In re Halnon

In re Halnon (2001-199); 174 Vt. 514; 811 A.2d 161

[Filed 20-Aug-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-199

                              MARCH TERM, 2002


  In re Petition of Tom Halnon	       }	APPEALED FROM:
                                       }
                                       }
                                       }	Public Service Board
                                       }	
                                       }
                                       }	DOCKET NO. CPG NM #25

                                                Trial Judge:  

             In the above-entitled cause, the Clerk will enter:

       Petitioner Tom Halnon appeals the Vermont Public Service Board's
  denial of his application requesting a certificate of public good (CPG) for
  a wind turbine net metering system pursuant to 30 V.S.A. § 219a.  Halnon
  claims the Board abused its discretion by relying exclusively on
  observations made during its site visit, instead of evidence contained in
  the record, and that the Board's decision was contrary to the legislative
  intent and purpose underlying 30 V.S.A. § 219a.  We find no abuse of
  discretion and therefore affirm the Board's order. 

       Halnon and his wife own sixty-two acres of land on North Branch Road
  in East Middlebury upon which Halnon seeks to erect and use a wind turbine. 
  As a facility for electricity generation that employs a renewable energy
  source, a wind turbine constitutes a "net metering system," 30 V.S.A. §
  219a(3)(E), requiring a CPG issued by the Board.  See 30 V.S.A. §
  248(a)(2).  In accordance with CPG application requirements, Halnon sent
  notice to neighboring landowners, and other interested parties, informing
  them of his application.  Various objections were made to Halnon's CPG
  application, the bulk of which focused on the project's perceived  negative
  aesthetic impact.
   
       Mr. and Mrs. Rimonneau are neighboring landowners and part-time
  residents of a parcel of land across North Branch Road from the Halnon
  property who are among those opposed to Halnon's application for aesthetic
  reasons.  Their residence is located at a slightly higher elevation from
  the proposed project site and looks down into the portion of the four acre
  meadow where Halnon proposes to site the wind turbine.  The proposed
  turbine has three 23-foot diameter blades installed on a 100-foot tall
  tubular tower approximately one foot in diameter; it will be directly in
  view of the Green Mountains from the Rimonneau's residence.  Approximately
  450 feet separates the Rimonneau residence and the proposed turbine site. 
  The area is predominantly wooded, comprised 

 

  of mature poplar trees 30-75 feet in height.  There are a small number of
  one- and two- story homes and hunting camps hidden in the woods but no
  other man-made structures in the area. 

       Hearings were held on Halnon's CPG application during which the
  Rimonneaus, among other parties, were granted intervention pursuant to
  Board Rule 2.209.  Halnon did not raise an objection to the intervention of
  any of these parties.  The bulk of the hearings focused on the issue of
  aesthetics, and proper application of the "Quechee test" utilized by the
  Board when reviewing issues of aesthetics under 30 V.S.A. § 248.  The
  hearing officer held two site visits and several technical hearings and
  evaluated the proposed project under certain criteria detailed in 30 V.S.A.
  § 248.  Applying the Quechee test the hearing officer's proposal for
  decision (PFD) determined that Halnon's CPG request should be denied
  "because the net metering system as proposed, would have an undue adverse
  effect on the aesthetics and scenic and natural beauty of the area in which
  it is proposed" in violation of 30 V.S.A. § 248(b)(5).  The hearing officer
  found that there were alternative suitable sites for the proposed project
  and that Halnon had not availed himself of obvious and potentially
  effective mitigation steps which would lessen the aesthetic impacts of the
  project.  Further, the hearing officer found the project would be offensive
  and shocking to the Rimonneaus and the average person in a similar
  situation.  The PFD also invited the Board to reconsider this
  recommendation if Halnon could provide evidence that he has taken
  significant steps to minimize the negative effects that the project has on
  the Rimonneau's direct view. 

       Fundamentally at issue in this case was whether Halnon's proposed
  project survived scrutiny under the Quechee test.  The parties in this
  matter offer differing interpretations regarding proper application of the
  Quechee test, alternately referring to both a two-part, and a three-part
  Quechee analysis.  For purposes of clarification we re-state the proper
  Quechee test for determining whether a project will have an undue adverse
  effect on the aesthetics or scenic and natural beauty of an area. 

       The two-part Quechee test was first outlined by the Environmental
  Board in a previous case and has since been followed by this Court.  See In
  re McShinsky, 153 Vt. 586, 591, 572 A.2d 916, 919 (1990).  Under this test
  a determination must first be made as to whether a project will have an
  adverse impact on aesthetics and the scenic and natural beauty of an area
  because it would not be in harmony with its surroundings.  Id. at 591, 572 A.2d  at 919.  If the answer is in the affirmative the inquiry then advances
  to the second prong to determine if the adverse impact would be "undue." 
  Id.  Under the second prong an adverse impact is undue if any one of three
  questions is answered in the affirmative: 1) Does the project violate a
  clear, written community standard intended to preserve the aesthetics or
  scenic, natural beauty of the area? 2) Does the project offend the
  sensibilities of the average person? 3) Have the applicants 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. at
  592, 572 A.2d  at 920.  An affirmative answer to any one of the three
  inquiries under the second prong of the Quechee test means the project
  would have an undue adverse impact.  Id. at 593, 572 A.2d  at 920 .

