In Re Petition of Randolph Davis Solar LLC (Joan Allen and Michael Binder, Appellants)

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: Reporter@vtcourts.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.

2025 VT 63

No. 25-AP-005

In re Petition of Randolph Davis Solar LLC Supreme Court
(Joan Allen and Michael Binder, Appellants)
On Appeal from
Public Utility Commission

September Term, 2025

Edward McNamara, Chair

Joan Allen and Michael Binder, Pro Se, Randolph Center, Appellants.

Kimberly K. Hayden of Paul Frank + Collins P.C., Burlington, for Appellee Randolph Davis
Solar LLC.

Caroline Daniels, Special Counsel, Montpelier, for Appellee Vermont Department of Public
Service.

PRESENT: Reiber, C.J., Eaton, Cohen and Waples, JJ., and Corsones, Supr. J.,
Specially Assigned

¶ 1. REIBER, C.J. Neighbors Joan Allen and Michael Binder appeal the Public Utility

Commission’s (PUC) grant of a certificate of public good (CPG) to applicant Randolph Davis

Solar LLC to construct a solar-energy project in Randolph, Vermont. Neighbors argue the PUC

erroneously concluded the project: (A) would comply with 30 V.S.A. § 248(b)(1)’s orderly

development criteria; (B) would not cause unreasonable soil erosion under 30 V.S.A. § 248(b)(5);

and (C) qualified as a “preferred site” by misapplying PUC Rule 5.103. We conclude that the PUC

did not err in granting applicant a CPG and therefore affirm.
I. Legal Framework

¶ 2. Some background on the legal framework is helpful to understand the issues on

appeal. A company must apply for and obtain a CPG from the PUC before it may build an electric-

generation facility. 30 V.S.A. § 248(a)(2). To grant a CPG, the PUC must find that the facility

satisfies the criteria contained within § 248(b). These criteria include, as relevant here, the PUC’s

determinations that the proposed project will not interfere with the affected region’s orderly

development or have undue adverse impacts. Id. § 248(b)(1)-(5).

¶ 3. Under § 248(b)(1)’s orderly development criterion, the PUC must give due

consideration to the “recommendations of the municipal and regional planning

commissions . . . municipal legislative bodies, and the land conservation measures contained in

the plan of any affected municipality.” Id. § 248(b)(1). If an affected region’s or town’s plan has

“received an affirmative determination of energy compliance under 24 V.S.A. § 4352,”1 the PUC

must give that plan’s land-conservation measures “substantial deference.” Id. § 248(b)(1)(C).

Without an affirmative determination, the PUC must only give such measures due consideration.

In re Acorn Energy Solar 2, LLC, 2021 VT 3, ¶ 92, 214 Vt. 73, 251 A.3d 899 (rejecting argument

PUC had to determine if project complied with town plan because it only had to consider such

compliance under § 248(b)(1)).

¶ 4. Section 248(b)(5) requires that the project “will not have an undue adverse effect

on aesthetics, historic sites, air and water purity, the natural environment, the use of natural

resources, and the public health and safety” after the PUC gives due consideration to criteria within

1
A regional plan receives an affirmative determination of energy compliance only after
the regional planning commission submits it to the Commissioner of the Department of Public
Service, who then determines whether the regional plan satisfies certain statutory criteria. 24
V.S.A. § 4352. If a regional plan receives this determination, a municipal legislative body within
the region may submit its town plan to the regional planning commission. Id. Then, the regional
planning commission may issue an affirmative determination of energy compliance to the town
plan if it is both consistent with the regional plan and the statutory criteria within 24 V.S.A.
§ 4352(c).
2
10 V.S.A. §§ 1424a(d) and 6086(a)(1) through (8) and (9)(K). 30 V.S.A. § 248(b)(5). One of the

relevant criteria incorporated from 10 V.S.A. § 6086(a) is that the project must “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.” 10 V.S.A. § 6086(a)(4).

¶ 5. Finally, the PUC’s rules require net-metered systems with capacities ranging from

150 to 500 kW to be built on “preferred sites.” Construction and Operation of Net Metering

Systems § 5.103, Code of Vt. Rules 30 000 5100 [hereinafter Rule 5.100], http://www.lexisnexis

.com/hottopics/codeofvtrules. Rule 5.103 was amended to give towns more flexibility in

designating specific locations as preferred sites. Vt. Pub. Util. Comm’n, Report to the Vermont

General Assembly on the Net-Metering Program Pursuant to Act 99 of 2014, at 20-21 (Jan. 20,

2017), https://legislature.vermont.gov/Documents/2018/WorkGroups/House%20Energy%20

and%20Technology/New%20Net%20Metering%20Proposed%20Rules/W~Sarah%20

Hofmann~Net%20Metering%20-%20Final%20Report~1-31-2017.pdf [https://perma.cc/E558-

MCH4] (explaining town’s ability to designate preferred site beyond time-consuming town-plan

process). Accordingly, preferred sites include specific locations that a municipal legislative body

and municipal and regional planning commissions jointly determine are suitable for solar-facility

development consistent with their respective plans. Rule 5.100 § 5.103(7).

