Due Consideration and Preferred Sites: Vermont Supreme Court Reaffirms Limits of Municipal Control and Deference to Agency Expertise in Solar Siting

Due Consideration and Preferred Sites: Vermont Supreme Court Reaffirms Limits of Municipal Control and Deference to Agency Expertise in Solar Siting

I. Introduction

In In re Petition of Randolph Davis Solar LLC (Joan Allen and Michael Binder, Appellants), 2025 VT 63, the Vermont Supreme Court affirmed the Public Utility Commission’s (PUC) grant of a Certificate of Public Good (CPG) for a 500 kW net-metered solar project in Randolph, Vermont. The neighbors, Joan Allen and Michael Binder, challenged the PUC’s decision on three fronts:

  1. That the project did not satisfy the “orderly development of the region” criterion under 30 V.S.A. § 248(b)(1);
  2. That the project would cause unreasonable soil erosion and water pollution, contrary to 30 V.S.A. § 248(b)(5) and 10 V.S.A. § 6086(a)(4); and
  3. That the project had been improperly treated as a “preferred site” under PUC Rule 5.103.

The case sits at the intersection of three recurring tensions in Vermont energy siting law:

  • The balance between state-level energy planning under § 248 and local land-use priorities expressed in town and regional plans;
  • The interplay between PUC determinations under § 248 and technical regulatory determinations by other agencies, especially the Agency of Natural Resources (ANR); and
  • The evolving role of municipalities in designating “preferred sites” for net-metered solar under PUC Rule 5.100.

Chief Justice Reiber, writing for a unanimous Court, rejected all three challenges and affirmed the PUC. The decision does not radically alter § 248 jurisprudence, but it crystallizes and reinforces several important principles:

  • The phrase “due consideration” in § 248(b)(1) continues to mean that town and regional plan land-conservation measures guide but do not control CPG decisions, unless the statute expressly gives “substantial deference.”
  • Absent extraordinary circumstances, the PUC may rely on municipal determinations that a site is a “preferred site” under Rule 5.103, rather than re‑litigating technical measurement disputes over conditions set by the town.
  • The PUC may give significant weight to ANR’s permitting decisions and technical interpretations—such as how to calculate “impervious surface” for solar arrays—when applying § 248(b)(5) and cross‑referenced Act 250 criteria.

II. Summary of the Opinion

A. Factual Background

Randolph Davis Solar LLC sought a CPG to build a 500 kW net-metered solar facility in Randolph. Portions of the project’s access road and interconnection line would be on land with slopes exceeding 25% (¶ 6).

In June 2021, the Two Rivers-Ottauquechee Regional Commission, the Randolph Planning Commission, and the Randolph Selectboard jointly issued a letter supporting the project and asking the PUC to treat it as a “preferred site” under Rule 5.103 (¶ 7). Later, neighbors pointed out that the Town Plan prohibits energy development on slopes over 25%. The Town responded by conditioning its support on:

  1. No solar panels being installed on slopes exceeding 25%; and
  2. Provision of the final site plan to the Town and neighbors (¶ 8).

The applicant revised its design to remove panels from slopes over 25% and promised a confirming survey, but there were multiple iterations of site plans using different surveying methodologies (LiDAR versus limited on-the-ground points), raising questions about slope accuracy (¶ 9 & n.3).

A PUC hearing officer, troubled by the uncertainty over slope measurements and concerned that the Town’s conditions might not be met, recommended denying the CPG (¶ 9). The full Commission rejected that recommendation, held that the key question was whether the Town was satisfied its own conditions were met, and stated that, absent extraordinary circumstances, it would not “second-guess a municipal determination that a site is preferred” (¶ 10). On remand, the applicant obtained a January 2024 letter from the Town confirming its conditions were satisfied (¶¶ 10–11).

Separately, ANR issued a construction stormwater permit under General Permit 3-9020 for “low-risk” sites, after evaluating the project’s proposed erosion and stormwater controls, even though development would occur on slopes greater than 25% (¶ 13). Compliance with the EPSC Standards and the Low-Risk Site Handbook for Erosion Prevention and Sediment Control was required.

