as
well as proposed plantings, provide sufficient mitigation to
avoid an undue adverse impact in this section.
FN10. Landscape architect David Raphael testified, for example, that the
original corridor "is located in a densely developed area with many
residences, a school, a park, open space and other land uses," and that
serious adverse impacts would accrue from higher poles and wider rights of
way that would be offensive to a reasonable person.
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