II. Background

¶ 6. In August 2021, applicant applied for a CPG from the PUC to construct a 500 kW

solar-energy project in Randolph, Vermont. Portions of the project’s infrastructure, such as its

access road and interconnection line, will be located on land that exceeds a 25% slope.

¶ 7. In June 2021, the Two Rivers-Ottauquechee Regional Commission (TRORC), the

Town of Randolph Planning Commission, and the Town of Randolph Selectboard executed a joint

letter in support of the project and expressed a desire for the PUC to designate the project site as a

3
“preferred site” under Rule 5.103.2 In October that same year, neighbors alerted the Town that the

project’s initial design conflicted with the Town Plan because it would have been located on slopes

exceeding a 25% grade. Because of this noncompliance, neighbors requested the Town rescind

the preferred-site letter. Shortly after, neighbors filed a motion to intervene that was granted.

¶ 8. The Town agreed with neighbors that some of the panels in the array appeared to

be located on slopes exceeding 25%. In its December 2021 letter, the Town conditioned its

continued support on no panels being built on slopes exceeding 25% and on the final site plan

being provided to the Town and neighbors. Applicant later modified its initial project plan to

remove the panels from slopes greater than 25% and assured the Town a survey would be

conducted to confirm no panels would be installed on such slopes.

¶ 9. Applicant created six site plans using different survey methods. In June 2023, the

hearing officer asserted that it was unclear whether the Town’s conditions were sufficiently

satisfied to designate the project site as “preferred” under Rule 5.103. The hearing officer

perceived a “lack of mutual understanding” between applicant and the Town as to what method of

measurement should be used for the site plan’s survey data. The hearing officer noted that the

measurement method could affect the average slope, and therefore whether panels would be on

slopes exceeding a 25% grade.3 The hearing officer reasoned this uncertainty was inconsistent

2
While the initial preferred-site letter is dated June 2020, the record shows the letter was
not issued until June 2021.
3
As the hearing officer explained, the measurement method used to collect survey data
affects the average slope because it controls horizontal resolution. More measurements taken
create a smaller resolution with more detailed slope information. Conversely, fewer measurements
create a larger resolution with less detail because the slope is averaged between measurement
points. Applicant prepared its initial site plan using LiDAR survey data, which results in a smaller
horizontal resolution. Applicant then supplemented this data with “on-the-ground” survey data
measured by applicant’s surveyor, who plotted seventy-six points to measure an area of four acres.
While applicant did not provide the PUC with a map of this on-the-ground survey data or its
ultimate horizontal resolution, the hearing officer suggested it would likely take about 1800 points
for this on-the-ground survey data to achieve a horizontal resolution similar to LiDAR’s.
4
with Rule 5.103’s purpose and requirements. Therefore, the hearing officer issued a proposal for

decision recommending the PUC deny applicant’s CPG petition.

¶ 10. In October 2023, the PUC rejected that proposal for decision and remanded the

case. It rejected the hearing officer’s concerns about the methods of measurement and refocused

the inquiry on whether the Town, rather than the PUC, was satisfied that the Town’s conditions

were met. The PUC reasoned that “[a]bsent extraordinary circumstances” it “[would] not second-

guess a municipal determination that a site is preferred.” Thus, on remand, the PUC ordered

applicant to submit evidence demonstrating the Town’s conditions had been met. Applicant

complied by submitting a January 2024 letter from the Town wherein the Town confirmed its

conditions were satisfied.

¶ 11. In its final order, the PUC accepted the letter as proof that the Town’s conditions

were satisfied. Therefore, the PUC determined the Town’s preferred-site letter was valid for Rule

5.103 purposes indicating continued support.

¶ 12. The PUC’s final order also concluded that the project would not unduly interfere

with the region’s orderly development as required by § 248(b)(1). It found the project would not

have a regional impact because all impacts would be localized or otherwise controlled by the

Agency of Natural Resources’ (ANR) regulations.

¶ 13. Furthermore, ANR authorized applicant to discharge stormwater during

construction under ANR’s General Permit 3-9020 (Permit), which is the general permit for low-

risk sites. A permittee must comply with the Vermont Standards and Specifications for Erosion

Prevention and Sediment Control (EPSC) and the Low Risk Site Handbook for Erosion Prevention

and Sediment Control (Low-Risk Handbook), which contain practices to prevent undue soil

erosion depending on slope grade. Stormwater Permitting Rule § 22-502(d), Code of Vt. Rules

12 030 22, http://www.lexisnexis.com/hottopics/codeofvtrules (authorizing permit conditions

incorporating erosion and sediment control programs by reference); see, e.g., Agency of Nat. Res.