The PUC ultimately found:

  • That the project would not unduly interfere with the orderly development of the region under § 248(b)(1);
  • That, given ANR’s permit and the required erosion and stormwater controls, it would not cause unreasonable soil erosion under § 248(b)(5) and § 6086(a)(4); and
  • That, based on the Town’s renewed confirmation, the site qualified as a “preferred site” under Rule 5.103 (¶¶ 11–15).

Neighbors sought reconsideration at the PUC (denied) and then appealed to the Vermont Supreme Court (¶ 15).

B. Holding

The Court affirmed the PUC on all issues. Specifically, it held that:

  1. The PUC correctly applied the “due consideration” standard to the Town Plan’s slope prohibition and permissibly found the project satisfied § 248(b)(1)’s orderly development criterion, even though the Town Plan (which lacked an affirmative “energy compliance” determination under 24 V.S.A. § 4352) was not strictly followed (¶¶ 19–24, 33–37).
  2. The PUC did not err in finding that the project would not cause unreasonable soil erosion or water pollution under § 248(b)(5) and § 6086(a)(4), where ANR had issued a low-risk construction stormwater permit and the applicant committed to ANR-mandated erosion-control measures (¶¶ 38–41, 46–47).
  3. The PUC reasonably deferred to ANR’s method of calculating “impervious surface” for solar panels (counting only the base/foundation that blocks infiltration, not the elevated panel surface) and properly treated ANR’s filings and technical materials as evidence (¶¶ 42–47).
  4. The PUC reasonably interpreted and applied Rule 5.103 by accepting the Town’s January 2024 confirmation that its conditions were met and by declining to second-guess the Town’s preferred-site determination in the absence of extraordinary circumstances (¶¶ 48–52).

III. Analysis

A. Precedents and Statutory Framework

1. Section 248 and the Concept of “Orderly Development”

Section 248 of Title 30 governs siting and approval of electric generation facilities in Vermont. No such facility may be constructed without a CPG from the PUC. To issue a CPG, the PUC must find the project “promotes the general good of the State” and specifically satisfies multiple criteria in § 248(b), including:

  • Orderly development of the region, § 248(b)(1); and
  • Undue adverse effects on specified resources, § 248(b)(5), which incorporates many Act 250 criteria, including soil erosion under 10 V.S.A. § 6086(a)(4) (¶¶ 2–4).

Section 248(b)(1) requires the PUC to give “due consideration” to municipal and regional plans, recommendations of local planning bodies and selectboards, and land-conservation measures in those plans. If a plan has received an “affirmative determination of energy compliance” under 24 V.S.A. § 4352, those land-conservation measures are entitled to “substantial deference” instead of merely due consideration (¶ 3 & n.1).

2. The Origin and Meaning of “Due Consideration”

The decision revisits and clarifies the longstanding “due consideration” standard, grounded in:

  • City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975) (¶¶ 20–21).
  • In re Vermont Electric Power Co., 2006 VT 69, 179 Vt. 370, 895 A.2d 226.
  • In re UPC Vermont Wind, LLC, 2009 VT 19, 185 Vt. 296, 969 A.2d 144.
  • In re Apple Hill Solar LLC (Apple Hill I, 2019 VT 64; Apple Hill II, 2021 VT 69).
  • In re Acorn Energy Solar 2, LLC, 2021 VT 3.

In City of South Burlington, the Court addressed whether a transmission line needed a municipal zoning permit and, in that context, construed the “due consideration” language. The Court held that:

  • Municipalities “play a secondary role” when their regulations conflict with statewide utility projects (¶ 20).
  • “Municipal enactments, in the specific area, are advisory rather than controlling” (¶ 20).
  • Allowing a municipality’s zoning rules to prevent a major transmission line would improperly give local government a veto over a project “entrusted to a single planning and supervisory agency” (¶ 20).

