In re Halnon

Tom Halnon (plaintiff) wanted to erect a 100-foot-tall wind turbine on his property in Vermont. A Vermont statute classified the wind turbine as a net metering system that required a certificate of public good (CPG) from the Vermont Public Service Board (the board). Halnon sent notice of the proposed turbine to interested parties as part of his CPG application. Many people objected to Halnon’s proposal for aesthetic reasons, including Halnon’s neighbors, the Rimonneaus. Halnon’s proposed turbine was directly in view of the Green Mountains from the Rimonneaus’ house, and the turbine would have been 450 feet from the Rimonneaus’ house in a wooded area that had no other large manmade structures. Following hearings and site visits, a hearing officer issued a proposal for decision (PFD), concluding that the board should deny Halnon’s CPG request because the proposed turbine would unduly adversely affect the aesthetics and the scenic and natural beauty of the proposed site. In reaching that decision, the hearing officer applied the Quechee undue-adverse-effect test. The test required determining whether a proposed project would adversely affect the aesthetics or beauty of a proposed project site because the project would not be harmonious with its surroundings. If yes, the test then required determining whether the adverse effect was undue, which required finding that (1) the project violated a clear written community standard for aesthetic preservation, (2) the project would offend the average person’s sensibilities, or (3) the applicant had failed to take reasonable mitigating steps to improve the project’s fit with the surrounding area. The board visited Halnon’s property and heard testimony regarding Halnon’s proposed turbine. The board then accepted the PFD, concluding that Halnon had failed the Quechee test’s second prong because Halnon had not compellingly explained why he could not place the turbine in various aesthetically preferable alternate locations and had failed to take mitigating steps to improve the turbine’s fit with its surroundings. The board further found that the proposed turbine would offend the sensibilities of an average person in the Rimonneaus’ position. Halnon appealed.