In re Petition of LK Holdings, LLC

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.
2018 VT 109
No. 2017-343
In re Petition of LK Holdings, LLC Supreme Court
On Appeal from
Public Utility Commission
April Term, 2018
James Volz, Chair
Gerald R. Tarrant and Ryan P. Kane of Tarrant, Gillies & Richards, Montpelier, for Appellant.
Stephanie B. Hoffman, Special Counsel, Montpelier, for Appellee Public Service Department.
Cindy Ellen Hill of Hill Attorney PLLC, Middlebury, for Intervenor/Appellee Matthew Daniels,
and Adam Lougee, Middlebury, for Intervenor/Appellees Town of Whiting and Addison
County Reginal Planning Commission.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. SKOGLUND, J. Applicant LK Holdings LLC appeals the Public Utility
Commission’s dismissal of its application for a certificate of public good for a proposed group net-
metered photovoltaic electric power system.1 The Commission dismissed the petition as
incomplete because applicant failed to provide notice to adjoining landowners that its application
had been filed. We affirm.
1
Prior to July 1, 2017, the Public Utility Commission was known as the Public Service
Board. See 2017, No. 53, § 9. For clarity, we will refer to it as the Commission throughout this
opinion.
I. Facts
¶ 2. On June 16, 2016, applicant notified state, regional, and municipal entities as well
as adjoining landowners of its intent to seek a certificate of public good (CPG) to construct and
operate a 500-kilowatt solar photovoltaic group net-metered system2 in Whiting, Vermont. On
December 9, 2016, applicant filed its CPG application with the Commission. The application
certified that notice of the filing had been provided to adjoining landowners as required by
Commission rule. See Regulations Pertaining to Construction and Operation of Net Metering
Systems § 5.110(C) [hereinafter Former Rule 5.100], http://puc.vermont.gov/sites/psbnew/files/
doc_library/5100-PUC-nm-adopted-2013_0.pdf [https://perma.cc/NA8X-85P8] (requiring that
upon filing of CPG application, applicant must notify state and local authorities and “shall also
provide notice to . . . the landowners of record of property adjoining the project site(s) that the
application has been filed with the Commission”). However, applicant did not actually provide
notice of the filing to any of the adjoining landowners at that time.
¶ 3. In a December 16, 2016 memorandum, the Commission directed applicant to
submit information concerning the project’s compliance with any municipal bylaws or ordinances
that contained screening requirements “to complete its application for the [Commission’s]
review.” The Commission stated that it would begin its review of the project upon receipt of the
requested information and indicated that any comments on the application were due no later than
twenty-one days after the requested information was filed. The Commission sent its memorandum
to all interested persons and entities on the service list for the docket, including the adjoining
landowners.
2
For an explanation of net-metering systems and the history of the net-metering program,
see In re New Haven GLC Solar, LLC, 2017 VT 72, ¶¶ 2-4, __Vt.__, 175 A.3d 1211.
2
¶ 4. Applicant filed the requested supplemental information on December 23, 2016.
Over the next several weeks, the Division for Historic Preservation, the Agency of Natural
Resources, and the Department of Public Service filed comments regarding the application, and
the Addison County Regional Planning Commission and the Town of Whiting moved to intervene
and requested a hearing on orderly development and aesthetics. In its letter to the Commission,
the Department noted that two appendices—maps and a photographic inventory—were missing
from the application, and asserted that such information was necessary for the Department to
complete its review.
¶ 5. On January 18, 2017, applicant filed a copy of its notice to adjoining landowners
that its CPG application had been filed. The notice is dated January 16, 2017; however, applicant
states in its brief that the notice was actually sent the following day. Applicant also filed the
missing appendices on January 18.
¶ 6. Adjoining landowner Matthew Daniels filed a motion to intervene on January 24,
2017. Three days later, Daniels, the Addison County Regional Planning Commission, and the
Town of Whiting filed a joint motion to dismiss the CPG application as incomplete because
applicant had failed to notify adjoining landowners and because the application was missing
critical information regarding orderly development and aesthetics.3
3
In its response to the motion to dismiss, the Department agreed that the application should
be dismissed if determined to be incomplete when filed. If the application was deemed complete,
the Department argued, the Commission should separately decide whether the December 9, 2016
application satisfied the requirement that applications be filed within 180 days of the advance
notice to interested parties. See Former Rule 5.100 § 5.110(C) (providing that if applicant did not
file “an application for the project, pursuant to the filing requirements below, within 180 days of
the date of the advance notice, the notice will be considered withdrawn”). On appeal, the parties
dispute whether dismissal would be appropriate under that rule. We need not address these
arguments because we affirm the Commission’s dismissal based on the lack of notice to
landowners. For the same reason, we find it unnecessary to address intervenors’ argument that the
missing appendices and other alleged defects rendered the application incomplete separate from
the lack of notice.