This understanding of “due consideration” as “advisory, not controlling” has been repeatedly reaffirmed in later cases (¶ 21). For example:

  • Vermont Electric Power Co., 2006 VT 69, ¶¶ 25, 27: Court affirmed that the PUC need only address town-plan provisions and is not bound by them.
  • UPC Vermont Wind, 2009 VT 19, ¶ 17: explicitly rejected the argument that the PUC must find “strict adherence” to a regional plan; the PUC “need only give ‘due consideration’” to planning recommendations (¶ 19).
  • Apple Hill II, 2021 VT 69, ¶ 31: distinguished § 248 from Act 250, emphasizing that land-conservation measures are entitled only to “due consideration,” not mandatory compliance.
  • Acorn Energy Solar 2, 2021 VT 3, ¶ 92: confirmed that under § 248(b)(1) the PUC must consider, but not necessarily enforce, town plan provisions.

The neighbors asked the Court to adopt an older civil-procedure usage of “due consideration” from Hoyt v. Smith, 83 Vt. 412, 76 A. 107 (1910), arguing that it required the PUC to give town plan measures determinative effect as part of the “proper course of procedure” (¶¶ 25–27). The Court rejected this analogy, noting that:

  • Hoyt concerned amendment of a writ—a procedural defect in judicial process—not substantive land-use constraints in § 248 proceedings (¶¶ 26–28).
  • The Legislature has repeatedly amended § 248 to enhance municipal input—e.g., the 2015 solar siting reforms—but has not redefined “due consideration” or overruled the advisory-not-controlling line of cases (¶ 22).

Thus, the Court reaffirmed that “due consideration” under § 248(b)(1) means:

  • The PUC must seriously review and engage with town and regional plans, especially land-conservation measures;
  • But those measures do not have veto power over projects, and noncompliance with them is not dispositive (¶¶ 23–24, 31).

3. Substantial Deference vs. Due Consideration

The decision also underscores the distinction between “due consideration” and “substantial deference,” introduced legislatively in response to municipal concerns over solar siting (¶ 22). Under § 248(b)(1)(C):

  • If a regional plan has an affirmative energy compliance determination under 24 V.S.A. § 4352, the PUC must give its land-conservation measures “substantial deference.”
  • A town plan within such a region gets “substantial deference” only if it, too, has received an affirmative energy compliance determination from the regional commission (n.1, ¶ 24).
  • Absent such a determination, a town plan is entitled only to “due consideration” (¶ 24).

Here, the Two Rivers-Ottauquechee Regional Plan had received an affirmative determination of energy compliance; the Randolph Town Plan had not (¶ 24). Thus:

  • The Regional Plan’s energy-related land-conservation measures were entitled to “substantial deference.”
  • The Town Plan’s slope prohibition was entitled only to “due consideration.”

This structural distinction is central to the Court’s conclusion that the slope prohibition in the Town Plan could not be treated as a dispositive legal bar to the project.

4. Act 250, § 248(b)(5), and ANR’s Role

Section 248(b)(5) incorporates numerous Act 250 criteria, including:

  • 10 V.S.A. § 6086(a)(4): requiring that a project “not cause unreasonable soil erosion or reduction in the capacity of the land to hold water so that a dangerous or unhealthy condition may result” (¶ 4).

Act 250 enforcement authority is split between:

  • the Land Use Review Board (LURB, successor to the Natural Resources Board), and
  • the Agency of Natural Resources (ANR) (¶ 40 & n.6).

ANR is statutorily charged with implementing stormwater rules under 10 V.S.A. § 1264, including defining and applying “impervious surface” for permitting purposes (¶ 42). The Court applied its usual framework for deference to ANR interpretations of technical terms:

  • Where the term is within ANR’s expertise or defined through complex methodologies, or where ANR is expressly authorized to provide guidance, its interpretation will be given deference unless arbitrary or inconsistent with statute (¶ 42).