 
        
       The Board received comments on the hearing officer's PFD from all
  parties and intervenors, including the Rimonneaus, Halnon and the
  Department of Public Service.  A duly noticed site visit, followed by oral
  argument, was held before the Board.  Applying the second prong of the
  Quechee test analysis, the Board concluded Halnon has failed to present
  "any compelling reason why [he] could not use an alternative site," "has
  failed to take generally available mitigating steps which a reasonable
  person would take to improve the harmony of the proposed turbine with its
  surroundings," and further, that he had the "burden of proof in this case
  and has failed to demonstrate this mitigation would be unreasonable." 
  Based on this conclusion and the conclusion that the turbine would offend
  the sensibilities of the average person faced with a situation similar to
  the Rimonneau's, the Board accepted the hearing officer's conclusion that
  the project failed the two-part Quechee test and would, therefore, have an
  undue adverse effect upon the aesthetic and scenic and natural beauty of
  the area.

       Appellant argues on appeal that in reaching its decision the Board
  erred by improperly relying on information obtained through its site visit. 
  Specifically, appellant cites portions of the Board's decision which
  reference the site visit, unsupported by any citation to the record:


         The Applicant has not fully addressed the feasibility of
    other possible alternative locations which we observed at the site
    visit. 

         From our site visit, it is apparent that there are some
    locations that could achieve approximately the same turbine height
    above surrounding terrain and vegetation with the same tower
    height as the proposed site.

         Based upon our site visit to the area, we concur with the
    Hearing Officer's conclusion that the project in its presently
    proposed location will offend the sensibilities of the average
    person faced with a similar situation.

  Appellant argues that these references demonstrate improper reliance on
  site visits as the exclusive basis for the board's findings, in
  contravention of our case law mandating otherwise.  See In re Quechee Lakes
  Corp., 154 Vt. 543, 551, 580 A.2d 957, 962 (1990).  Specifically, appellant
  claims that the board's reliance on its own site visit observation
  improperly formed the basis for its finding that the project failed to pass
  muster under the second prong of the Quechee test regarding mitigation and
  whether the project offends the sensibilities of the average person in the
  Rimonneaus' position. 
        
       Whether administrative fact-finders may base their findings on site
  visit observations was first addressed by this Court in Quechee Lakes.  In
  that case, we recognized that administrative tribunals can base their
  decisions on a broader range of evidence than courts and so extended our
  previous holding that "judicial findings can be grounded on knowledge
  acquired from site visits, as long as such examinations are not the
  exclusive basis for the findings," to administrative tribunals.  Id. at
  551, 580 A.2d  at 962.  We concluded in Quechee Lakes that the Environmental
  Board's partial reliance on knowledge garnered from site visits was not
  erroneous. Id. at 552, 580 A.2d  at 962.  To 

 

  the extent the fact-finder does intend to rely on site visit observations,
  we further held that those observations must be placed on the record in
  order to preserve the right of rebuttal and to facilitate review.  Id.; 3
  V.S.A. § 809(e)(2) (Vermont's Administrative Procedure Act provides that
  "[t]he record in a contested case shall include . . . all evidence received
  or considered").  We have previously recognized that where a party feels it
  has any "meaningful rebuttal" to site visit observations not in the record,
  on which the fact finder intends to rely, the party must raise that
  argument before the board in a post-decision motion or it is deemed waived. 
  Quechee Lakes, 154 Vt. at 552, 680 A.2d  at 962 (internal citations
  omitted).  Appellant failed to raise this issue in a post-decision motion. 
  Even if appellant's claim was properly before the Court, it would not
  warrant our reversal of the Board's decision in this case. 

       We disagree with appellant that the Board relied exclusively on its
  own site visit as the basis for its conclusions.  Rather, it is reasonable
  to conclude that the Board used its site visit observations merely to
  verify and affirm the hearing officer's conclusions.  There is no evidence
  that the Board relied on its own site visit observations over and above, or
  to the exclusion of, other evidence before it.  The Board's site visit
  observations constitute only a part of its total findings regarding the
  proposed project.  There were more than 60 other findings made in support
  of the Board's final conclusion.  Besides the site visit, the Board also
  heard testimony regarding the nature and scale of the turbine and the
  surrounding area and the project.  This Court applies a deferential
  standard of review where the sufficiency of the evidence is challenged on
  review.  Quechee Lakes, 154 Vt. at 554, 580 A.2d  at 963.  Evidence is
  substantial if it is relevant and a reasonable person might accept it as
  adequate to support a conclusion.  Id.  There exists ample evidence in the
  record, in addition to the Board's findings gleaned from its site visit, to
  support the Board's ultimate conclusion.  	

