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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.
2023 VT 57
No. 22-AP-286
In re Petition of Apple Hill Solar LLC Supreme Court
On Appeal from Public Utility Commission
April Term, 2023
Anthony Z. Roisman, Chair
Michael Melone, Allco Renewable Energy Limited, New Haven, Connecticut, for Appellant.
Ben Civiletti, Special Counsel, Montpelier, for Appellee Department of Public Service.
L. Brooke Dingledine of Valsangiacomo, Detora & McQuesten, P.C., Barre, for Appellee Apple Hill Homeowners Association.
Charity R. Clark, Attorney General, and Laura B. Murphy, Assistant Attorney General, Montpelier, for Amicus Curiae State of Vermont.
PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.
¶ 1. REIBER, C.J. Petitioner Allco Renewable Energy Limited appeals from the
Public Utility Commission’s denial of its request for a certificate of public good (CPG) to construct
a solar energy project in Bennington, Vermont. We affirm.
¶ 2. Under Vermont law, a company desiring to build an in-state electric generation
facility may not begin site preparation or construction unless the Commission “first finds that the
[project] will promote the general good of the State and issues a certificate to that effect.” 30
V.S.A. § 248(a)(1)(B). To issue a CPG, the Commission must find that the project meets specified criteria. Id. § 248(b). Among these are that the project “will not unduly interfere with the orderly
development of the region with due consideration having been given to . . . the land conservation
measures contained in the plan of any affected municipality,” id. § 248(b)(1), and that it “will not
have an undue adverse effect on aesthetics.” Id. § 248(b)(5). Under the test used by the
Commission, an adverse impact on aesthetics is undue if it “violate[s] a clear, written community
standard intended to preserve the aesthetics or scenic, natural beauty of the area.” In re Rutland
Renewable Energy, LLC, 2016 VT 50, ¶ 14, 202 Vt. 59, 147 A.3d 621 (quotation omitted).
¶ 3. In 2015, petitioner applied for a CPG to construct a 2.0-megawatt solar electric
generation facility in Bennington. The project site is in a Rural Conservation District as defined
in the Bennington Town Plan. The plan states that development in Rural Conservation Districts
“cannot be sited in prominently visible locations on hillsides or ridgelines.” In re Apple Hill Solar
LLC [Apple Hill I], 2019 VT 64, ¶ 3, 211 Vt. 54, 219 A.3d 1295.
¶ 4. Appellee Apple Hill Homeowners Association (AHHA) intervened in the CPG
proceeding, as did the Town of Bennington. The Town initially argued that petitioner should not
be granted a CPG because the project would violate clear, written community standards in the
Town Plan, and would therefore interfere with the orderly development of the region and have an
undue adverse impact on aesthetics. The Town later changed its position, voting not to oppose the
project, and withdrew from the proceeding. Id. ¶¶ 5-6.
¶ 5. Based in part on the Town’s decision not to oppose the project, the hearing officer
issued a proposal for decision recommending that the Commission conclude the project would not
violate any clear, written community standard, and would therefore not unduly interfere with the
orderly development of the region or have an undue adverse effect on aesthetics. The Commission
adopted the hearing officer’s findings and issued petitioner a CPG.
¶ 6. AHHA and another neighbor-intervenor appealed, and in a decision issued in
September 2019, we reversed. Apple Hill I, 2019 VT 64, ¶ 1. We held that the Commission’s
2 conclusion that the project would not interfere with the orderly development of the region was
clearly erroneous because it was based on the Town selectboard’s decision not to oppose the
project. Id. ¶ 30. We explained that the Town’s decision to withdraw its opposition did not mean
that the project complied with the Town Plan or that the Town believed that it did. Id. We
therefore remanded for the Commission “to assess the impact of the project on the orderly
development of the region in light of the Town Plan without consideration of the selectboard’s
purported position on the subject.” Id. ¶ 31. We also reversed the Commission’s conclusion that
the project would not have an undue adverse impact on aesthetics, because it rested on clearly
erroneous findings that the Town Plan’s standards for the Rural Conservation District did not
constitute clear, written community standards. Id. ¶¶ 37-40. We instructed the Commission to
consider on remand whether the project violated the specific design standards in the Town Plan.