3
¶ 7. After soliciting comments from applicant and other parties regarding the motions,
the Commission granted the motion to dismiss on May 22, 2017. It ruled that the notice to
landowners and certification of such notice were a necessary part of a complete application, and
that applicant did not satisfy these requirements until January 18, 2017. It rejected applicant’s
argument that the Commission’s December 16, 2016 memorandum cured the lack of notice
because the rule placed the onus on the applicant to notify the landowners and the December 16
memorandum did not give notice of a complete application. The Commission therefore dismissed
the application without prejudice to refiling under the revised net-metering rule that took effect on
January 1, 2017.
¶ 8. Applicant filed a motion to reconsider the dismissal, which the Commission denied.
This appeal followed.
II. Standard of Review
¶ 9. Like the recent case of In re Stowe Cady Hill Solar, LLC, this appeal requires us to
review the Commission’s interpretation of its own completeness rule, a rule that is both substantive
and procedural. 2018 VT 3, ¶¶ 15-21, __Vt.__, 182 A.3d 53. In such cases, we will “defer to an
agency’s interpretation of its own regulation, as long as that interpretation is consistent with the
statute that authorized promulgation of the regulation in question” and is consistently applied. Id.
¶ 20. As discussed below, we hold that the Commission’s interpretation of its rules here was
consistent with statute and prior precedent, and is therefore entitled to deference.
III. Analysis
¶ 10. On appeal, applicant argues that the December 9, 2016 CPG application was
substantially complete despite the lack of notice to landowners because it contained testimony and
exhibits addressing all of the substantive CPG criteria. Because the application was substantially
complete when filed, applicant argues, applicant had a vested right to proceed under the 2016
4
version of the net-metering rule. Applicant further argues that even if the application was not
complete in December, the Commission’s rules should be construed to allow its January 18, 2017
curative filing to relate back to the original application filing date. Applicant also claims that
dismissal was an inappropriate remedy for the notice defect. Finally, applicant maintains that the
Commission erred in dismissing the application because the new net-metering program had not
yet been adopted through formal rulemaking. We address each argument in turn.
A. Completeness of December 9, 2016 CPG Application
¶ 11. A developer seeking to construct a net-metered electric power system in Vermont
must first obtain a CPG from the Commission. 30 V.S.A. § 231(a); id. § 248(a)(2); see New Haven
GLC Solar, 2017 VT 72, ¶¶ 2-4 (explaining net-metered systems and history of net-metering
program). Commission Rule 5.100, which was first promulgated in 2001, sets forth the standards
and procedures applicable to CPG applications for net-metering systems. Construction and
Operation of Net Metering Systems, Code of Vt. Rules 30 000 5100 [hereinafter Rule 5.100],
http://www.lexisnexis.com/hottopics/codeofvtrules/.
¶ 12. In 2014, the Legislature passed Act 99, which made significant changes to the net-
metering program that became effective on January 1, 2017. 2013, No. 99 (Adj. Sess.), § 2. Act
99 required the Commission to amend Rule 5.100 to conform with its provisions. Id. § 5(d)
(requiring Commission to adopt rules for revised net-metering program). Relevant here is the new
rule’s requirement that after January 1, 2017, ground-mounted solar projects over 150 kilowatts in
capacity could only be constructed on “preferred sites.” Rule 5.100 §§ 5.103, 5.104; Cady Hill,
2018 VT 3, ¶ 4. Former Rule 5.100 did not contain this requirement. The Department of Public
Service asserts, and applicant does not dispute, that applicant’s proposed net-metering system
would not qualify for a CPG under the new rule because it is not proposed to be constructed on a
preferred site.
5
¶ 13. However, new Rule 5.100 also provides that “[a]ny complete CPG application filed
prior to January 1, 2017, shall be reviewed pursuant to the version of Rule 5.100 that was in effect
at the time the complete application was filed.” Rule 5.100 § 5.125(B); see also 2013, No. 99
(Adj. Sess.), § 10(f) (“30 V.S.A. § 219a and rules adopted under that section shall govern
applications for net metering systems filed prior to January 1, 2017.”). In other words, an
application that was filed prior to January 1, 2017 and was complete when filed “can qualify for a
CPG if it meets the criteria of the old rule even if it would not qualify under the new rule.” Cady
Hill, 2018 VT 3, ¶ 5. The viability of applicant’s proposed project accordingly depends on whether
its December 2016 CPG application was complete when filed, entitling applicant to consideration
under the former rule.