5
Dep’t of Env’t Conservation, General Permit 3-9020 for Stormwater Runoff from Construction

Sites, https://dec.vermont.gov/sites/dec/files/documents/3-9020_Stormwater_

ConstructionGeneralPermit_2020-02-19.pdf [https://perma.cc/F4VM-VB35]. ANR conducted a

risk evaluation of the proposed project site and acknowledged that development would occur on

slopes greater than 25%. Ultimately, ANR determined applicant’s compliance with the Permit

would extend sufficient stormwater control based on ANR’s risk evaluation of the project site.

¶ 14. In its final order, the PUC noted that applicant’s compliance with the EPSC

measures and the Low-Risk Handbook would prevent unreasonable soil erosion under 30 V.S.A.

§ 248(b)(5). Neighbors presented no contrary evidence that applicant’s compliance with the

aforementioned measures would be insufficient to prevent soil erosion. Therefore, the PUC found

these measures and those required by the Permit would present sufficient stormwater control for

the project.

¶ 15. In August 2024, after considering the evidence before it, the PUC granted

applicant’s request for a CPG. Neighbors filed a motion to reconsider, which the PUC denied.

Neighbors timely appealed.

III. Analysis

¶ 16. This Court has previously noted the “limited nature of our review” for challenges

to a CPG grant. In re Vt. Elec. Power Co., 2006 VT 69, ¶ 6, 179 Vt. 370, 895 A.2d 226. We give

“great deference to [the PUC’s] expertise and judgment and accord a strong presumption of

validity to [its] orders.” Id. (quotations omitted); see also In re UPC Vt. Wind, LLC, 2009 VT 19,

¶ 2, 185 Vt. 296, 969 A.2d 144 (explaining that when PUC evaluates CPG application, it engages

in “a legislative, policy-making process” (quotation omitted)). “We defer to the PUC as factfinder,

and we do not reweigh the evidence on appeal.” In re Apple Hill Solar LLC (Apple Hill II), 2021

VT 69, ¶ 53, 215 Vt. 523, 280 A.3d 44. “We will affirm the PUC’s findings unless they are clearly

erroneous and its legal conclusions if they are rationally derived from a correct interpretation of

6
the law and supported by the findings.” In re Apple Hill Solar LLC (Apple Hill I), 2019 VT 64,

¶ 27, 211 Vt. 54, 219 A.3d 1295 (quotations omitted). Finally, we will “give great weight to how

the PUC applies its own rules.” In re Green Mountain Power Corp., 2018 VT 97, ¶ 17, 208 Vt.

349, 198 A.3d 36 (quotation omitted).

¶ 17. On appeal, neighbors argue the PUC made “material errors of law” and “acted

arbitrarily and capriciously” by granting a CPG to applicant. Specifically, neighbors claim the

PUC made three errors by finding the project: (A) would comply with § 248(b)(1) orderly

development criteria; (B) would not cause unreasonable soil erosion as required by 10 V.S.A.

§ 6086(a)(4); and (C) was a “preferred site” by misapplying Rule 5.103. We address each of these

arguments in turn below.

A. Orderly Development

¶ 18. Neighbors first argue that the PUC did not afford “due consideration,” to the town

plan’s land-conservation measures as required by 30 V.S.A. § 248(b)(1), in concluding that the

project would not unduly interfere with the region’s orderly development. Generally, when

“construing a statute, our principal goal is to effectuate the intent of the Legislature.” State v.

LeBlanc, 171 Vt. 88, 91, 759 A.2d 991, 993 (2000) (quotation omitted). We begin with the

statutory language and “assume the Legislature intended the plain and ordinary meaning of the

language it used.” State v. Ettore, 2024 VT 52, ¶ 13, __ Vt. __, 327 A.3d 773 (citing LeBlanc,

171 Vt. at 91, 759 A.2d at 993). If ambiguity exists after considering the language’s plain meaning,

we turn to other canons of statutory construction. Flint v. Dep’t of Labor, 2017 VT 89, ¶ 5, 205

Vt. 558, 177 A.3d 1080.

¶ 19. The Legislature has not defined “due consideration” under § 248(b)(1). We have

previously rejected arguments suggesting “due consideration” requires the PUC to find that a

proposed project “strictly adher[es]” to regional or town plans prior to issuing a CPG. UPC Vt.

Wind, LLC, 2009 VT 19, ¶ 17 (rejecting argument that PUC was required to find project adhered

7
to regional plan because statute’s plain terms only required PUC to give it “due consideration”);

see also Apple Hill II, 2021 VT 69, ¶ 31 (distinguishing Act 250’s “prerequisite” permitting, which

requires compliance with plan’s land-conservation measures, from § 248, which entitles such

measures “only to ‘due consideration’ ”). Instead, we have said “due consideration” regarding

land-conservation measures within a town plan functionally guide—not necessarily govern—

whether these criteria are satisfied. Vt. Elec. Power Co., 2006 VT 69, ¶ 25.

