Chelsea Solar v. Puc

7ermont Superior Court
Filed 04/29/25
Chittenden UUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case Nos. 24-CV-04865
175 Main Street & 24-CV-4868
Burlington VT 05401
802-863-3467
www.vermontjudiciary.org

Chelsea Solar LLC, Appellant v. Vermont Public Utility Commission, et al, Appellee
Otter Creek Solar, Appellant v. Public Utility Commission, Appellee

DECISION ON MOTIONS TO DISMISS

In these two cases, Appellants seek review of decisions by the Public Utilities Commission

("PUC") in certificate of public good proceedings. The appellees in each case have moved to dismiss
the appeal. While the two PUC proceedings are at different stages, the threshold question presented by

the two appeals is the same: does this court have jurisdiction to review PUC decisions denying or

limiting discovery? The court concludes that it does not, and so grants the motions to dismiss both
appeals.
As noted above, the two cases are in different procedural postures. In the Chelsea Solar case
(PUC Case No. 23-0249-PET), Appellant has applied for a certificate of public good, which the Town
of Bennington opposes. Chelsea Solar has appealed PUC orders limiting discovery. In the Otter Creek
case (PUC Case No. 19-0516-PET), the PUC denied an application for a certificate of public good, and

the petitioner subsequently sought to propound interrogatories. The PUC denied that request. These

appeals followed, pursuant to V.R.C.P. 74.
Chelsea Solar and Otter Creek found their claim for jurisdiction on the Vermont Administrative
Procedure Act ("VAPA")-specifically, 3 V.S.A. § 809b(a). That section provides:

When an agency has issued a subpoena to compel testimony or the production of
documents or things, or has issued a discovery order to a party, an aggrieved person
may bring a proceeding to modify or vacate the subpoena or order in the Superior Court
for the county in which the petitioner resides or in which the administrative proceeding
is or will be held.
The PUC argues that this provision does not apply; it observes that it has issued neither a subpoena nor
a "discovery order to a party"; instead, it has declined to issue either. Thus, by its own terms, § 809b

does not apply. Moreover, a different provision of VAPA requires that these appeals be brought, if at

all, in the Supreme Court. 3 V.S.A. § 815(a) provides:
A person who has exhausted all administrative remedies available within the agency
and who is aggrieved by a final decision in any contested case may appeal that decision
Decision on Motions to Dismiss Page 1 of 3
24-CV-04865 Chelsea Solar LLC, Appellant v. Vermont Public Utility Commission, et al, Appellee
24-CV-04868 Otter Creek Solar, Appellant v. Vermont Public Utility Commission, Appellee
to the Supreme Court, unless some other court is expressly provided by law. However, a
preliminary, procedural, or intermediate agency action or ruling is immediately
appealable under those rules if review of the final decision would not provide an
adequate remedy, and the filing of the appeal does not itself stay enforcement of the
agency decision.
The decisions at issue here are undoubtedly procedural rulings in contested cases; thus, a plain reading
of the statute would require that appeal be taken, if at all, to the Supreme Court.
To the extent one could argue that there is at least some tension between the provisions of
sections 809b and 815(a) of VAPA, the provisions of Title 30 supply the definitive answer in these
cases. There, the Legislature has granted the PUC “the powers of a court of record in the determination
and adjudication of all matters over which it is given jurisdiction,” 30 V.S.A. § 9. The PUC has the
authority to enforce its orders “by any suitable process issuable by courts in this State.” Id. It is
further empowered “to prescribe . . . general rules with respect to pleadings, practice, evidence,
procedure, and forms for all Commission proceedings.” Id. § 11(a)(2); see In re SolarCity Corp., 2019
VT 23, ¶ 13, 210 Vt. 51 (although not a court in the strict sense, PUC is quasi-judicial agency with
powers of a court of record) (citation omitted).
Because the Legislature has given the PUC the powers of a court of record, any appeal to this
court would be a horizontal appeal, which the Legislature has not authorized. See Appeal of City of
Barre, 134 Vt. 519, 521 (1976) (horizontal appeal of decision by commissioner of taxes to Superior
Court not permitted); see also Morrisseau v. Fayette, 164 Vt. 358, 362–63 (1995) (horizontal appeals
from one trial court to another are “undesirable” and should be avoided). Rather, 30 V.S.A. § 12
provides:
A party to a cause who feels aggrieved by the final order, judgment, or decree of the
Commission may appeal to the Supreme Court. However, the Commission, in its
discretion and before final judgment, may permit an appeal to be taken by any party to
the Supreme Court for determination of questions of law in the manner as the Supreme
Court may by rule provide for appeals before final judgment from a Superior Court.
This provision plainly confers jurisdiction for any appeals from decisions of the PUC upon the
Supreme Court. See also 30 V.S.A. § 14 (“The Supreme Court may reverse or affirm the
judgments, orders, or decrees of the Commission and may remand a cause to it with such
mandates, as law or equity shall require; and the Commission shall enter judgment, order, or
decree in accordance with such mandates.”); id. § 234 (“A person, partnership, or
unincorporated association aggrieved by any act or order of the Public Utility Commission may
transfer such cause to the Supreme Court under the provisions of section 12 of this title.”).
Consistent with these statutory provisions, the Court noted in Barnet Hydro Co. v. Public
Decision on Motions to Dismiss Page 2 of 3
24-CV-04865 Chelsea Solar LLC, Appellant v. Vermont Public Utility Commission, et al, Appellee
24-CV-04868 Otter Creek Solar, Appellant v. Vermont Public Utility Commission, Appellee
Service Board that decisions by the Public Service Board, also covered by Title 30, are treated
as Superior Court decisions, both of which are appealable to the Supreme Court. 174 Vt. 464,
467 (2002) (mem.).
The provisions of Title 30 clearly control here. “[W]here two statutes deal with the
same subject matter, and one is general and the other specific, the more specific statute
controls.” Town of Brattleboro v. Garfield, 2006 VT 56, ¶ 10, 180 Vt. 90; see In re Petition of
LK Holdings, LLC, 2018 VT 109, ¶ 38, 209 Vt. 14 (“To the extent that there is a conflict
between [Title 30] and the VAPA, the more specific statute, that is, [Title 30], controls.”).
While VAPA sets forth general provisions addressing procedures before administrative
agencies, Title 30 deals specifically with proceedings before only the Department of Public
Service and Public Utilities Commission. It matters not that the former specifically addresses
discovery orders, while the latter deals more broadly with any actions by the PSB or PUC; in
Title 30, the Legislature clearly set forth provisions applying specifically to those bodies. That
is the true measure of specificity; the intent to carve out proceedings before the PSB and PUC
from those before other administrative bodies could hardly be clearer.
Title 30 therefore governs both of these appeals. Its provisions make clear that any
appeal from decisions of the PUC, whether interlocutory or final, must be addressed to the
Supreme Court. This court therefore lacks jurisdiction to hear these appeals.

ORDER

The court grants the motions to dismiss. Any appeal in these matters must be to the
Supreme Court.

Electronically signed pursuant to V.R.E.F. 9(d): 4/28/2025 9:51 AM

___________________________
Samuel Hoar, Jr.
Superior Court Judge

Decision on Motions to Dismiss Page 3 of 3
24-CV-04865 Chelsea Solar LLC, Appellant v. Vermont Public Utility Commission, et al, Appellee
24-CV-04868 Otter Creek Solar, Appellant v. Vermont Public Utility Commission, Appellee