¶ 14. Under the pre-2017 net-metering program, two related rules guided the
Commission’s determination of the completeness of an application. See id. ¶ 6 (applying pre-2017
rules for determining completeness of application filed in December 2016). Former Rule 5.100
provided that upon receiving a CPG application for a net-metering system,
Commission staff will review the application for completeness. If
the application does not substantially comply with the application
requirements set forth herein, the Clerk of the Commission will
inform the applicant of the deficiencies. Upon submission of all
information necessary to address the deficiencies, the Clerk of the
Commission shall notify the applicant that the filing is complete.
Former Rule 5.100 § 5.110(C). A separate procedural rule, Rule 2.208, stated:
Substantially defective or insufficient filings may be rejected by
the Commission, provided, that if it will not unreasonably delay any
proceeding nor unreasonably adversely affect the rights of any party,
the Commission shall allow a reasonable opportunity to a party to
cure any defect or insufficiency. A filing which is found to be
defective or insufficient shall not be deemed to have been cured until
the date on which the last document is filed which removes the
defect or makes the filing complete. A filing is substantially
insufficient if, inter alia, it fails to include all material information
required by statute or rule.
6
Rules of Practice § 2.208, Code of Vt. Rules 30 000 2000 [hereinafter Rule 2.208],
http://lexisnexis.com/hottopics/codeofvtrules/.4
¶ 15. We recently considered the Commission’s interpretation of its completeness rule in
In re Stowe Cady Hill Solar, LLC, a case with similar but not identical facts to this one. 2018 VT
3. In November 2016, developer Cady Hill notified all required parties, including adjoining
landowners, of its intent to seek a CPG for a 496-kilowatt net-metering system in Stowe. On
December 30, 2016, Cady Hill filed its CPG application and simultaneously provided notice of the
filing to all but two of the adjoining landowners. Cady Hill did not cure the error until January 4,
2017, when one of the missing landowners inquired about the status of the application. The
Commission subsequently dismissed the application on the ground that it was incomplete at the
time of filing due to the failure to notify the two landowners. Id. ¶ 13.
¶ 16. We reversed, holding that the Commission’s decision was inconsistent with its own
previous application of the completeness rule in In re Seneca Mountain Wind, LLC (Seneca I),
No. 7867, 2012 WL 3637613 (Vt. Pub. Serv. Bd. Aug. 15, 2012) and In re Seneca Mountain Wind,
LLC (Seneca II), No. 7867, 2013 WL 4398965 (Vt. Pub. Serv. Bd. Aug. 9, 2013). 2018 VT 3,
¶¶ 22-23. Because these decisions are also relevant to this appeal, we review them briefly.
¶ 17. In Seneca I, the developer applied for a CPG in April 2012 to install four temporary
meteorological towers in the towns of Brighton, Ferdinand, and Newark. By Commission order,
the developer was required to provide thirty days’ advance written notice to adjoining landowners
of its intent to file the application. After the formal public comment period was over, two adjoining
landowners filed letters with the Commission’s hearing officer asserting that they did not receive
notice regarding the application. The issue of first impression raised by the landowners was
4
Rule 2.208 is a general rule of procedure and was not amended in response to the 2014
legislative changes to the net-metering program. The quoted language remained the same during
the time period relevant to this case.
7
whether the developer was required to give notice only to those landowners abutting the specific
tract of leased land upon which the project was to be built, or to all landowners abutting the full
collection of contiguous tracts leased by the developer in connection with the project. The hearing
officer concluded that it was the developer’s collective leasehold interests that defined the
boundaries of the project property, not the specific boundaries of the individual leased tract on
which it was to be built. 2012 WL 3637613, at *5. Because the developer had not provided
advance notice on that basis, the hearing officer suspended the proceedings to give the developer
time to cure the defect by submitting a revised adjoiners map, providing notice to all owners of
property adjoining all contiguous property leased by the developers who had not yet received
proper notice, and submitting a revised list of adjoiners who received notice. Id. The hearing
officer placed on the developer the burden of identifying any additional adjoining landowners
entitled to notice on the basis of its ruling. Id. at *5-6.
¶ 18. The developer subsequently provided the required notice to a significant number of
newly identified adjoining landowners on August 23, 2012, and the hearing officer deemed the
application to be complete as of that date. Seneca II, 2013 WL 4398965, at *31. However, the
developer failed to notify two other adjoining landowners who were entitled to notice under the
hearing officer’s interpretation of the project boundaries until November 2012. Id.