¶ 20. The current due-consideration standard derives from our decision in City of South

Burlington v. Vermont Electric Power Co., 133 Vt. 438, 344 A.2d 19 (1975). That case involved

the construction of an electrical-transmission line to the Burlington area—an “undisputed” and

“urgent” need. Id. at 440, 344 A.2d at 20. At issue was whether the PUC required a zoning permit

from South Burlington before construction could proceed.4 This Court “recognize[d] and

approve[d]” the public-policy statement articulated by the Connecticut Supreme Court: that

“municipalities should play a secondary role where a clash of authority appears to exist between

state control and local control of a public utility furnishing a state-wide service.” Id. at 446-47,

344 A.2d at 24 (citing Jennings v. Conn. Light & Power Co., 103 A.2d 535 (Conn. 1954)).

Additionally, we indicated that § 248’s requirement that municipalities’ recommendations are

afforded “due consideration” “at least impliedly postulates that municipal enactments, in the

specific area, are advisory rather than controlling.” Id. at 447, 344 A.2d at 25. To hold otherwise,

we reasoned, would have the effect of precluding the transmission line’s construction entirely

because South Burlington’s ordinances did not allow for it. Id. at 447-48, 344 A.2d at 25.

Accordingly, this Court indicated we cannot “give[] single municipalities the power to subvert

utility projects statewide in scope and broadly entrusted to a single planning and supervisory

agency.” Id. at 448, 344 A.2d at 25.

4
The Public Service Board (PSB) referenced in the case is the predecessor to the PUC.
See, e.g., Acorn Energy Solar 2, LLC, 2021 VT 3, ¶ 71 (explaining that PSB was “the predecessor
to the PUC”).
8
¶ 21. Later, we relied on City of South Burlington to articulate preemption principles.

See, e.g., In re Patch, 140 Vt. 158, 177, 437 A.2d 121, 130 (1981) (citing City of South Burlington

in declining to apply preemption doctrine to case facts because doctrine should be invoked “when

the local law is a barrier to what the state has required to be done”). And we eventually invoked

City of South Burlington as our current treatment of the due-consideration standard materialized.

See, e.g., Vt. Elec. Power Co., 2006 VT 69, ¶¶ 25, 27 (noting that we construed phrase “due

consideration” in City of South Burlington and concluding that PSB decision “effectively

address[ed] the Shelburne town plan”); see also UPC Vt. Wind, LLC, 2009 VT 19, ¶ 17 (citing

“due consideration” construction in City of South Burlington in dismissing argument that PUC

was required to find project “strictly adhered” to regional plan because PUC “need only give”

planning recommendations “due consideration”).

¶ 22. The Legislature amended § 248 in response to concerns about the lack of control

municipalities faced in the solar-siting process. See, e.g., In re Rutland Renewable Energy, LLC,

2016 VT 50, ¶ 10, 202 Vt. 59, 147 A.3d 621 (citing 2015, No. 56, §§ 26a, 26b, 26c) (explaining

Legislature amended § 248 in 2015 to “give towns greater control over solar generation facilities”).

However, despite these amendments, the Legislature has not defined due consideration or added

language suggesting the PUC should defer to municipal land-conservation measures under the

“due consideration” standard beyond what our precedent requires.

¶ 23. For this reason, we follow the existing legal framework before us. That framework

requires the PUC to consider compliance with the provisions of a town plan “to the extent they

qualify as land conservation measures or screening requirements of a municipal ordinance or

bylaw” when determining § 248(b)(1)’s orderly development requirement. Acorn Energy Solar 2,

LLC, 2021 VT 3, ¶ 92. This application of the standard therefore does not necessarily require we

accede to a town or regional plan’s land-conservation measures. Apple Hill II, 2021 VT 69, ¶ 31

(“[E]ven a clear, written land-conservation measure . . . does not present an insurmountable

9
obstacle to approval . . . .”); UPC Vt. Wind, LLC, 2009 VT 19, ¶ 17 (“[PUC] need only give ‘due

consideration’ to the recommendations of the municipal and regional planning commissions in

deciding if the project ‘will not unduly interfere with the orderly development of the region.’ ”

(quoting 30 V.S.A. § 248(b)(1))).

¶ 24. Here, the Regional Plan has attained an affirmative determination of energy

compliance. The Town Plan has not. Thus, the Town Plan is entitled to “due consideration” of its

land-conservation measures. Apple Hill II, 2021 VT 69, ¶ 31. The PUC determined that the

energy-development prohibition on slopes exceeding 25% was a land-conservation measure. But

it acknowledged noncompliance was not a decisive factor in the orderly development analysis.