Id. ¶ 41.
¶ 7. The parties agreed on remand that no further evidence was required for the
Commission to render its decision. In re Apple Hill Solar LLC [Apple Hill II], 2021 VT 69, ¶ 8,
215 Vt. 523, 280 A.3d 44. The Commission appointed a hearing officer to address the issues
identified by this Court. The hearing officer found that petitioner’s proposed project would violate
two standards in the Town Plan because it was a commercial development that would be
incompatible with the rural character of the area and it would be sited in a prominently visible
location on a hillside. The hearing officer concluded that the project would therefore unduly
interfere with the orderly development of the region and have an undue adverse impact on
aesthetics. Id. ¶¶ 15-19. After hearing argument from the parties, the Commission adopted the
hearing officer’s proposal and denied petitioner’s request for a CPG. Id. ¶ 20.
¶ 8. Petitioner appealed the decision to this Court. We reversed in part, concluding that
the Commission erred in finding the impacts of the project to be undue based on a violation of the
Town Plan’s provision favoring development in the Rural Conservation District consistent with
3 the rural character of the area. Id. ¶¶ 37-43. We explained that the cited provision was too broad
and general to constitute a clear, written community standard. Id. ¶ 42. However, we affirmed the
Commission’s conclusion that the project would violate the clearly written standard prohibiting
development in prominently visible locations on hillsides. Id. ¶ 50. Because § 248(b)(1) only
required the Commission to give such standards “due consideration,” and § 248(b)(5) likewise did
not compel the Commission to deny the permit as a result of the violation, we remanded the matter
“for the [Commission] to reassess petitioner’s application without the conclusions that siting the
facility in the Rural Conservation District would interfere with orderly development and cause an
undue adverse aesthetic impact.” Id. ¶ 67.
¶ 9. On remand, after requesting and receiving briefing by the parties, the Commission
issued an order denying the CPG petition. The Commission concluded that the placement of the
proposed project in a prominently visible location on a hillside would result in undue interference
with the orderly development of the region and have an undue adverse impact on aesthetics. The
Commission found that the potential benefits of the project did not outweigh these impacts because
the State could realize similar benefits from other solar projects located in areas that did not run
afoul of town and regional plans. Petitioner moved for reconsideration, which the Commission
denied. This appeal followed.
¶ 10. Petitioner argues on appeal that the Commission’s decision violated various
provisions of the Vermont Administrative Procedure Act (VAPA), relied on evidence not in the
record, contained impermissible post-hoc rationalizations, ignored this Court’s remand order, and
was arbitrary and capricious. Petitioner argues that the Commission ought to have allowed it to
present additional evidence regarding the visibility and social benefits of the project. Petitioner
further claims that the Commission’s application of § 248(b)(1) and (5) deprived it of due process
and equal protection. As discussed below, we conclude that none of petitioner’s claims have merit
and therefore affirm the Commission’s decision.
4 ¶ 11. We begin by noting the limited nature of our review. “In a § 248 proceeding, the
[Commission] is engaged in a legislative, policy-making process.” In re Vt. Elec. Power Co., 2006
VT 69, ¶ 6, 179 Vt. 370, 895 A.2d 226 (quotation omitted). The Commission “must employ its
discretion to weigh alternatives presented to it, utilizing its particular expertise and informed
judgment.” Id. (quotation omitted). Accordingly, when reviewing the Commission’s decision in
a CPG proceeding, “[w]e give great deference to the [Commission]’s expertise and judgment and
accord a strong presumption of validity to [its] orders.” In re UPC Vt. Wind, LLC, 2009 VT 19,
¶ 2, 185 Vt. 296, 969 A.2d 144 (quotation omitted). We will not disturb the Commission’s factual
findings unless the appellant demonstrates that they are clearly erroneous. Id.
I. Procedural Claims
A. Compliance with 3 V.S.A. § 811
¶ 12. Petitioner first asserts that the Commission violated VAPA by failing to issue a
proposal for decision and give the parties an opportunity to comment before it denied the CPG
petition. Petitioner argues that a proposal for decision was required because a majority of the
Commission’s members did not hear the case or read the record.