¶ 19. In Seneca II, an intervenor argued to the Commission that the application was not
complete until December 2012, or thirty days after the two newly identified landowners received
notice. The timing of the completeness of the developer’s application was important because in
September 2012, while the application was pending, the Town of Newark had revised its town
plan to expressly label the type of development proposed by the developer as “inappropriate and
inconsistent with the town’s vision and goals.” Id. at *36. The previous town plan did not contain
such language. For its part, the developer claimed that the application was complete when
8
originally filed in April 2012 because it contained all required substantive information, and any
notice failures did not render an otherwise complete application incomplete. Id. at *32.
¶ 20. The Commission rejected the developer’s argument that the application was
complete when originally filed with all of the required substantive information, noting that the
application form required an applicant to submit a list of the parties notified of the application as
part of the application process. It concluded that “an application is incomplete when the attendant
landowner list improperly omits as many landowners as were omitted in [developer’s] initial
[a]pplication.” Id. Adopting the developer’s position that defective notice did not affect the
completeness of the application would mean that “[t]he clock would start running on the
proceeding even if no adjoining landowners have received notice, thus eliminating any opportunity
to resolve any issues with the adjoining landowners through negotiation as opposed to litigation.”
Id. The Commission found that this would create unnecessary delays in the process and would
frustrate the legislative purpose of expeditiously processing CPG applications for meteorological
towers. Id.
¶ 21. However, the Commission agreed with the hearing officer’s determination that the
application was complete on August 23, 2012, “because as of that date, [the developer] had
substantially complied with the application requirements.” Id. at *34. Although two adjoining
landowners who should have received notice in August 2012 did not, the Commission nevertheless
affirmed the hearing officer’s conclusion that the developer had substantially complied with the
application requirements because by then the developer had provided copies of the application to
seventy different entities or persons, each of whom was given an opportunity to participate in the
proceeding. Id. at *35. Because the developer’s application was complete before the new town
plan was adopted, the Commission concluded that the previous town plan applied to the
proceeding. Id. at *39.
9
¶ 22. We observed in Cady Hill that “[w]ith respect to the notice requirement, [Seneca
II] turns on the relative proportion of those landowners who did not receive notice to the number
that [the developer] had correctly given notice.” 2018 VT 3, ¶ 25. Applying this principle, we
concluded that Cady Hill’s application was complete when filed because it substantially complied
with the application requirements. Id. ¶ 27. Cady Hill had provided advance notice to all of the
required adjoining landowners and the list of adjoining landowners submitted to the Commission
was complete and accurate. Further, “there [was] no dispute that Cady Hill provided
contemporaneous notice of its filing to the owners of eight of the nine adjoining parcels.” Id. We
reasoned that “[a]s in [Seneca II], on this record Cady Hill’s failure to provide contemporaneous
notice to two landowners who together owned a single adjoining parcel, when it otherwise fully
complied with all other application requirements, does not undermine the conclusion that its
application was substantially complete when filed.” Id. We therefore concluded that Cady Hill’s
application should be considered according to the pre-2017 version of Rule 5.100. Id. ¶ 29.
¶ 23. The facts of this case are significantly different from Cady Hill and compel a
different result. Here, applicant did not provide the required notice to any of the adjoining
landowners when it filed its application on December 9, 2016. See Former Rule 5.100 § 5.110(C)
(requiring applicant to notify adjoining landowners upon filing of application). Unlike Seneca II
and Cady Hill, but like Seneca I, in this case an entire class of individuals who were entitled to
notice of the filing did not receive it. This was a substantial defect in the application that applicant
did not cure until January 18, 2017. The Commission’s conclusion that the application was
incomplete under these circumstances is consistent with its prior precedent. See Seneca II, 2013
WL 4398965, at *32 (“[A]n application is incomplete when the attendant landowner list
improperly omits as many landowners as were omitted in [developer’s] initial [a]pplication.”);
Seneca I, 2012 WL 36637613, at *3 (deeming application incomplete where developer failed to
10
provide notice to landowners adjoining entire parcel of contiguous properties leased by developer);
see also In re Ludlow Driver Solar, LLC, 16-0067-NMP, 2017 WL 1373312, at *1 (Vt. Pub. Serv.