The PUC considered the measure, noting the project’s localized impact, and concluded the project

would not unduly interfere with the orderly development of the region.

¶ 25. Neighbors argue “due consideration” requires the PUC to construe noncompliance

with a plan’s land-conservation measures as a determinative element of the inquiry under

§ 248(b)(1). To do otherwise, neighbors claim, would render the phrase “due consideration”

superfluous. See Baldauf v. Vt. State Treasurer, 2021 VT 29, ¶ 19, 215 Vt. 18, 255 A.3d 731

(explaining that we avoid construing statutes in manner that renders part of statutory language

superfluous). Neighbors urge this Court to adopt the definition of due consideration from Hoyt v.

Smith, which defined “due consideration” to require “consideration in proper course of

procedure.” 83 Vt. 412, 415, 76 A. 107, 107 (1910).

¶ 26. But Hoyt involved a different issue than is present here. In Hoyt, a Washington

County justice of the peace signed a writ in a civil action for trespass and assault and battery that

was made returnable to the Caledonia County court. The defendant moved to dismiss the suit,

arguing the Washington County justice of the peace had no authority in Caledonia County. The

plaintiff moved to amend the writ to state it was signed in Caledonia. The plaintiff’s motion to

amend was granted, and the defendant’s motion to dismiss was denied. On appeal we said that the

10
“defect was one of form” and that the words in the writ “upon consideration” meant “upon due

consideration” which required “consideration in proper course of procedure.” Id. at 414-15, 76 A.

at 107-08.

¶ 27. Neighbors urge that Hoyt’s definition of “upon due consideration,” centers on

process and procedure. They argue the same applies here such that the PUC must “duly consider[]”

and give “the weight of contemplative inclusion” to a plan’s land-conservation measures.

¶ 28. We are not persuaded by neighbors’ comparison to Hoyt and decline to adopt

neighbors’ definition of due consideration. Hoyt primarily applies in the context of amendments

to judicial process errors, not to the consideration of local land-conservation measures in the CPG

process, as disputed here. See, e.g., Elwell v. Olin, 99 Vt. 460, 462, 134 A. 592, 593 (1926) (citing

Hoyt to support proposition that amendment is allowed where defect in process still confers

jurisdiction).

¶ 29. Neighbors next claim that the PUC’s orderly development finding was not

supported by the evidence. Neighbors rely on PUC Rule 5.107(C)(8), which established an

applicant’s CPG filing requirements. Construction and Operation of Net-Metering Systems

§ 5.100, Code of Vt. Rules 30 000 5100, https://puc.vermont.gov/sites/psbnew/files/doc_library/

5100-PUC-nm-effective-07-01-2017_0.pdf [https://perma.cc/T6JU-R63X]. While Rule

5.107(C)(8) is now rescinded, it was in effect at the time of filing, and “we apply the substantive

law in effect at that time.”5 Apple Hill II, 2021 VT 69, ¶ 30 n.3. Rule 5.107(C)(8), in relevant

part, required an applicant to file copies of relevant sections from town and regional plans along

with testimony describing how a project “complies with or is inconsistent with” land-conservation

measures contained therein. Id.

5
Rule 5.107 has since been removed from the PUC’s Rule 5.100. Compare Rule § 5.100
(describing current rule and noting Rule 5.107’s removal), with Construction and Operation of Net
Metering Systems § 5.100, Code of Vt. Rules 30 000 5100, [https://perma.cc/T6JU-R63X]
(describing Rule 5.107 as effective beginning in 2017).
11
¶ 30. In August 2021, applicant submitted a report to assist the PUC’s aesthetics and

orderly development analyses. The Report included citations to and quotations from relevant

provisions of the Town and Regional plans. It emphasized the project’s compatibility with the

Town and Regional Plans’ respective policies and goals. It further cited the existence of the joint

preferred-siting designation to bolster its assertion that the project would not unduly interfere with

the orderly development of the region.

¶ 31. On appeal, neighbors challenge the Report’s sufficiency and rely on two main

points. Neighbors claim that, in addition to the Report, applicant should have: (1) submitted a

copy of the Regional Plan’s suitability map to demonstrate the project was not prohibited by the

Regional Plan; and (2) disclosed in the Report that the project did not comply with the Town’s

prohibition on energy development on slopes exceeding 25%. Applicant’s failure to do so,

neighbors allege, resulted in a lack of evidence making the PUC’s orderly development finding

baseless and in error.

¶ 32. We will not disturb the PUC’s findings of fact unless clearly erroneous. Vt. Elec.

Power Co., 2006 VT 69, ¶ 6; In re Adelphia Bus. Sols. of Vt., Inc., 2004 VT 82, ¶ 7, 177 Vt. 136,

861 A.2d 1078 (“The burden of demonstrating clear error is the appellant’s, and that burden is not

a light one.”). The PUC’s findings are clearly erroneous only if the record does not support them.