5. Rule 5.100 and Preferred Sites

PUC Rule 5.100 governs net-metering systems. Projects between 150 and 500 kW generally must be located on “preferred sites” (¶ 5). Rule 5.103(7) defines various categories of preferred sites, including those identified through a joint action by:

  • the municipal legislative body,
  • the municipal planning commission, and
  • the regional planning commission,

acting consistently with their respective plans. The 2017 amendments to Rule 5.100 were specifically intended to give towns a more flexible, streamlined mechanism to identify preferred sites without having to amend town plans—a process that can be time-consuming and infrequent (¶ 5).

In this case, the Town and Regional Commission initially issued a joint preferred-site letter (¶ 7), then conditioned their continued support on the slope and final plan conditions (¶ 8). The PUC ultimately accepted the Town’s January 2024 letter as confirming that those conditions had been satisfied (¶ 11).

B. The Court’s Legal Reasoning

1. Orderly Development and “Due Consideration”

a. Neighbors’ Arguments

The neighbors argued that:

  • The PUC failed to give “due consideration” to the Town Plan’s prohibition on energy development on slopes greater than 25%, which they characterized as a key land-conservation measure (¶ 18).
  • “Due consideration” should be interpreted (in light of Hoyt) as requiring the PUC to treat noncompliance with such a measure as determinative, lest the phrase become superfluous (¶ 25).
  • The applicant’s filing under former Rule 5.107(C)(8) was deficient because it did not:
    • include the Regional Plan’s suitability map, and
    • explicitly acknowledge the project’s inconsistency with the Town’s 25% slope prohibition (¶ 31).
  • The project would have a “substantial regional impact” by threatening public water supplies and exacerbating flood risk, contrary to the Regional Plan’s criteria (¶¶ 34–35).
b. Court’s Response on the Meaning of Due Consideration

The Court reaffirmed its prior precedents and declined to adopt the neighbors’ proposed reading:

  • “Due consideration” does not require “strict adherence” to town or regional plans (¶ 19); those plans are advisory, not controlling, in § 248 proceedings (¶¶ 20–23).
  • The Town Plan, lacking an affirmative energy compliance determination, was entitled only to due consideration (¶ 24).
  • The PUC properly:
    • recognized the slope prohibition as a land-conservation measure;
    • weighed it against other evidence, including the localized nature of impacts and regulatory controls; and
    • nonetheless concluded the project did not unduly interfere with orderly development (¶¶ 24, 33–37).

The Court expressly rejected the neighbors’ attempt to use Hoyt v. Smith to redefine “due consideration” (¶¶ 25–28):

  • Hoyt concerned the phrase “upon due consideration” in a writ; the Court construed it there as “consideration in proper course of procedure”—a procedural context not analogous to substantive siting decisions.
  • Later cases citing Hoyt relate to amendment of process defects, not land-conservation measures in § 248 (¶ 28).

Accordingly, the Court continued to treat plan provisions as “guidance,” not “prerequisites,” except where the Legislature has specifically required “substantial deference” (¶ 23).

c. Adequacy of Evidence and Rule 5.107(C)(8)

Former Rule 5.107(C)(8) required applicants to submit:

  • relevant sections of town and regional plans, and
  • testimony describing how the project complies or is inconsistent with land-conservation measures (¶ 29).

Although the applicant did not provide full copies of the plans or a suitability map, it submitted an “Aesthetics and Orderly Development Report” with:

  • quotations from the Town and Regional Plans,
  • analysis of compatibility with their goals and policies, and
  • reliance on the joint preferred-site designation (¶ 30).

The Court held this record was sufficient for the PUC to make findings on orderly development:

  • The absence of certain documents (e.g., the Regional Plan suitability map) did not render the PUC’s findings “clearly erroneous” (¶ 33).
  • The PUC’s findings need not address every piece of potential evidence; it is enough that they be supported by the record (¶¶ 32–33).
d. Regional Impact vs. Undue Interference

On the “regional impact” claim, the Court stressed two points:

  • Even if a project has substantial regional impact, that does not automatically mean it “unduly” interferes with orderly development (¶ 34, citing UPC Vermont Wind).
  • The PUC explicitly considered potential impacts on “floodways, streams, wetlands, and soil erosion” and concluded that:
    • the impacts would be localized, and
    • ANR’s stormwater permit and related measures would adequately control risk (¶ 36).