Bd. Feb. 23, 2017) (dismissing net-metering application filed in December 2016 where applicant
failed to provide forty-five-day advance notice or notice of filing to seven adjoining landowners).5
¶ 24. In re North Springfield Sustainable Energy Project LLC, cited by applicant, does
not dictate a different result. No. 7833, 2014 WL 580146 (Vt. Pub. Serv. Bd. Feb. 11, 2014). In
North Springfield, an intervenor opposing an applicant’s proposed wood-fired biomass electric
generating facility argued that the application was not completed until after certain amendments
to the substantive criteria of 30 V.S.A. § 248(b) took effect, and thus was subject to the new version
of the statute. The intervenor claimed the application was incomplete when filed because it lacked
a proposed power-purchase agreement, used a flawed feasibility study and economic model, did
not include a forest harvesting plan or a viable plan for eliminating chemicals from the boiler, and
failed to address appropriate ingress and egress from the site. Id. at *85. The Commission rejected
the intervenor’s argument, noting that the alleged defects were “really questions of whether [the
applicant] met its burden of persuasion at the time it filed the petition, and not questions regarding
the completeness of that petition.” Id. at *86. Notice was not at issue and the Commission did not
base its completeness determination on that factor. North Springfield is therefore not inconsistent
with this case.
5
We disagree with applicant’s contention that the decision below conflicts with New
Haven GLC Solar, in which we stated that a developer’s application was complete on the date it
filed its amended site plan, even though the developer had not yet given notice of its application
to one adjoining property owner identified in that site plan. 2017 VT 72, ¶ 21. In New Haven
GLC Solar, like Cady Hill and Seneca II, almost all of the adjoining landowners had already
received the proper notice required by rule. Id. ¶ 7. The facts of this case are significantly different.
Moreover, we did not resolve New Haven GLC Solar on the basis of notice, instead reasoning that
the Commission should have accepted the Town of New Haven’s comments because they were
filed within the proper time for responding to the developer’s amended site plan. Id. ¶ 21. Thus,
New Haven GLC Solar is of limited precedential value in this case.
11
¶ 25. We reject applicant’s argument that under Former Rule 5.100, a failure to provide
required notice to adjoining landowners could not render an application incomplete if the
application included sufficient information to address all of the rule’s substantive criteria. The
rule stated in relevant part that upon receipt of an application, Commission staff would review the
application for deficiencies and notify the applicant “[i]f the application does not substantially
comply with the application requirements set forth herein.” Former Rule 5.100 § 5.110(C). Notice
to landowners was one of the application requirements. Moreover, this language must be read in
conjunction with Rule 2.208, which states that “[a] filing is substantially insufficient if, inter alia,
it fails to include all material information required by statute or rule.” Rule 2.208 (emphasis
added). The inclusion of the phrase “inter alia,” which means “among other things,” meant that a
determination of incompleteness could be based on other defects in an application besides a failure
to include testimony or exhibits. Black’s Law Dictionary 932 (10th ed. 2014). Adopting
applicant’s interpretation would mean that a CPG proceeding could proceed indefinitely without
any adjoining landowners receiving notice, preventing them from seeking to intervene or comment
in a timely manner and likely delaying the process. The Commission rejected a similar argument
in Seneca II, finding that it would be contrary to the legislative intent of expediting § 246
proceedings. 2013 WL 4398965, at *32. Similarly, adopting applicant’s position here would
conflict with Commission precedent and the legislative intent of simplifying the process for net-
metering applications. See New Haven GLC Solar, 2017 VT 72, ¶ 16 (noting that net-metering
statute reflects legislative intent to create “a more streamlined process for reviewing relatively
small net-metering projects” such as applicant’s 500-kilowatt solar project).
¶ 26. Applicant also argues that the Commission’s determination that the application was
incomplete due to the notice defect conflicts with its December 16, 2016 memorandum, which
indicated that applicant only needed to file evidence of compliance with municipal screening
12
standards for the application to be considered complete. However, the original application
incorrectly certified that the adjoining landowners had received notice. The deficiency in notice
likely was not obvious to the Commission at the time it initially reviewed the application. The
Commission’s later determination that the application was incomplete was not unreasonable under
these circumstances.
¶ 27. Applicant notes that in zoning cases, inadequate notice does not necessarily
invalidate an application. See 24 V.S.A. § 4464(a)(5) (“No defect in the form or substance of any
[notice requirements] shall invalidate the action of the appropriate municipal panel where
reasonable efforts are made to provide adequate posting and notice.”). We decline applicant’s
invitation to apply this standard here. This is a CPG proceeding, not a zoning case, and 24 V.S.A.
§ 4464 does not control. The implications of a notice defect were adequately addressed by the
Commission rule, which set forth the notice requirements for an application and provided that an
application could be deemed incomplete if the requirements were not followed. Former Rule 5.100
§ 5.110(C). Moreover, even if § 4464 were applicable in this type of proceeding, it would be of
no help to applicant in this case because a total failure to timely provide notice does not constitute
“reasonable efforts.” See In re Mahar Conditional Use Permit, 2018 VT 20, ¶ 31, __Vt.__, 183
A.3d 1136 (“Where, as here, no notice is given, § 4464(a)(5) is inapplicable.”).