In re TruConnect Commc’ns, Inc., 2021 VT 70, ¶¶ 19-20, 215 Vt. 422, 263 A.3d 770

(demonstrating we uphold findings when supported by record and because finding had no record

support, we “can only conclude” finding was clearly erroneous).

¶ 33. Here, the PUC had sufficient evidence before it to make findings on orderly

development. Applicant’s failure to provide the PUC with copies of the Town and Regional Plans

did not deprive the PUC of evidence upon which to base its orderly development determination.

As discussed above, the Report included excerpts from the Town and Regional Plans and described

the project’s compliance with their respective prohibitions. The PUC based its findings on the

12
evidence applicant presented. While the PUC did not make explicit findings regarding the

Regional Plan suitability map, this does not amount to clear error. Its findings reflect that it had

sufficient evidence before it to make an orderly development determination.

¶ 34. Finally, neighbors argue that the PUC acted arbitrarily and capriciously in

determining the project complied with § 248(b)(1)’s orderly development requirement because of

the project’s regional impacts. If a regional impact is established, it may prevent a project only if

it unduly interferes with the region’s orderly development. UPC Vt. Wind, LLC, 2009 VT 19,

¶ 20 (explaining even if project has substantial regional impact “it does not necessarily follow that

the project therefore will unduly interfere with the orderly development of the region”).

¶ 35. According to neighbors, the record contains “ample evidence” the project would

unduly interfere with the region’s orderly development. First, neighbors argue the project would

have a regional impact because of its location within a surface-water protection area. Neighbors

assert the Regional Plan’s definition of “substantial regional impact” includes development that

threatens public water supply. Neighbors reason even if the impacts are “localized and confined

to the project site,” an undue adverse regional impact will still result. Second, neighbors claim the

project’s potential soil erosion will have a regional impact because of the alleged increased risk of

natural disasters like flooding.

¶ 36. The PUC considered and rejected both of neighbors’ claims. It weighed the

project’s potential impacts on “floodways, streams, wetlands, and soil erosion.” The PUC

recognized ANR’s stormwater Permit contained measures to prevent soil erosion. It ultimately

concluded that neighbors’ concerns did not give rise to a regional impact.

¶ 37. On appeal, neighbors essentially urge this Court to reweigh the evidence in the

record to overturn the PUC’s findings. This we will not do. See UPC Vt. Wind, LLC, 2009 VT

19, ¶ 21 (declining to reconsider evidence, which falls under PUC’s purview, and reach opposite

conclusion to PUC); see also Rutland Renewable Energy, LLC, 2016 VT 50, ¶ 29 (“[I]t is for the

13
[PUC], not this Court, to weigh the evidence and assess the credibility of witnesses . . . .”

(quotation omitted)). The PUC has weighed the evidence before it, and it acted within its discretion

in doing so. Accordingly, we affirm the PUC’s determination that the project will not unduly

interfere with the region’s orderly development.

B. Soil Erosion and Water Pollution

¶ 38. Neighbors next argue that the PUC erred in finding the project would not cause soil

erosion or water pollution under 30 V.S.A. § 248(b)(5) and 10 V.S.A. § 6086(a)(1)(4). First,

neighbors allege that the PUC conflated ANR’s grant of applicant’s construction stormwater

Permit with § 248(b)(5) compliance. Second, they claim the PUC erred in deferring to ANR’s

interpretation of “impervious surface.” Third, neighbors challenge the PUC’s characterization of

ANR’s arguments as evidence when, according to neighbors, ANR submitted no evidence.

¶ 39. First, we address neighbors’ argument that the PUC conflated ANR’s grant of the

Permit with statutory compliance. While ANR is the primary agency tasked with creating

stormwater-management regulations, it is not the only state agency entrusted with protecting

water. See, e.g., 6 V.S.A. § 4810(d) (charging Agency of Agriculture, Food and Markets with

implementing practices consistent with “water pollution control requirements of 10 V.S.A. chapter

47 and the federal Clean Water Act”). Neighbors raise that the Land Use Review Board (LURB)

is tasked with Act 250 compliance and makes findings independent of ANR. Neighbors contend

that the PUC’s primary reliance on ANR’s Permit was in error because the Legislature

incorporated the 10 V.S.A. § 6086 criteria in 30 V.S.A. § 248(b)(5), and therefore the PUC should

have been required to make independent, site-specific findings similarly to the LURB.