       Halnon further argues that the Board's denial of his application is
  contrary to the intent of 30 V.S.A. § 219a.  Specifically, he cites
  legislative findings to demonstrate that with net metering, the Legislature
  intended to encourage investment in renewable energy resources, enhance
  diversification of Vermont's energy resources, and stimulate economic
  growth.  1997, No. 136 (Adj. Sess.), § 1.  Appellant also finds further
  support for the above legislative intent in the net metering statute's
  mandate to the board to "simplify the application and review process as
  appropriate."  30 V.S.A. § 219a(c)(3).  Halnon claims that putting the
  burden of proof upon him to show that mitigation would be unreasonable, and
  denying his application for failure to meet that burden, constitutes an
  abuse of discretion in the context of a net metering application, and
  contravenes the intent of § 219a.  
   
       Again we find appellant's argument unpersuasive.  The Board denied
  Halnon's application after carefully balancing all appropriate policy
  considerations and then succinctly detailing its reasons for denying the
  application.  The Board's decision-making process was neither careless, nor
  formed with any obvious disregard for the legislative intent and purpose of
  net metering.  In denying Halnon's CPG application, the Board is not
  contradicting the legislature's intent to facilitate the use of wind
  turbines as an alternative energy source.  Abuse of discretion occurs when
  that discretion is exercised on grounds or for reasons clearly untenable,
  or to an extent clearly unreasonable.  In re Lunde Construction Co., 139
  Vt. 376, 379, 428 A.2d 1140, 1141 (1981).  It was not an abuse of

 

  discretion for the Board to dismiss Halnon's application when Halnon failed
  to provide evidence that he had taken significant steps to minimize the
  negative effects that the project would have on the Rimonneaus' view - even
  after the hearing officer invited him to do so, and also failed to present
  specific evidence supporting his contentions that siting the turbine at
  alternative locations caused problems and increased costs associated with
  the project.  Several alternative sites for the project that would
  effectively shield the project behind large pine trees, and thus,
  effectively screen the project from the Rimonneau's view, and from
  visibility along North Branch Road, were identified by Halnon in
  discussions with the Rimonneau's or identified during site visits and
  subsequent testimony.  Halnon, however, conducted no analysis of
  alternative sites, objecting to them on the basis that he would have to cut
  down trees near his house, that there would be increased costs of
  installation at the alternative sites, and that relocation would still
  leave the project visible to two houses, one a quarter mile away, the other
  two miles away.  That implementing some of these mitigation measures would
  increase projects costs, cause power losses and may affect aesthetics on
  appellant's own property does not render the Board's conclusion that the
  turbine could be sited elsewhere an abuse of discretion.

       Appellant also claims that the Board's abuse of discretion is further
  evidenced when its order in this case is contrasted with its order in In re
  Blittersdorf, CPG NM-11 (May 26, 2000).  In that case the Board approved a
  CPG for a wind turbine in a neighborhood containing single family
  residences and inactive farms where the net metering system was "very
  visible from surrounding property and roads, with clear views of the
  turbine ranging from a few hundred feet in some directions up to one mile
  or more in other directions."  Id. at 4-5.  Appellant claims the Board's
  decision in the instant case is inconsistent with its decision in
  Blittersdorf and thereby thwarts the purpose of vesting statewide authority
  with the Board in order to effectuate uniform and fair statewide
  administration of public utility and electricity matters.  Because of this,
  appellant claims the Board's decision was an abuse of discretion.  We
  disagree.  As the Board observed, the proposed wind turbine in Blittersdorf
  was not out of character with its less rural surroundings which included:
  residences, barns, silos, farm machinery, tall telephone poles and other
  large working structures.  In addition, the neighbor opposing the
  Blittersdorf turbine was situated approximately 1300 feet from the turbine
  and possessed a panoramic view of the Adirondacks which would only be
  marginally affected by the wind turbine.  By contrast, in the instant case,
  the area is predominantly rural and wooded, devoid of other large
  structures in the vicinity of the project and the Rimonneau's home is
  situated only 450 feet from the proposed site.  Their already limited view
  will be more severely affected by the presence of a turbine located
  directly in front of them.  Given that the proposal in Blittersdorf and in
  the instant case were for wind turbines sited in significantly dissimilar
  environments, it was not abuse of discretion for the Board to find Halnon's
  proposed turbine offensive or shocking to the average person. 
    
        There is a strong presumption that orders issued by the Public
  Service Board are valid.  In re E. Georgia Cogeneration Ltd P'ship, 158 Vt.
  525, 531, 614 A.2d 799, 803 (1992).  In reviewing orders of the Board, this
  Court gives great deference to the particular expertise and informed

 

  judgment of the Board.  Id.  Operating under that standard, we are
  unpersuaded that the Board's order in this case warrants reversal. 

       Affirmed.


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Mark J. Keller, District Judge             
                                       Specially Assigned