Justia Vermont Supreme Court Opinion Summaries

Applicant Ecos Energy, LLC appealed the Public Service Board's decision that its proposed solar power project did not qualify for a standard-offer power purchase contract under Vermont's Sustainably Priced Energy Enterprise Development (SPEED) program because it exceeded the statutory limit on generation capacity. In 2009, the Board issued an order in which it prescribed various procedures and requirements for the standard-offer program. The standard-offer program was administered by the SPEED facilitator, VEPP, Inc. One of the participants in the implementation process, Central Vermont Public Service, commented that separate projects would need to enter into separate interconnection agreements with the utility, enter into separate standard contracts, and obtain separate certificates of public good. Another participant, Renewable Energy Vermont, commented that the statute was clear that "separate plants that share common infrastructure and interconnection should be considered as one plant." In April 2013, VEPP issued a request for proposals (RFP) for projects. Applicant proposed three 2.0 MW solar projects (the Bennington Solar project, the Apple Hill Solar project, and the Sudbury Solar project). Applicant's three projects were the lowest-priced projects. In submitting the RFP results to the Board, VEPP noted that the Bennington project and the Apple Hill project would be located on the same parcel of property and the generation components of the project were "physically contiguous." It requested that the Board make a determination as to whether or not the two projects constituted a single plant. The Board accepted the Bennington project and disqualified the Apple Hill project, which had a higher price. The Board authorized VEPP to enter into standard-offer contracts with applicant for the Bennington and Sudbury projects. Applicant subsequently petitioned the Board to reconsider and modify its order. When it refused, applicant appealed the decision. Upon review of the matter, the Supreme Court found that the Board's conclusion that the Bennington and Apple Hill projects constituted a single plant was contrary to the plain language of the applicable statute: the Bennington and Apple Hill projects would qualify as "independent technical facilities." As such the Court reversed the Board's decision and remanded the case for further proceedings.View "In re Programmatic Changes to the Standard-Offer Program and Investigation into the Establishment of Standard-Offer Prices under the Sustainably Priced Energy Enterprise Development" on Justia Law

This case centered on a disputed permit for a wastewater system and potable water supply granted to applicants David and Martha Musto for a home on Lake Bomoseen. Next-door neighbor Carolyn Hignite appealed the environmental court's decision to deny her request to revoke the permit issued to applicants in 2009, and to dismiss her direct appeal of the permit. Applicants cross-appealed the environmental court's holding that neighbor had standing to appeal in either instance. Along with her brothers, Hignite was part owner of a lake property that has been in their family for sixty-two years. Applicants' property is a .38-acre lot on the western shore of the lake, which contained a single-story seasonal camp of about 960 square feet. In 2009, applicants submitted a permit application to the Agency of Natural Resources (ANR) to replace the camp's septic system and on-site water supply. On the permit application, applicants described the project as the "reconstruction of a 3 bedroom year-round single use family residence using a new wastewater disposal system and drilled bedrock water supply well." ANR issued the requested permit to applicants on March 30, 2009. In August 2009, Hignite filed a petition with ANR to revoke the permit, claiming that applicants submitted false or misleading information on the permit application regarding the number of bedrooms in the camp. ANR held a hearing in May 2010, and denied neighbor's petition to revoke the permit. Hignite subsequently appealed the permit to the environmental court in 2010, over a year after the permit was issued to applicants. Hignite also appealed ANR's denial of revocation in 2013. The environmental court reviewed both cases de novo but did not conduct a new hearing, instead basing its review on exhibits and testimony from the ANR hearing, as the parties stipulated. Hignite appealed the court's decision on both dockets. Finding no reversible error, the Supreme Court affirmed the court's holding in both of the neighbor's appeals. View "In re Musto Wastewater System" on Justia Law

Twelve individuals and the Ferrisburgh Friends of Responsible Growth, Inc. appealed the Environmental Division’s affirming the grant of a conditional use zoning permit to Champlain Oil Company. The permit allowed Champlain Oil to construct and operate a gasoline and diesel station with a retail convenience store and a drive-through food facility, including parking lot and overhead canopies for the gas and diesel pumps. Appellants argued that the proposed uses for a convenience, retail and drive-in facility are explicitly prohibited by the Ferrisburgh zoning ordinance and would not be consistent with the town plan. Finding no reversible error, the Supreme Court affirmed the Environmental Division's decision.View "In re Champlain Oil Company Conditional Use Application" on Justia Law

"At its heart, the present controversy is about noise - specifically, airport-generated noise and its effects on immediate neighbors." Airport neighbor, George Maille, appealed the Superior Court, Environmental Division's grant of summary judgment in favor of appellees City of Burlington and City of South Burlington. The court upheld the South Burlington Zoning Administrative Office's issuance of fifty-four zoning permits to the City of Burlington and Burlington International Airport (BTV) and concluded that applicants were not required to submit a site plan for zoning board approval. Each permit allowed the BTV to demolish, remove, and fill in the cellar hole of a vacant structure on BTV-owned property. Maille contended that the environmental court erred in concluding that site plan review of the applications was not required under the South Burlington Land Development Regulations. Although the Supreme Court disagreed with part of the environmental court’s reasoning, it ultimately affirmed its holding that site plan review was not required for the removal of the structures and the placement of fill in the structures' respective cellar holes. View "In re Burlington Airport Permit" on Justia Law