The neighbors essentially asked the Supreme Court to reweigh the evidence; the Court declined, reiterating that weighing evidence and assessing credibility is the PUC’s role, not the Court’s (¶ 37).

2. Soil Erosion, Water Pollution, and ANR Deference

a. Alleged Conflation of ANR Permit with § 248(b)(5) Compliance

Neighbors argued that the PUC improperly equated ANR’s issuance of a construction stormwater permit with satisfying § 248(b)(5) and § 6086(a)(4) (¶ 38). They emphasized that:

  • The Land Use Review Board (LURB) makes independent Act 250 findings and does not simply defer to ANR.
  • By incorporating § 6086(a)(4) into § 248(b)(5), the Legislature required the PUC to conduct its own site-specific analysis, rather than relying on ANR’s permit (¶ 39).

The Court rejected this argument for two reasons:

  • Act 250 enforcement is a “joint venture” of ANR and the LURB; ANR’s determinations are a central part of the Act 250/§ 6086 framework (¶ 40).
  • The record showed the PUC did more than simply note the existence of ANR’s permit; it considered:
    • the EPSC Standards,
    • the Low-Risk Site Handbook, and
    • the specific project design and commitments to those practices (¶¶ 13–14, 41).

The Court emphasized (consistent with prior § 248 cases) that tests imported from Act 250 “may apply differently in the § 248 context” (¶ 40 & citation to Apple Hill II), given that § 248 proceedings are “legislative, policy-making” in nature, and the PUC has its own specialized role.

b. Post-Construction Erosion Concerns

Neighbors also argued that ANR’s construction permit only addressed erosion during construction, not post-construction stormwater impacts (¶ 41). The Court noted that:

  • The Low-Risk Site Handbook, incorporated by reference into ANR’s permit, includes permanent, post-construction stormwater control measures (¶ 13, 41).
  • The PUC explicitly considered these measures and the applicant’s commitment to comply, and made an informed soil-erosion finding under § 6086(a)(4) (¶ 41).

Thus, the PUC’s analysis covered both construction and operational phases.

c. Impervious Surface and Solar Panels

A central technical dispute concerned how to calculate “impervious surface” for purposes of stormwater permitting. Under 10 V.S.A. § 1264:

  • “Impervious surface” means “manmade surfaces, including paved and unpaved roads, parking areas, roofs, driveways, and walkways, from which precipitation runs off rather than infiltrates.”
  • ANR is tasked with implementing stormwater rules, including applying this definition (¶ 42).

ANR explained its practice for solar arrays:

  • Only the base or foundation of the panel that directly blocks infiltration is counted as impervious.
  • The elevated panel surface itself does not count, because water can reach vegetation beneath; the panel changes timing and distribution but does not necessarily prevent infiltration (¶ 43).

Neighbors argued that, because solar panels are “manmade surfaces,” the entire panel surface should count as impervious (¶ 44). The Court deferred to ANR’s interpretation:

  • ANR’s approach is consistent with § 1264(b)(6)’s logic: roads, roofs, and walkways block immediate infiltration; the relevant question is whether precipitation “runs off rather than infiltrates” (¶ 45).
  • Elevated panels may delay precipitation but, if vegetation below remains capable of absorption, they do not function like a roof or pavement.
  • ANR has specialized expertise in hydrology and stormwater management, and the Legislature expressly authorized it to implement § 1264 (¶ 42).

