In re Petition of Apple Hill Solar 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.

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

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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

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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.

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 ¶ 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.”
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 ¶ 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.
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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

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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

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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.
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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
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 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).
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 ¶ 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.
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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

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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

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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

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