On March 11, 2015, the Public Service Board granted a Certificate of Public Good to Rutland Renewable Energy, LLC for the construction and operation of a 2.3MW solar electric generation facility located at the intersection of Cold River Road and Stratton Road in Rutland, VT.
The decision (Docket No. 8188) provided good insight into the PSB process and raised several issue of interpretation that have already had repercussions at the State level. The Town of Rutland contended that the project would have an undue adverse impact on the area in which it was located. The PSB, using the Quechee Test (which is used under Act 250 to determine aesthetic impacts), agreed that the project had an adverse impact, but not undue. To determine if an impact under the Quechee Test is “undue,” the board must affirmatively determine that the project offends “the sensibilities of the average person.” In their ruling, the PSB determined that the abutters to the project (who would most obviously be impacted) could not be considered “average people” due to their particularized interest in the project. Further, the PSB wrote that their consideration of aesthetics under 248 is “significantly informed by the overall societal benefits of the project.” In other words, the needs of the many outweigh the needs of the few, under section 248.
The Town also raised concerns about historic impacts and degradation of primary agricultural soils. A lack of clearly written standards undermined their objection. The PSB uses the Middlebury Test to determine historic impact; the final condition is that the proposed development must violate a “clear written community standard.” With no clear standards, the PSB could not agree. The Plan contained policies discouraging (not prohibiting) development on primary agricultural soils, but encouraged residential development in the same location. The PSB logically argued that residential development would have a much more substantial impact on prime agricultural soils than a solar farm. As planners, we need to always avoid double standards, lest they be ignored completely in legal cases.
The most significant ruling as part of this docket was aimed at Rutland’s Standards for the siting of solar facilities. Rutland adopted these rules as a supporting plan (V.S.A. Title 24, § 4432), for the purposes of implementing the Municipal Plan. The Standards included setback and screening requirements that would have rendered the project impossible to develop. While reasonably feasible standards are often considered, Rutland’s were deemed unreasonable. More concerning, however, was the assessment that the standards were “too specific.” The PSB argued that setbacks are only authorized as part of zoning, and the Certificate of Public Good process is exempt from local regulation.
To address this issue, the Legislature recently passed H. 40, which creates minimum setback requirements for all in-state ground-mounted solar electric generation facilities. In addition, screening requirements adopted under a zoning bylaw (or a stand-alone ordinance) must also be considered (but such requirements may not have the effect of prohibiting the installation of such a facility). Given the confusion caused by the Cold River Decision, this move by the Legislature seems appropriate.