¶ 13. In a contested case, VAPA requires that if “a majority of the officials of the agency
who are to render the final decision have not heard the case or read the record,” the agency may
not issue a decision adverse to a party without first serving a proposal for decision and giving the
party an opportunity to object and present briefing and oral argument. 3 V.S.A. § 811. But “[t]here
is no such requirement where the [Commission] does read the record or hear the case, or both. In
such situations, the [Commission] is not accepting the determination of its hearing officer without
itself evaluating the facts. It is itself performing the duty imposed by 30 V.S.A. § 11[(c)].”1 Vt.
Elec. Power Co. v. Bandel, 135 Vt. 141, 147, 375 A.2d 975, 979 (1977).
1 Section 11(c) of Title 30 states that “[t]he Commission shall hear all matters within its jurisdiction and make its findings of fact.” 5 ¶ 14. It is true that the evidence in this case was heard by a hearing officer, not the
Commission itself. However, petitioner provides no support for its assertion that a majority of the
Commission members did not read the record, and the facts do not support such an inference. The
Commission’s May 2022 decision denying the CPG was signed by two of its three members.
These same members were present at the March 2020 oral argument when the Commission
considered whether the project violated the Town Plan. At that point, the evidentiary record was
complete. The same two members signed the May 2020 decision; they also signed the order
requesting additional briefing after this Court’s second remand.2 The final decision was issued
several months after the parties submitted briefing, indicating that the commissioners had ample
time to review the record. Under these circumstances it is reasonable to conclude that a majority
of the current commissioners reviewed the record. Cf. In re State Aid Highway No. 1, Peru, 133
Vt. 4, 10, 328 A.2d 667, 671 (1974) (concluding that where majority of former Environmental
Board members were not present and final decision was signed only by chairman and issued before
transcripts were prepared, Board did not comply with § 811). The Commission was therefore not
required to issue a proposal for decision before denying the CPG. See Vt. Elec. Power Co., 135
Vt. at 147, 375 A.2d at 979.
B. Compliance with 3 V.S.A. § 809
¶ 15. Petitioner next contends that the Commission violated 3 V.S.A. § 809(g) by basing
its decision on evidence outside the record without notifying the parties. Section 809(g) provides
that “[f]indings of fact shall be based exclusively on the evidence and on matters officially
noticed.” Evidence that would be inadmissible in court may be admitted in a Commission
proceeding if it will “illuminate the case,” In re Cent. Vt. Pub. Serv. Corp., 141 Vt. 284, 292, 449
A.2d 904, 909 (1982), but “[t]here is no relaxation of the requirement . . . that evidence must be
2 Notably, petitioner did not claim in its prior appeal that these commissioners had failed to review the record. 6 admitted before it is relied upon by the [Commission].” In re Twenty-Four Vt. Utils., 159 Vt. 339,
350, 618 A.2d 1295, 1302 (1992). The Commission may take judicial notice of certain types of
facts if it gives the parties notice and an opportunity to respond. 3 V.S.A § 810(4). Petitioner
identifies several findings that it claims were based on evidence not admitted or noticed. We
conclude that none of these statements runs afoul of § 809(g).
¶ 16. Petitioner first challenges the Commission’s determination that the project would
have a regional impact because “[v]isitors entering Vermont would be greeted at this point by a
view of the Facility on a hillside above a center welcoming them to the region and state,” arguing
that it is not sufficiently supported by the evidence. This finding is merely a restatement of the
Commission’s findings in its previous order, which we upheld in Apple Hill II. 2021 VT 69, ¶ 50
(“Petitioner’s evidence and simulations support the [Commission’s] findings on this point,
including the visibility of the project, on a hillside, during winter leaf-off conditions from various
vantage points, including from the heavily traveled Route 7 and from the Vermont Welcome
Center.”). Those findings were based on evidence presented to the hearing officer and we reject
petitioner’s attempt to revisit them here. See Whippie v. O’Connor, 2011 VT 97, ¶ 7, 190 Vt. 600,
30 A.3d 1292 (mem.) (explaining that “questions necessarily involved and already decided by”
earlier decision of this Court will not be revisited in subsequent appeal).