¶ 28. Our conclusion that the Commission was correct in deeming applicant’s December
9, 2016 application to be incomplete disposes of applicant’s related argument that it had a vested
right to proceed under the pre-2017 version of Rule 5.100. In the context of zoning cases, we have
held that an applicant’s rights vest “under the then existing regulations as of the time when proper
application is filed.” Smith v. Winhall Planning Commission, 140 Vt. 178, 181-83, 436 A.2d 760,
761-62 (1981) (emphasis added). Assuming this doctrine applies in proceedings before the
Commission, applicant failed to establish a vested right in Former Rule 5.100 by filing a proper
13
and complete application before January 1, 2017. See In re Ross, 151 Vt. 54, 58, 557 A.2d 490,
492 (1989) (affirming environmental court’s determination that developer’s permit application
under Act 250 was incomplete for purposes of establishing vested rights in then-existing law
because it sought review under only two of ten Act 250 criteria); cf. In re Jolley Associates, 2006
VT 132, ¶ 16, 181 Vt. 190, 915 A.2d 282 (holding that developer’s filing of completed zoning
application prior to change in applicable regulations gave developer vested right in laws in effect
at time of filing).
B. Whether Dismissal Was Appropriate
¶ 29. Applicant contends that even if its application was incomplete due to the lack of
notice to adjoining landowners, dismissal was an overly harsh remedy. Instead, it claims, the
Commission should have paused the proceedings and given the adjoining landowners additional
time to participate, as it has elsewhere.
¶ 30. We conclude that the Commission acted within its discretion to dismiss the
application under the facts of this case. As described above, applicant’s proposed project was
ineligible for a CPG under new Rule 5.100. Applicant failed to file a complete application prior
to the rule change, and therefore had no right to proceed under the former rule. Dismissal was
appropriate under the circumstances and was consistent with the Commission’s approach in similar
cases. See In re Southshire Cmty. Solar, LLC, NMP-6862, 2017 WL 1862360, at *1 (Vt. Pub.
Serv. Bd. Apr. 28, 2017) (dismissing CPG application for net-metering project filed on December
30, 2016 as incomplete because it failed to include elevation drawings required by rule); In re
Norwich Techs., Inc., 16-0114-NM, 2017 WL 1365080, at *1 (Vt. Pub. Serv. Bd. Mar. 10, 2017)
(dismissing CPG application for net-metering project filed in 2016 for failure to include site plan,
and rejecting cure filed after January 1, 2017); Ludlow Driver Solar, 2017 WL 1373312, at *1
14
(dismissing net-metering application filed in December 2016 where applicant failed to provide
forty-five-day advance notice or notice of filing to seven adjoining landowners).
¶ 31. The Commission’s decision in In re Swanton Wind, LLC does not contradict its
conclusion here. No. 8816, 2017 WL 1364802 (Vt. Pub. Serv. Bd. Mar. 2, 2017). In Swanton
Wind, the Commission declined to dismiss a developer’s CPG petition for a twenty-megawatt
wind project for failure to provide notice to two adjoining landowners. Id. at *3. The Commission
reasoned that the developer had promptly cured the lack of notice and the affected landowners had
ample time to decide whether to intervene. Id. Although the facts of Swanton Wind are
superficially similar to applicant’s situation, there is an essential difference: there is no indication
in Swanton Wind that a relevant intervening regulatory change had taken place such that the timing
of the application was at issue or that the Commission’s exercise of its discretion to allow a cure
created a vested right in a prior regulatory scheme. Swanton Wind is therefore not inconsistent
with this case, in which the timing of the application was crucial to its viability.6
C. Whether January 18, 2017 Notice Related Back to Filing Date of Application
¶ 32. Applicant further argues that even if the notice defect rendered its application
incomplete, the Commission should have treated its January 18, 2017 curative notice as relating
back to the original filing. This argument ignores the plain language of Commission Rule 2.208,
which provides that “[a] filing which is found to be defective or insufficient shall not be deemed
6
The other decisions cited by applicant are likewise inapposite, as neither involved an
intervening regulatory change. In re ER Thurston Farm Solar E., LLC, 16-0046-NMP, 2016 WL
6601070, at *1 (Vt. Pub. Serv. Bd. Oct. 31, 2016) (waiving 180-day filing requirement where no
party objected to delay and Department of Public Service advocated for site visit and additional
comment period instead of reissuing notice); In re Novus Montpelier Solar, LLC, 16-0021-NMP,
2016 WL 3077783, at *8 (Vt. Pub. Serv. Bd. May 26, 2016) (granting waiver of requirement that
application be filed within 180 days of advance notice where Commission temporarily suspended
consideration of net-metering projects after advance notice filed, because all adjoining landowners
and other required entities had received notice and opportunity to comment).