The Court therefore upheld the PUC’s reliance on ANR’s impervious-surface calculation.

d. ANR Filings as Evidence

Neighbors further contended that ANR had provided only argument, not evidence, in response to the hearing officer’s request for additional information on erosion and stormwater (¶ 38, 46). The record, however, showed that:

  • ANR filed a post-hearing brief and attached:
    • the applicant’s notice of intent under the construction stormwater permit,
    • the project site plan, and
    • the Low-Risk Site Handbook (¶ 46).
  • ANR specifically asked the PUC to take official notice of these documents as judicially cognizable facts under 3 V.S.A. § 810(4).
  • No party objected; the hearing officer granted the request (¶ 46).

The Court concluded that these materials were properly treated as part of the evidentiary record and that neighbors’ disagreement with their weight or responsiveness did not establish clear error (¶ 47).

3. Preferred Site Determination Under Rule 5.103

a. The Hearing Officer’s Concern vs. the PUC’s Approach

The crux of the preferred-site issue was methodological:

  • The Town’s conditioned support required that no panels be placed on slopes greater than 25% and that the final site plan be provided to the Town and neighbors (¶ 8).
  • The applicant produced multiple site plans based on different data sources (LiDAR, limited ground survey), leading to uncertainties about whether some areas slightly exceeded 25% slope (¶ 9 & n.3).
  • The hearing officer viewed this unresolved measurement issue as inconsistent with Rule 5.103 and recommended denying the CPG (¶ 9).

The PUC rejected that recommendation, reasoning that:

  • The key question for preferred-site status is whether the municipal actors—the Selectboard and Planning Commission—remain satisfied that their conditions have been met (¶ 10).
  • Absent “extraordinary circumstances,” the PUC would “not second-guess a municipal determination that a site is preferred” (¶ 10).
  • On remand, the applicant’s burden was to provide evidence that the Town was satisfied; the January 2024 letter accomplished that (¶¶ 10–11, 51).

The Supreme Court endorsed this approach:

  • Interpretation of Rule 5.103 lies within the PUC’s expertise, and courts give “great weight” to such interpretations unless unjust, unreasonable, or inconsistent with statute (¶ 49).
  • The purpose of the “preferred site” mechanism is to give municipalities more flexible, efficient control over siting than formal plan amendments; taking the Town’s explicit confirmation at face value is consistent with that purpose (¶ 52, referencing the 2017 report cited at ¶ 5).
b. Burden of Proof and Role of the Town

Neighbors asserted that the PUC improperly shifted the burden onto the Town to prove its own conditions were satisfied (¶ 51). The Court disagreed:

  • The PUC’s remand order explicitly placed the burden on the applicant to submit evidence that the Town was satisfied (¶ 51).
  • The applicant did so by obtaining and submitting the Town’s January 2024 letter.
  • The Town was not an intervenor and had no obligation to appear; nonetheless, it was the entity best positioned to declare whether its conditions had been met (¶ 51).

Nothing in the record suggested that the Town was misled, coerced, or unaware of the slope-measurement controversy. The Town could have required LiDAR or specific survey standards but chose instead to require “a survey” and the final plan. The Court refused to recast that municipal choice or to require the PUC to re-open the technical question once the Town had spoken (¶ 50).

c. Significance of “Extraordinary Circumstances” Language

While the phrase “absent extraordinary circumstances we will not second-guess a municipal determination that a site is preferred” comes from the PUC’s order (¶ 10), the Supreme Court’s affirmance effectively blesses that approach. The Court’s reasoning suggests:

  • In the typical case, once a municipality and its planning bodies jointly identify a preferred site under Rule 5.103 and later confirm their satisfaction with any conditions they have imposed, the PUC may rely on that determination.
  • Only in unusual situations—e.g., evidence of bad faith, clear misinterpretation of the rule, or statutory inconsistency—might the PUC be obligated to override or disregard a municipal preferred-site designation.

This significantly clarifies the division of labor: municipalities control the political and planning judgment of whether a particular parcel is “preferred”; the PUC retains ultimate authority over statewide energy and environmental criteria but will not second-guess local siting preferences where statutory criteria are otherwise satisfied.