¶ 17. Petitioner also challenges the following statements made by the Commission in its
decision: “[T]he benefits associated with the proposed Facility’s contractual capacity will be
realized by the State and its residents by a different project under a different contract, and more
than likely by a project proposal that will not violate a clear, written community standard on
aesthetics”; “[T]he Standard-Offer Program has a 127.5 MW cap, and that cap will be reached in
the next few years with or without this particular Facility”; and the Commission’s statement that
unlike large-scale wind projects, 2.0-megawatt solar projects like that proposed by petitioner “do
not need to be sited in prominently visible locations on hillsides to be economically viable.” We
7 disagree with petitioner’s contention that these statements constituted findings on matters outside
the record.
¶ 18. In reviewing these statements, it is important to understand the context in which the
Commission made them. The central issue before the Commission on remand was whether the
benefits of the project would outweigh its violation of the Town Plan’s standard prohibiting
development in prominently visible locations on hillsides. See Apple Hill II, 2021 VT 69, ¶ 67
(explaining that Commission retained discretion to approve project despite adverse effects if it
found that project would serve public good). Petitioner argued to the Commission that the project
would add 2.0 megawatts of solar generation capacity and thereby reduce reliance on fossil fuels
and regional load-bearing charges and create jobs and tax revenue for the area. The Commission
essentially concluded that these benefits were not unique to petitioner’s project and that under the
structure of the standard-offer program—through which petitioner holds a contract—the same
benefits would more than likely be realized by another solar project if petitioner’s project were
denied.3
¶ 19. As the agency responsible for overseeing both the CPG process and the standard-
offer program, see 30 V.S.A. § 8005a(a), the Commission was entitled to evaluate the evidence
using its “experience, technical competence, and specialized knowledge.” 3 V.S.A. § 810(4). The
Commission’s statement that the standard-offer program had a 127.5-megawatt limit reflects the
language of the statute it is charged with administering. 30 V.S.A. § 8005a(c). Its observation
3 The standard-offer program promotes the development of renewable energy in Vermont “by requiring electric utilities to purchase a certain amount of power from limited-sized (up to 2.2 MW) electrical providers under long-term power-purchase contracts that guarantee a set price for the providers’ energy for the duration of the contract.” In re Portland St. Solar LLC, 2021 VT 67, ¶ 4 n.2, 215 Vt. 394,264 A.3d 872; see 30 V.S.A. § 8005a(b)-(c) (setting 2.2-megawatt maximum energy-generating capacity for individual standard-offer plants and 127.5-megawatt cumulative plant capacity under program). If a proposed project accepting a standard offer fails to meet the requirements of the program, its contract will terminate, and any capacity reserved for it will be reallocated to other projects. 30 V.S.A. § 8005a(j). Petitioner holds a contract for its proposed facility under the standard-offer program. 8 that the program cap will soon be reached is a matter within its specialized knowledge. As the
Commission explained elsewhere in its decision, its experience with the standard-offer program is
“that there will be more bids than available capacity in each round of bidding.” It reasonably
inferred from this experience that the benefits of the project would be realized regardless of
whether the petitioner’s project is built. Likewise, the Commission’s statement that the benefits
of the project could likely be gained by another solar project located in an area that did not violate
a clearly written community standard is a reflection of its experience with considering and granting
CPGs for standard-offer projects. The Commission did not create its own evidence or rely on data
that was not noticed. Cf. Twenty-Four Vt. Utils., 159 Vt. at 350, 618 A.2d at 1302 (holding that
Public Service Board’s recalculations of data based on its expertise “crossed the line into evidence
creation” and thereby violated 3 V.S.A. § 810(3), (4)); In re Green Mountain Power Corp., 131 Vt.
284, 304-05, 305 A.2d 571, 583 (1973) (holding that Board erred in relying on its own knowledge
that certain proposed rate schedules were below cost where it failed to notify parties of its intent
to rely on that information and afford them opportunity to contest it).