¶ 40. We have previously recognized “tests imported from Act 250 may apply differently

in the § 248 context.” Apple Hill II, 2021 VT 69, ¶ 41. Contrary to neighbors’ argument, Act 250

permit compliance is entrusted to both the LURB and ANR. See 10 V.S.A. § 8004 (providing Act

250 enforcement is joint venture of LURB and ANR); In re N.E. Materials Grp., LLC, 2017 VT

14
43, ¶ 6, 205 Vt. 490, 174 A.3d 747 (stating Act 250 gives LURB and ANR enforcement power for

Act 250 permits).6 Neighbors acknowledge that the PUC considered more than ANR’s Permit,

but they take issue with what they view as the PUC’s near-exclusive reliance on the Permit.

However, as referenced above, the PUC considered more than the Permit. This Court will not

“reweigh the evidence on appeal.” Apple Hill II, 2021 VT 69, ¶ 53. Neighbors’ disagreement

with the PUC’s findings on soil erosion when it weighed the evidence presented does not amount

to clear error.

¶ 41. Neighbors also contend the PUC was required to address the risk of post-

construction erosion because the Permit only governs stormwater discharge during construction.

But the PUC expressly considered that the Low-Risk Handbook requires measures to control

permanent, or post-construction, stormwater discharge. Based on ANR’s regulations and Permit,

and applicant’s assurances that it would comply with the Low-Risk Handbook, the PUC made an

informed finding on soil erosion for § 6086(a)(4) purposes. We see no error.

¶ 42. Next neighbors claim that the PUC erred in deferring to ANR’s interpretation of

“impervious surface” when determining whether the project would cause soil erosion or water

pollution. A facility is required to secure an additional, operational stormwater permit from ANR

if its development would result in at least one-half acre of impervious surfaces. 10 V.S.A.

§ 1264(c)(1). Impervious surfaces are defined as “manmade surfaces, including paved and

unpaved roads, parking areas, roofs, driveways, and walkways, from which precipitation runs off

rather than infiltrates.” Id. § 1264(b)(6). The Legislature tasked ANR with implementing § 1264

through stormwater-management rules. Id. § 1264(a)(2)(B), (f). We defer to ANR’s interpretation

if the terms are within its expertise, if ANR applies complex methodologies to define them, or if

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The Natural Resources Board is now called the LURB. In re SM Farms Shop, LLC,
2025 VT 33, ¶ 6 n.1, __ Vt. __, 342 A.3d 862 (“The Natural Resources Board is now called the
Land Use Review Board.”).

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ANR is “statutorily authorized to provide such guidance.” In re Korrow Real Est., LLC Act 250

Permit Amend. Application, 2018 VT 39, ¶ 20, 207 Vt. 274, 187 A.3d 1125. However, this

deference is not absolute. See, e.g., In re Woodford Packers, Inc., 2003 VT 60, ¶ 17, 175 Vt. 579,

830 A.2d 100 (mem.) (stating ANR’s authority may give rise to due-process violation if

“arbitrarily and capriciously applied”).

¶ 43. ANR explained that it measures impervious surfaces for solar panels based on the

panel’s base or foundation—material that directly touches the ground. Elevated panel surfaces are

not considered impervious for this calculation because precipitation comes off the panel’s surface

and contacts the vegetated ground beneath. In its order denying neighbors’ motion for

reconsideration, the PUC accepted and followed ANR’s formula for calculating the project’s

impervious surface area. The PUC stated that after considering the evidence presented by

neighbors and ANR, it was persuaded by ANR’s determination and saw no reason to reconsider

its conclusion.

¶ 44. Neighbors assert that because solar panels are manmade surfaces, the panel’s

surface should also count when measuring impervious surfaces for ANR stormwater permitting.

They argue the PUC erred in deferring to ANR’s interpretation of the term “impervious surface”

as applied to solar panels.

¶ 45. We disagree. The PUC did not err when it accepted ANR’s formula for measuring

an elevated solar panel’s impervious surface. ANR’s interpretation of the term “impervious

surface” as applied to elevated solar panels is wholly consistent with its statutory authority under

§ 1264. Moreover, ANR possesses the relevant expertise to craft the formula for measuring an

elevated solar panel’s impervious surface. By restricting an elevated solar panel’s measured area

to the area that covers the ground, ANR applied the same logic that defines impervious surfaces in

§ 1264(b)(6). “[P]aved and unpaved roads, parking areas, roofs, driveways, and walkways” all

share a common characteristic: they prevent precipitation from percolating to vegetation

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immediately beneath them. Only the base of an elevated solar panel will function in the same way.

The elevated panel itself may only delay, rather than block, precipitation from reaching the ground

beneath.

¶ 46. Finally, neighbors challenge the PUC’s characterization of ANR’s arguments as

evidence when, according to neighbors., ANR submitted no evidence. This is contrary to the

record before us. The hearing officer requested “ANR explain whether and how Vermont’s

stormwater management regulations and the Project’s design will address [neighbors’] concerns.”