C. Impact and Future Implications

1. Municipal Power in § 248 Proceedings: Still Limited

Despite legislative efforts since 2015 to expand municipal influence over solar siting, this decision confirms that:

  • Town plans without an affirmative § 4352 energy compliance finding retain advisory status under § 248(b)(1).
  • Even “clear, written land-conservation measures” such as slope prohibitions “do not present an insurmountable obstacle” to CPG approval (¶ 23, citing Apple Hill II).

Municipalities therefore have two principal legal tools:

  1. Seek an affirmative energy compliance determination for their plans to secure “substantial deference” for land-conservation measures; and
  2. Use the preferred-site mechanisms under Rule 5.103 to steer net-metered development to preferred locations.

But they do not have a unilateral veto over § 248 projects simply by adopting restrictive plan language, especially where those plans lack energy compliance approval.

2. Strengthening of Preferred-Site Letters as a Planning Tool

The case elevates the legal weight and practical importance of preferred-site designations:

  • The PUC will generally respect such designations, especially when reaffirmed in light of specific conditions or controversies (¶¶ 10–11, 48–52).
  • Towns can attach tailored conditions (e.g., slope limitations, screening requirements) to their support; if they later confirm those conditions are met, that confirmation will ordinarily be decisive for preferred-site status.
  • Neighbors opposing a project will face an uphill battle if the town has explicitly reaffirmed its support in writing after considering their objections.

In effect, this decision encourages developers to work collaboratively with municipal officials early in the process to secure and, if necessary, refine preferred-site letters. It also encourages towns to be precise and thoughtful about the conditions they attach, knowing that they—not the PUC—will be the final arbiters of whether those conditions have been satisfied in the absence of extraordinary circumstances.

3. Deference to ANR and Technical Hydrology in Solar Cases

On stormwater and erosion, the decision confirms:

  • The PUC may rely heavily on ANR’s technical determinations and regulatory frameworks (e.g., General Permit 3-9020, EPSC Standards, Low-Risk Handbook) to satisfy § 6086(a)(4) within § 248(b)(5).
  • ANR’s interpretation of technical terms like “impervious surface” will typically control, so long as it is consistent with statutory text and not arbitrary (¶¶ 42–46).
  • Opponents who disagree with ANR’s methods need to present countervailing evidence or expert testimony; mere argument about statutory wording is unlikely to prevail where the agency’s interpretation aligns with hydrologic realities and statutory purpose.

For future solar projects on sloped terrain or near sensitive waters, this means:

  • Securing appropriate ANR permits and complying with recognized BMPs (best management practices) will substantially support a finding of no undue soil erosion or water pollution under § 248(b)(5).
  • Challengers must do more than cite worst-case scenarios; they must show why ANR’s permit conditions and control measures are inadequate for the specific site.

4. The Continuing Distinction Between Act 250 and § 248

Although § 248 incorporates many Act 250 criteria, the decision once again underscores that:

  • § 248 proceedings are not simply Act 250 by another name; they are “legislative, policy-making” in character and involve different institutional roles (¶ 16, citing UPC Vermont Wind).
  • The PUC’s job is not to replicate an Act 250-style, criterion-by-criterion adjudication, but to consider Act 250 standards as part of a broader, statewide public-good determination (¶¶ 40–41).

Thus, Act 250 case law will continue to inform but not rigidly dictate outcomes under § 248.

IV. Clarification of Key Legal Concepts

1. Certificate of Public Good (CPG)

A CPG is the central authorization required for many energy facilities in Vermont. Unlike local zoning permits, it is issued by the PUC and is based on statewide criteria designed to ensure that a project promotes “the general good of the State.” It preempts conflicting local zoning and certain other local controls, though municipalities retain advisory roles through plans and testimony.

2. “Orderly Development of the Region”

Under § 248(b)(1), the PUC must ensure that a project “will not unduly interfere with the orderly development of the region.” This involves:

  • Reviewing regional and town plans;
  • Considering municipal and regional recommendations;
  • Evaluating whether impacts are localized or regional, and whether they are mitigated by conditions; and
  • Balancing energy and infrastructure needs against land-use and conservation concerns.