¶ 20. Similarly, the Commission’s discussion of the contrasts between the impacts
inherent in locating large-scale wind facilities and those of relatively small solar facilities was a
response to petitioner’s argument that its project was comparable to a previously approved wind
project on Lowell Mountain. See In re Green Mountain Power Corp., 2012 VT 89, ¶ 1, 192 Vt.
429, 60 A.3d 654 (affirming Public Service Board’s order determining that benefits of 63-
megawatt wind project on Lowell Mountain outweighed adverse impacts and granting CPG). The
Commission was simply distinguishing that case; it did not rely on outside evidence or information
in so doing. We therefore reject petitioner’s claims that the Commission failed to comply with 3
V.S.A. § 809(g).4
4 Petitioner also claims that the Commission violated 3 V.S.A. § 809(c), which states that in a contested case, “[o]pportunity shall be given all parties to respond and present evidence and 9 II. Post-Hoc Rationalizations and Need for Additional Evidentiary Hearing
¶ 21. Petitioner next argues that the Commission relied on different reasons for denying
the CPG petition than it had previously, in violation of the “foundational principle of
administrative law that judicial review of agency action is limited to the grounds that the agency
invoked when it took the action.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S.
Ct. 1891, 1907 (2020) (quotation omitted). Petitioner argues that on remand from this Court’s
decision in Apple Hill II, the Commission was permitted to either offer a fuller explanation of its
reasoning at the time of the original denial of the CPG petition or take new action. Petitioner
argues that the Commission did not simply amplify its prior reasons for the denial and was
therefore prohibited from assessing the societal benefits of the project without first holding an
evidentiary hearing.
¶ 22. We agree with the general principle that the Commission’s decision “must stand or
fall on the reasons given contemporaneously with the decision and not a later revision of those
reasons.” Conservation L. Found. v. Burke, 162 Vt. 115, 128, 645 A.2d 495, 503 (1993).
However, we disagree that the Commission violated this principle. In Apple Hill II, this Court
instructed the Commission to assess whether the project would promote the general good of the
State despite violating the prominently visible standard. 2021 VT 69, ¶ 67. On remand, the
Commission used the existing evidence to assess the societal benefits of the project and concluded
that they were insufficient to mitigate the violation of the community standard. The Commission
did not offer different reasons on appeal to support its decision below. Cf. In re TruConnect
Commc’ns, Inc., 2021 VT 70, ¶ 25, 215 Vt. 422, 263 A.3d 770 (declining to review Commission
order using rationale raised by appellate counsel for first time on appeal).
argument on all issues involved.” Because the Commission did not improperly rely on evidence outside the record or that should have been noticed, and petitioner was afforded ample opportunities to present evidence and argument on the issues, we likewise reject its claim that the Commission violated 3 V.S.A. § 809(c). 10 ¶ 23. Assuming for the purposes of argument that the Commission’s decision constituted
“new action” under Regents, we conclude that petitioner has failed to demonstrate that the
Commission did not comply with applicable procedural requirements before issuing its May 2022
decision. The Commission gave the parties an opportunity to weigh in on the narrow remaining
issue identified in Apple Hill II by requesting briefing upon remand. We disagree that the
Commission was required to hold an additional evidentiary hearing because the parties had
previously indicated the record was complete. The Commission conducted two evidentiary
hearings before issuing its initial decision granting the CPG. After we reversed and remanded that
decision for the Commission to assess whether the project violated the clearly written community
standards set forth in the Town Plan, the parties agreed that no further evidence was required to
resolve the matter. Apple Hill II, 2021 VT 69, ¶ 8. Petitioner therefore expressly waived any right
to another evidentiary hearing.
¶ 24. Moreover, in its request for an additional hearing petitioner indicated that it wished
to submit evidence about whether the project would be prominently visible on the hillside—an
issue on which the Commission had already made extensive findings, which were upheld by this
Court.5 This was no longer a contested issue requiring an evidentiary hearing. See 30 V.S.A.