15
to have been cured until the date on which the last document is filed which removes the defect or
makes the filing complete.” Pursuant to this language, the Commission properly ruled that the
application was not complete until applicant finally provided notice to the adjoining landowners
on or about January 18, 2017.7
¶ 33. Applicant argues that if curative filings are not deemed to relate back to the original
filing, the opportunity to cure offered by Rule 2.208 is completely illusory. We disagree. In most
cases, the timing of a curative filing, and whether it relates back to the original filing, is irrelevant
to the viability of the application because no intervening regulatory change has taken place.
Allowing a cure in such cases is helpful to all parties because it obviates the need to relitigate the
entire application process from the beginning. It is only in rare cases such as this one, where the
curative filing must occur within a particular period to have effect, that the lack of a relation-back
provision may prejudice applicants. Rule 2.208’s failure to provide relief in every case does not
render it meaningless.
¶ 34. In the alternative, applicant argues that the Commission abused its discretion by
declining to waive Rule 2.208 as it did in In re Randolph Road Solar, LLC, No. 16-0091-NM,
2017 WL 4221956 (Vt. Pub. Serv. Bd. May 4, 2017). In that case, the Commission issued an order
on December 7, 2016, notifying the developer that its September 2016 net-metering CPG
application was incomplete and giving the developer thirty days to cure the defect. The developer
filed the missing materials on January 7, 2017. The Commission concluded that the application
should be processed under Former Rule 5.100, reasoning that “the normal application of Rule
2.208 in this case would result in the unintended consequence of depriving the [a]pplicant of the
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For this reason, we reject applicant’s argument that the notice defect was cured by the
Commission’s December 16, 2016 memorandum, which the Commission sent to all parties,
including adjoining landowners. Rule 2.208 makes clear that the defect was not cured until
applicant provided notice of the filing to the landowners on January 18, 2017.
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opportunity to cure its application within the time period that was expressly provided to the
[a]pplicant.” Id. at *2. It held that “[u]nder these unusual circumstances, where the [a]pplicant
acted reasonably in response to a [Commission] procedural order,” it would waive Rule 2.208 and
allow the curative filing to relate back to December 2017. Id. Randolph Road is the unique
exception that proves the rule: curative filings do not relate back to the date of filing under Rule
2.208. The Commission waived the rule in that case because it had previously given the developer
thirty days to cure the defect, and the developer had reasonably relied on its instructions. Here, by
contrast, there was no order regarding the notice defect—likely because the defect was not
apparent to the Commission until after January 1, 2017—and applicant cannot claim that it acted
in reasonable reliance on any representations by the Commission regarding the timeliness of a
cure. We therefore find no error in the Commission’s application of the rule as written.
D. Validity of Dismissal Under Revised Net-Metering Program
¶ 35. Finally, applicant argues that the Commission erred in dismissing its application
pursuant to a new regulatory framework that had not been adopted by rule. As noted above, Act
99 of 2014 directed the Commission to revise its net-metering rule. The Act provided that the
Commission would finally adopt rules for the net-metering program by July 1, 2016. 2013, No.
99 (Adj. Sess.), § 5(d)(5). However, it went on to state:
If the Board is unable to finally adopt the rules by July 1, 2016, the
Board may issue an order by that date establishing a revised net
metering program to take effect on January 1, 2017, if that order is
followed by final adoption of rules for this program within a
reasonable period.
Id. § 5(d)(5)(A).
¶ 36. As it happened, the Commission was not ready to adopt a final rule by the July 1,
2016, deadline, and accordingly issued an order on June 29, 2016, establishing the revised net-
metering program. After soliciting public comments on that order, the Commission issued an
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amended order on August 29, 2016, setting forth the proposed new Rule 5.100. This was the order
in effect during the period relevant to this case. The Commission subsequently began the formal
rulemaking process on October 15, 2016, by filing the proposed rule with the Secretary of State.
Rule 5.100 was finally adopted and became effective July 1, 2017.8 For purposes of this appeal,
there are no significant differences between the August 29, 2016 order and the final version of
Rule 5.100. See Pub. Serv. Bd., Annotated Adopted Rule 5.100 (2016),
http://puc.vermont.gov/document/annotated-adopted-rule-5100 [https://perma.cc/B9GK-3234]
(comparing August 29, 2016 order to final Rule 5.100).