ANR responded to the request through a post-hearing legal briefing. Along with this, ANR

requested that the PUC to take notice of judicially cognizable facts contained within three

documents attached to its briefing. 3 V.S.A. § 810(4) (providing agency may take notice of

judicially cognizable facts). These three attachments were: applicant’s notice of intent under the

Permit, applicant’s site plan map, and the Low-Risk Handbook. There were no objections to

ANR’s request for the PUC to take judicial notice of these documents. Therefore, the hearing

officer granted ANR’s request.

¶ 47. Neighbors claim the evidence submitted was not responsive to the hearing officer’s

request. The PUC concluded otherwise. Neighbors’ disagreement with the PUC on the

responsiveness of ANR’s filing is not a basis for clear error.

C. Preferred-Site Determination

¶ 48. Finally, neighbors argue that the PUC misapplied its own rule, Rule 5.103. After

the Town was put on notice from neighbors, it communicated with applicant and conditioned its

preferred-site letter on compliance with two requirements: (1) that no panels would be on slopes

with a grade greater than 25%; and (2) that the final site plan would be provided to both the Town

and neighbors. As noted above, the hearing officer initially recommended that the PUC deny

applicant’s petition for a CPG because of the lack of mutual understanding as to the method of

measurement used for the site plan’s survey data. The PUC rejected this recommendation,

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required applicant to submit evidence demonstrating the Town’s conditions were satisfied, and

directed the hearing officer to address the remaining § 248 criteria. Despite applicant’s submission

of the Town’s January 2024 letter, neighbors continued to challenge applicant’s method of

measurement, alleging it was inaccurate and misleading.

¶ 49. We disagree. The PUC correctly found that the Town’s conditions were met based

on its January 2024 letter. The PUC did not err when it interpreted and applied Rule 5.103. Like

other agencies, our deference extends to the PUC’s reasonable interpretations of its own rules and

regulations. In re Conservation L. Found., 2018 VT 42, ¶ 15, 207 Vt. 309, 188 A.3d 667 (stating

our deference extends to PUC’s interpretations of its own regulations). This deference is not “mere

judicial passivity in determining the propriety of [the PUC’s] interpretations of its own rules.” In

re Vitale, 151 Vt. 580, 583, 563 A.2d 613, 615 (1989) (quotation omitted). Instead, “[w]e still

conduct an independent review and will overturn an agency’s interpretation of its own promulgated

regulation that exceeds” the agency’s statutory authority; conflicts with the agency’s prior

interpretations of the same rule; results in “unjust, unreasonable or absurd consequences”; or

“demonstrates compelling indications of error.” Conservation L. Found., 2018 VT 42, ¶ 16

(quotations omitted).

¶ 50. While the PUC may be better suited to interpret survey data, it is not in a better

position to second-guess a municipality’s decision as to whether a specific location would qualify

as a preferred site. The Town was aware of neighbors’ arguments regarding the accuracy of

different measurement methods. With these arguments in mind, it could have required applicant

to produce a site plan that contained certain measurement methods, like LiDAR, to satisfy its

condition. But it did not. Instead, the Town only requested it be provided with survey data. We

do not agree with neighbors that the site plan provided to Town was obsolete. Creating site plans

may be an iterative process, but it is not necessarily a sequential one. The Town did not require a

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version of the site plan that built upon the sixth; it only required the final one applicant intended

to implement.

¶ 51. We also reject neighbors’ argument that the PUC impermissibly placed the burden

on the Town, instead of applicant, to demonstrate its conditions were satisfied. The Town did not

intervene, and it was not required to. In its remand order, the PUC squarely placed the burden on

applicant to produce evidence “demonstrating that the Town . . . [was] satisfied” that the

conditions in its December 2021 letter were met. Applicant’s evidence came from the Town itself

via its January 2024 letter. The Town set the conditions for its support. The Town was in the best

position to determine whether its conditions were satisfied or not.

¶ 52. Because we reject neighbors’ arguments, we affirm the PUC’s final order finding

the project site was a preferred site under Rule 5.103. The PUC may accept the Town’s assurance

that its conditions were satisfied as consistent with Rule 5.103(7)’s intent to give municipalities

more flexibility in siting preferred sites.

IV. Conclusion

¶ 53. We reject neighbors’ arguments and affirm the PUC’s rationale for granting

applicant a CPG. The PUC made findings for each of the § 248 criteria and resolved “the ultimate

question . . . whether the project promoted the general good of the state.” UPC Vt. Wind, LLC,

2009 VT 19, ¶ 7. The PUC’s findings were not clearly erroneous, and its legal conclusions were

“rationally derived from a correct interpretation of the law and supported by the findings.” Apple

Hill I, 2019 VT 64, ¶ 27 (quotation omitted). The PUC properly exercised its discretion, and we

see no basis to disturb its conclusion that applicant is entitled to a CPG.

Affirmed.

FOR THE COURT:

Chief Justice

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