§ 248(a)(4)(B) (“The Public Utility Commission shall hold evidentiary hearings at locations that
it selects in any case conducted under this section in which contested issues remain or when any
party to a case requests that an evidentiary hearing be held.”); Whippie, 2011 VT 97, ¶ 7 (declining
to revisit factual or legal issues resolved in prior appeal). Indeed, petitioner conceded that “[t]he
record was already complete with respect to the extent of the societal benefits of the [p]roject,”
5 Although petitioner asserts in its briefs on appeal that it also wanted to present evidence of the societal benefits of the project, its request to the Commission indicated that it was only seeking to present further evidence on the visibility of the project. 11 which was the sole issue before the Commission. This Court did not require the Commission to
hold an additional evidentiary hearing as part of the mandate in Apple Hill II. 2021 VT 69, ¶ 67.
¶ 25. Petitioner argues that the Commission should nevertheless have granted its request
to reopen the evidentiary record under Vermont Rule of Civil Procedure 59 because the evidence
regarding the visibility of the project was outdated. According to petitioner, the vegetation has
grown up around the project and there was no evidence about wintertime conditions. We are
unpersuaded by these claims. Petitioner had the opportunity to present evidence about wintertime
conditions, and projections regarding vegetation growth, at the earlier hearings, but did not do so.
The Commission therefore did not abuse its discretion in denying petitioner’s request to reopen
the evidence on these matters. See Rubin v. Sterling Enters., Inc., 164 Vt. 582, 588-89, 674 A.2d
782, 786 (1996) (recognizing that “[d]isposition of a Rule 59 motion is committed to the court’s
sound discretion,” and finding no abuse of discretion in court’s rejection of party’s attempt to
submit evidence in Rule 59 motion that could have been submitted at trial).
III. Whether Commission Erred in Denying CPG
¶ 26. Petitioner claims that the Commission’s decision relied on erroneous findings and
failed to give adequate weight to the societal benefits of the project. We consider each argument
in turn and conclude that none of them have merit.
¶ 27. First, petitioner argues that the Commission’s finding that Bennington County will
be able to meet its 2025 renewable energy goal without the project is unsupported by any evidence.
However, the Commission did not make such a finding; it stated that it was “not persuaded by
[petitioner’s] contention that Bennington County will not be able to meet its 2025 renewable
energy targets if the proposed Facility is not approved.” This does not amount to an affirmative
finding that Bennington County will be able to meet its targets. Nor are we convinced that the
Commission erred in rejecting petitioner’s claim on this point. The Commission explained that
the evidence relied upon by petitioner did not show that the 2025 goal could not be met without
12 the facility, and instead showed that there were ample other locations in Bennington County where
solar generation development could take place. We defer to the Commission’s assessment of this
evidence. See Cent. Vt. Pub. Serv. Corp., 167 Vt. at 627, 711 A.2d at 1160 (“When conflicting
or . . . imperfect evidence is admitted, it is not our province to reweigh such evidence, or reassess
its credibility.”).
¶ 28. Petitioner next argues that the Commission’s decision is arbitrary and capricious
because the Commission concluded that the project had no societal benefits. Again, Petitioner
mischaracterizes the Commission’s order. As explained above, the Commission found that the
project would have societal benefits but concluded that the benefits were not unique to this project
and did not outweigh its negative impacts. Supra, ¶¶ 18-19. This conclusion fell within the
Commission’s discretion “to weigh alternatives presented to it, utilizing its particular expertise and
informed judgment,” and we therefore defer to its decision. UPC Vt. Wind, 2009 VT 19, ¶ 2
(quotation omitted).
¶ 29. Petitioner further claims that the Commission’s decision implicitly required it to
prove that there was no better alternative site available for the project, in violation of this Court’s
decision in In re Rutland Renewable Energy, LLC, 2016 VT 50, ¶ 28, 202 Vt. 59, 147 A.3d 621.
In Rutland Renewable Energy, this Court addressed whether a project satisfied the modified
Quechee test used by the Commission to determine if an adverse aesthetic impact was undue. Id.
¶ 14 (reciting elements of modified Quechee test used in assessing whether aesthetic impact is
undue under § 248(b)(5)). We rejected the notion that, to demonstrate that an applicant has taken
“generally available mitigating steps” to reduce the impact of a project, an applicant must show
that better alternative sites are unavailable. Id. ¶ 28.