¶ 37. Applicant argues that the new net-metering program had to be established through
formal rulemaking and the Commission’s August 29, 2016 order was therefore ineffective. It
points to the Vermont Administrative Procedure Act (VAPA), which requires an agency to initiate
formal rulemaking “[w]here due process or a statute directs an agency to adopt rules.” 3 V.S.A.
§ 831(a). A rule is an “agency statement of general applicability which implements, interprets, or
prescribes law or policy and which has been adopted in the manner provided by [the VAPA].” Id.
§ 801(b)(9). According to applicant, both Act 99 and due process required the Commission to
8
Applicant claims that “a reasonable period” means six months and suggests that the
Commission’s 2016 order establishing a revised net-metering program was invalid because new
Rule 5.100 was not finally adopted until nearly a year later. We disagree. If the Legislature had
intended to impose a specific timeline for final adoption of the rule following an order, it could
have done so explicitly. We presume that the Legislature acted advisedly in using more flexible
language. Further, interpreting Act 99 to impose such a limitation would render superfluous the
provision allowing the Commission to proceed temporarily by order. “Generally, we do not
construe a statute in a way that renders a significant part of it pure surplusage.” In re Lunde, 166
Vt. 167, 171, 688 A.2d 1312, 1315 (1997) (quotation omitted). The Commission completed formal
rulemaking by July 1, 2017, which was not an unreasonable amount of time given the major
changes to the net-metering program and the number of public comments received by the
Commission. See In re Revised Net-Metering Rule Pursuant to Act 99 of 2014, 2016 WL
3655534, at *1 (Vt. Pub. Serv. Bd. June 30, 2016) (noting that Commission received and reviewed
532 written comments from public in response to proposed rule).
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change the net-metering rule through the formal rulemaking process, and it could not do so through
an order.
¶ 38. Applicant is correct that Act 99 required the Commission to adopt a new net-
metering rule. 2013, No. 99 (Adj. Sess.), § 5(d)(5); see also 30 V.S.A. § 8010(c). However, it
also expressly authorized the Commission to proceed by order if the rulemaking process was not
completed by July 1, 2016. 2013, No. 99 (Adj. Sess.), § 5(d)(5)(A). We disagree with applicant’s
contention that the Legislature does not have the power to modify the requirements of the VAPA
in order to allow an orderly and expeditious transition to a new regulatory scheme, as it did here.
“It is the Legislature’s prerogative to establish the procedures governing the establishment of
agency policy of general applicability, just as it was the Legislature’s prerogative to give [the
Commission] discretion over [the net-metering program] in the first instance.” Parker v. Gorczyk,
173 Vt. 477, 480, 787 A.2d 494, 499 (2001). To the extent that there is a conflict between Act 99
and the VAPA, the more specific statute, that is, Act 99, controls. Town of Brattleboro v. Garfield,
2006 VT 56, ¶ 10, 180 Vt. 90, 904 A.2d 1157 (“We apply the long-standing rule of statutory
construction that where two statutes deal with the same subject matter, and one is general and the
other specific, the more specific statute controls.”).
¶ 39. We disagree with applicant’s contention that due process required formal
rulemaking. Although we have held that the VAPA, when it applies, provides sufficient process
to protect citizens’ rights, we have never held that the specific procedures set forth by the VAPA
are the only way to satisfy due process. See In re Diel, 158 Vt. 549, 554, 614 A.2d 1223, 1226
(1992) (declining to delineate exact procedures due process required when agency decided to
rescind policy change without notice because agency “action fell within the definition of
rulemaking under the APA, which provides procedures that adequately protect petitioners’
rights”). Applicant and other similarly situated persons and entities were provided with ample
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process here. The Commission held a series of eight public workshops, solicited multiple rounds
of public comments seeking input on the revised net-metering program, conducted two public
hearings, and revised the proposed rule several times in response to feedback it received. Revised
Net-Metering Rule, 2016 WL 3655534, at *1. In other words, the Commission provided notice of
the change and multiple opportunities for affected persons such as applicant to be heard, thereby
meeting the requirements of due process. Diel, 158 Vt. at 553, 614 A.2d at 1226 (noting that
provision of notice and opportunity to file statements of position, submissions of evidence and
other relevant observations during rulemaking process typically sufficient to satisfy due process
(citing United States v. Florida E. Coast Ry. Co., 410 U.S. 241-46 (1973))). We therefore see no
reason to disturb the decision below.
Affirmed.
FOR THE COURT:
Associate Justice
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