Developer Vermont North Properties (VNP) appealed from the trial court’s decision in favor of the Village of Derby Center. The dispute centered on VNP’s rights, if any, to water and sewer allocations from the systems managed by the Village in connection with a VNP construction project. The trial court determined that: the Village could charge fees for reserved water and sewer allocations; the Village’s fees were reasonable; the Village could revoke VNP’s reserved allocations for nonpayment of fees; and the Village was not estopped from denying water and sewer connections to VNP on account of nonpayment. Upon review, the Supreme Court concluded that VNP had enforceable reserved water and sewer allocations, but the Village could charge equitable fees for these reservations and may revoke the reservations for nonpayment. Furthermore, the Court concluded that VNP failed to meet its burden of demonstrating the unreasonableness of the Village’s reservation fees, and on that basis the Court affirmed the trial court’s decision. View "Vermont North Properties v. Village of Derby Center" on Justia Law

Appellants Energize Vermont, Inc. and several individuals challenged the Vermont Public Service Board (PSB)’s affirmance of a permit issued by the Agency of Natural Resources (ANR), approving an operational-phase stormwater management plan for appellee Green Mountain Power (GMP), with respect to the Kingdom Community Wind Project (Wind Project) on Lowell Mountain. Appellants raised a variety of challenges to the operational-phase permit, as well as other permits. On the appeal of the PSB order, the only issue this case presented to the Supreme Court was whether ANR complied with certain requirements of its own Vermont Stormwater Management Manual in granting the operational-phase permit. "Given the deferential standard of review, this straightforward plain meaning analysis needs little elaboration. Appellants have not met their burden." The Supreme Court found no clear and convincing error in ANR’s interpretation of the VSMM to allow an operational stormwater permit for the Wind Project’s level spreaders.View "In re ANR Permits in Lowell Mountain Wind Project" on Justia Law

Applicant Charles Ferrera and property owners Ronald and Susan Fenn appealed a Superior Court, Environmental Division order that affirmed the Town of Middlebury's denial of their application to operate a gravel pit. Applicants contended: (1) several key findings and conclusions were unsupported by the evidence; and (2) provisions of the Town's zoning regulations are unconstitutionally vague. Finding no error, the Supreme Court affirmed. View "In re Ferrera & Fenn Gravel Pit" on Justia Law

Defendants Timothy Persons and the Trust A of Timothy Persons appealed an Environmental Division decision holding that certain excavation work performed on their property violated the state Wetlands Protection and Water Resources Management laws and the state Wetlands Rules. Among other things, defendants contended they were not given adequate notice that portions of the lands in question contained a protected wetland, and therefore, should not have been subjected to fines. The Supreme Court found no merit to defendants' contentions, and affirmed the Environmental Division. View "Agency of Natural Resources v. Persons" on Justia Law

In consolidated appeals, the Lowell Mountains Group, Inc. (LMG), and the Towns of Albany and Craftsbury, challenged several Public Service Board orders related to the construction of a wind-electric-generation facility and associated facilities on Lowell Mountain in Lowell, Vermont. In May 2010, petitioners Green Mountain Power Corporation (GMP), Vermont Electric Cooperative, Inc. (VEC), and Vermont Electric Power Company, Inc. and Vermont Transco LLC (VELCO) requested a certificate of public good (CPG) to construct a wind-electric-generation facility on Lowell Mountain. On May 31, 2011, following testimony, site visits, a public hearing, and hearings, the Board issued a final order granting a CPG subject to forty-five conditions. Appellants and several other parties moved for reconsideration. On July 12, 2011, the Board modified its final order in certain respects. The Towns and LMG appealed that final order with modifications. The parties also raised compliance issues with the final order that the Board ultimately overruled. Upon review of the Board's orders, the Supreme Court found no abuse of discretion, and deferred to the Board's decisions with regard to the final order. Accordingly, the Court affirmed the Board. View "In re Green Mountain Power Corp." on Justia Law

Defendants Richard Barnett and Cedric and Leslie Sanborn appealed a judgment which ruled that the City of Montpelier may prohibit boating, fishing, and swimming in Berlin Pond, a public body of water located outside the City and used as the City's drinking water supply. The City contended that the restrictions were supported by both a state health order and the powers granted to the City by the State. The trial court agreed and issued a permanent injunction preventing Defendants from engaging in the listed recreational activities and from trespassing upon land surrounding the pond that is owned by the City. Upon review, the Supreme Court reversed the trial court: "[The Court's] decision reflects the fact that, under the laws of this state, the recreational use of Berlin Pond is a matter of state concern requiring a resolution at the state level. . . . [The Court] determine[d] only that the City's current powers are limited to preventing trespass upon its property." View "City of Montpelier v. Barnett" on Justia Law