¶ 30. The Quechee test is not relevant here because the Commission had already
determined that the adverse aesthetic impacts of the project were undue under a separate prong of
the test, namely, the violation of a clear, written community standard. And while the availability
13 of alternative sites is typically considered in the context of that test, see In re Acorn Energy Solar
2, LLC, 2021 VT 3, ¶ 74, 214 Vt. 73, 251 A.3d 899, our case law does not prohibit the Commission
from considering the availability of alternative sites in determining the ultimate question of
whether the project would “promote the general good of the State.” 30 V.S.A. § 248(a)(1)(B); see
UPC Vt. Wind, 2009 VT 19, ¶ 7, (explaining that “ultimate question to be resolved” in CPG
proceeding “was whether the project promoted the general good of the state”). The record
contained evidence that other, less visually offensive sites suitable for solar generation were likely
available in Bennington County. The Commission did not err in considering this information as
part of its overall assessment of whether the project would serve the public good.
¶ 31. Petitioner also contends that the Commission’s decision is arbitrary and capricious
because it failed to discuss how much interference with orderly development of the region under
§ 248(b)(1) or adverse aesthetic impact under § 248(b)(5) the project would cause. Again, these
issues had already been resolved in the Commission’s earlier decision, and this Court upheld the
Commission’s determinations that the project failed to satisfy either criterion. See Apple Hill II,
2021 VT 69, ¶ 67 (holding that “the [Commission] did not err in concluding that, because it would
be prominently visible on a hillside, the project would interfere with orderly development under
30 V.S.A. § 248(b)(1) and would cause an undue adverse impact under 30 V.S.A. § 248(b)(5)”).
The only task for the Commission on remand was to assess whether the societal benefits of the
project would be sufficient to mitigate its impacts. The Commission conducted this analysis and
explained its decision, which is supported by the record and consistent with the statute. We
therefore “will not disturb the [Commission’s] assessment of the weight of the evidence on
appeal.” UPC Vt. Wind, 2009 VT 19, ¶ 35.
IV. Constitutional Challenges
¶ 32. Finally, petitioner claims that the Commission’s application of § 248(b)(1) and (5)
is unconstitutionally vague and standardless, thus violating petitioner’s due process and equal
14 protection rights. While petitioner raised this argument during the proceedings on the first remand,
it failed to adequately renew this claim on the second remand to preserve it for review in this
appeal. Petitioner’s assertion in its Rule 59 motion that “[t]he Commission’s application of the
aesthetics and orderly development criteria here violates [petitioner’s?] rights to freedom of speech
and expression, equal protection and due process” was too imprecise to preserve the challenge that
it now seeks to raise on appeal. See Vt. Nat’l Tel. Co. v. Dep’t of Taxes, 2020 VT 83, ¶ 54, 213
Vt. 421, 250 A.3d 567 (“To properly preserve an issue, a party must present the issue to the
administrative agency with specificity and clarity in a manner which gives the agency a fair
opportunity to rule on it.” (quotation and alteration omitted)).
¶ 33. Moreover, although petitioner claims to be challenging the constitutionality of the
statute as applied to it, petitioner “points to no set of facts in this case making the statute
unconstitutional, nor to a set of facts under which the statute would be constitutional.” In re
Investigation to Rev. the Avoided Costs that Serve as Prices for the Standard-Offer Program in
2019, 2020 VT 103, ¶ 43, 213 Vt. 542, 251 A.3d 525. Rather, petitioner apparently “seeks to
invalidate the . . . provision outright.” Id. As we have explained to petitioner previously, the
Commission lacks jurisdiction to adjudicate a facial challenge to a statute. Id. ¶ 44; see Westover
v. Vill. of Barton Elec. Dep’t, 149 Vt. 356, 359, 543 A.2d 698, 699 (1988). Accordingly,
petitioner’s constitutional challenges would fail even if they had been properly preserved for our
review.
Affirmed.
FOR THE COURT:
Chief Justice