Vermont High Court Sides With Developers

The five-member court split three ways before ruling 3-2 in support of allowing construction of the Rutland Town project.

📅   Wed May 18, 2016 - Northeast Edition
Dave Gram - Associated Press


A fragmented Vermont Supreme Court sided with developers of a major solar power project in Rutland Town against the wishes of the town and its neighbors.
A fragmented Vermont Supreme Court sided with developers of a major solar power project in Rutland Town against the wishes of the town and its neighbors.

MONTPELIER, Vt. (AP) A fragmented Vermont Supreme Court sided with developers of a major solar power project in Rutland Town against the wishes of the town and its neighbors.

The five-member court split three ways before ruling 3-2 in support of allowing construction of the Rutland Town project. The three-member majority was split 2-1 on one of the big issues in the case.

The court upheld a ruling by the state Public Service Board that gave the 2.3 megawatt Rutland Renewable Energy project a green light. In doing so, it rehashed arguments heard at the Legislature over who should have greater say — the state or local communities — when developers come to a town looking to build solar and wind-power projects.

The town spent a year developing local solar siting standards, only to see them rejected by the Public Service Board as carrying sufficient weight in its consideration of the project at hand. Town officials then authored a resolution, demanding greater local say over the projects. More than 150 of Vermont's 251 municipalities signed on.

The town and neighbors objected that the Rutland Renewable Energy project would have undue aesthetic and historic impacts and would use prime agricultural land. They also sought to use an addendum to the town plan to slow the project or scale it back.

But the court majority upheld the board's findings that the opponents' concerns did not outweigh the greater good of the state. It said it generally grants great deference to decisions by the board, which has expertise in energy issues.

The “Legislature can change the balance between state and local regulation as it deems appropriate,” the majority opinion said. “In the absence of such a statutory change, the Board has the final policy decision. Under the deferential standard of review, we must uphold that policy choice.”

The court decision came as a Senate committee was considering House changes to a Senate-passed bill that would give towns and regional planning commissions more clout but call on them to develop energy plans comporting with a state goal of getting 90 percent of Vermont's energy from renewables by 2050.

Associate Justices John Dooley III and Marilyn Skoglund wrote the majority opinion; Associate Justice Beth Robinson wrote a concurrence that split in one respect from the majority, saying it didn't grapple enough with the question of whether the board had given “due consideration” to the town's concerns.

Chief Justice Paul Reiber, who practiced law in Rutland before former Gov. Jim Douglas appointed him to the court, joined by Associate Justice Harold Eaton, wrote a stinging dissent that called the Public Service Board decision “self-serving” and “disingenuous at best.”