## Facts

- Tom Halnon applied to the Vermont Public Service Board (Board) for a certificate of public good (CPG) to build and operate a wind-turbine net-metering system on his 62-acre property in East Middlebury, Vermont.
- The proposed turbine consisted of a 100-foot tubular tower with three 23-foot-diameter blades, to be located in a four-acre meadow.
- The surrounding area was predominantly wooded, with few residences and no other prominent man-made structures visible in the immediate area.
- Neighboring landowners, including the Rimonneaus, objected primarily on aesthetic grounds; their home was about 450 feet from the proposed turbine location and had views toward the Green Mountains across the meadow.
- After hearings, a hearing officer applied the Quechee undue-adverse-effect aesthetics test and recommended denying the CPG due to undue adverse aesthetic impacts.
- The Board conducted a site visit, adopted the proposal for decision, and denied the CPG based on undue adverse effects on aesthetics and scenic and natural beauty.
- Halnon appealed, arguing the Board relied improperly on its site visit and that denial conflicted with the legislative purpose of Vermont’s net-metering statute.

## Issues

1. Whether the Board abused its discretion by relying exclusively on observations from its site visit rather than record evidence when denying the CPG.
2. Whether substantial evidence supported the Board’s findings, under the Quechee test, that the project would have an adverse and undue adverse effect on aesthetics and scenic and natural beauty.
3. Whether denying the CPG was contrary to legislative intent favoring net metering under 30 V.S.A. § 219a.

## Decision

- The Vermont Supreme Court affirmed the Board’s denial of the CPG.
- The Court held the Board did not abuse its discretion in using its site visit as part of its evaluation and did not rely exclusively on non-record observations.
- The Court upheld the Board’s application of the Quechee test, including findings that the turbine was not in harmony with its rural wooded setting and that the adverse effect was undue.
- The Court rejected the claim that the net-metering statute required approval, holding that § 219a does not displace the Board’s independent duty under § 248 to prevent undue adverse aesthetic effects.

## Legal Principles

- A net-metering facility under 30 V.S.A. § 219a still requires a CPG under 30 V.S.A. § 248 and remains subject to review for undue adverse effects on aesthetics and scenic and natural beauty.
- Under the Quechee test, the Board determines (1) whether a project has an adverse aesthetic effect because it is not in harmony with its surroundings and, if so, (2) whether the adverse effect is undue.
- An adverse aesthetic effect may be found “undue” if it (a) violates a clear written community standard, (b) would offend the sensibilities of the average person, or (c) reflects the applicant’s failure to take generally available mitigating steps a reasonable person would take.
- The Board may use a site visit, together with record evidence, to assess visual and contextual impacts; appellate review defers to Board findings supported by evidence and reverses only for clear error or abuse of discretion.
- In assessing “undueness,” the Board may consider a project’s visibility from nearby residences and whether the applicant reasonably considered alternative siting or other mitigation on the parcel.

## Conclusion

The Vermont Supreme Court upheld the Board’s denial of a CPG for a proposed net-metering wind turbine because the Board permissibly relied on its site visit alongside record evidence and reasonably found, under the Quechee test, that the turbine’s placement would create an undue adverse aesthetic impact notwithstanding statutory policies encouraging net metering.


In re Halnon, 811 A.2d 161 (Vt. 2002)