“Unduly interfere” does not mean “any conflict.” Rather, it requires a judgment that interference is excessive or inappropriate in context.

3. “Due Consideration” vs. “Substantial Deference”

  • Due Consideration:
    • The PUC must seriously review the content of plans and recommendations.
    • It may depart from them where justified by other evidence and statewide policy.
    • Town plans without energy compliance determinations fall in this category.
  • Substantial Deference:
    • Applies only to land-conservation measures in plans that have been certified as energy-compliant under 24 V.S.A. § 4352.
    • Requires the PUC to follow those measures unless there is a clear demonstration that doing so would be inconsistent with the broader public good or other statutory requirements.

4. Preferred Site under Rule 5.103

A “preferred site” is a location that, by rule or designation, is considered especially suitable for net-metered solar development. Common categories include:

  • Previously developed or disturbed sites;
  • Landfills, gravel pits, or brownfields;
  • Locations specifically designated by joint municipal–regional action as preferred.

For mid-sized net-metered projects (150–500 kW), being on a preferred site can be a prerequisite to eligibility and/or can affect rate treatment, regulatory scrutiny, and likelihood of approval.

5. Impervious Surface

“Impervious surface” is a hydrologic concept crucial for stormwater management. It refers to surfaces that:

  • Are manmade, and
  • Prevent precipitation from soaking into the ground beneath, causing it to run off instead.

Examples include paved and unpaved roads, parking lots, roofs, and similar structures. For solar:

  • If panels are elevated above vegetated ground and do not seal the surface, only the supporting footings or foundations count as impervious area.

6. Soil Erosion under § 6086(a)(4)

Act 250 Criterion 4, incorporated into § 248(b)(5), asks whether a project will:

  • Cause “unreasonable soil erosion,” or
  • Reduce the land’s capacity to hold water so much that dangerous or unhealthy conditions could result.

“Unreasonable” erosion depends on:

  • Site characteristics (e.g., slope, soil type);
  • Design (e.g., access roads, grading);
  • Control measures (e.g., silt fences, stabilized outlets, vegetation); and
  • Regulatory oversight (e.g., ANR permits and standards).

Compliance with ANR’s erosion and sediment control standards is a strong, though not absolutely conclusive, indication that erosion will not be unreasonable.

V. Conclusion

In re Petition of Randolph Davis Solar LLC reaffirms and clarifies several core tenets of Vermont’s energy siting law:

  • Town plans, absent an affirmative energy compliance determination, receive “due consideration,” not veto authority, in § 248 proceedings—even when they contain clear prohibitions such as slope limits.
  • “Preferred site” designations under Rule 5.103, when jointly issued and subsequently reaffirmed by local and regional entities, will be honored by the PUC absent extraordinary circumstances.
  • The PUC may appropriately rely on ANR’s permits, technical guidance, and definitions (such as the treatment of impervious surface for solar arrays) when applying § 248(b)(5) and § 6086(a)(4).
  • The Supreme Court will continue to give “great deference” to the PUC’s factfinding and to its application of its own rules, intervening only where findings lack record support or interpretations exceed statutory authority.

For project developers, the decision underscores the importance of:

  • Early engagement with municipalities to secure and, if necessary, condition preferred-site designations;
  • Thorough compliance with ANR’s stormwater and erosion-control standards; and
  • Building a record that squarely addresses plan provisions and regional impacts.

For municipalities and opponents, it clarifies that:

  • The most effective levers of influence are: (a) obtaining energy-compliant plans entitled to substantial deference, and (b) using the preferred-site process strategically.
  • Generalized concerns or strict plan language will not, by themselves, override a project that otherwise satisfies § 248 standards and regulatory controls.

In the broader legal context, the case strengthens the framework established in City of South Burlington and its progeny: statewide energy planning remains centralized in the PUC and coordinated agencies, with municipalities granted meaningful, but ultimately non-controlling, roles in guiding how and where renewable energy infrastructure is built.

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