LAW OFFICES
READNOUR & BARONE
Memorandum

SUBJECT: VERMONT PUBLIC SERVICE BOARD AUTHORITY RE: MUNICIPAL ZONING

DATE: JUNE 8, 2000

ISSUE: WHETHER THE VERMONT PUBLIC SERVICE BOARD MAY OVERRIDE THE DECISIONS AND REQUIREMENTS OF MUNICIPAL ZONING IN MAKING DECISIONS REGARDING THE APPROVAL OF AN ELECTRIC GENERATION FACILITY UNDER 30 V.S.A. § 248?

ANSWER: WHILE THE BOARD MUST GIVE DUE CONSIDERATION TO THE RECOMMENDATIONS OF MUNICIPAL PLANNING AGENCY AND THE SELECTBOARD, IT IS NOT BOUND BY THEM. THE BOARD MAY OVERRULE SUCH RECOMMENDATIONS INCLUDING ZONING DECISIONS IF IT FEELS THAT IT IS APPROPRIATE IN BALANCING OTHER REQUIREMENTS OF 30 V.S.A §248.

DISCUSSION

The Vermont Public Service Board's authority over the construction of power plants is found in is 30 V.S.A. §248. It provides in pertinent part to the above inquiry that: (b) Before the public service board issues a certificate of public good . . . it shall find that the purchase, investment or construction:

(1) with respect to an in-state facility, will not unduly interfere with the orderly development of the region with due consideration having been given to the recommendations of the municipal and regional planning commissions, the recommendations of the municipal legislative bodies, and the land conservation measures contained in the plan of any affected municipality . . . . 30 V.S.A. § 248(b)(1).

If the Town of Bennington has zoning authority which applies to or limits the construction of a power plant, it must apply such authority to the construction of a power plant subject to the following limitations: (a) Unless reasonable provision is made for the location of any of the following in a [municipal zoning bylaw], the following uses may only be regulated with respect to size, height, bulk, yards, courts, setbacks, density of buildings, off-street parking and loading facilities and landscaping or screening requirements:

(1) Public utility power generating plants and transmission lines . . . .

24 V.S.A. §4409(a)

The public utility laws also limit the municipality's authority as follows:

Any statute conferring authority upon municipalities to supervise or to make any order or regulation respecting any location, business or company, subject to the provisions of this chapter, shall be construed as giving such municipalities jurisdiction without authority to alter or modify any order, judgment, decree or regulation made by the public service board. 30 V.S.A. §224.

The interplay of these statutory provisions was considered by the Vermont Supreme Court in City of South Burlington v. Vermont Electric Power Company, Inc., 133 Vt. 438, 344 A.2d 19 (Vt. 1975). This case involved a transmission line that had received a certificate of public good from the Vermont Public Service Board ("Board") under 30 V.S.A. §248. The City of South Burlington sought to stop construction of the transmission line because Vermont Electric Power Company, Inc. ("VELCO") had not obtained a municipal zoning permit. The Court held that local 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 statewide service. While Section 248 requires due consideration be given to recommendations of municipal planning bodies, these recommendations are advisory and not controlling on the Board. In the absence of clear and explicit legislative authority, the Court would not construe the above statutory provisions in any manor that would give the municipality the power to overrule a decision by the Board with respect to a decision it had made approving the transmission line. Based on this logic the Court ultimately held that VELCO was not required to secure a zoning permit from the City of South Burlington for the facilities covered by the certificate of public good issued under Section 248. Id. 447 - 448; 344 A.2d 24 - 25.

Based on the above, it is our conclusion that the Vermont Public Service Board must consider the recommendations of the Bennington Planning Commission and Bennington Selectboard. This could include their expressions of opinion regarding compliance with the Town Plan and zoning requirements. The Board is not bound by their input, however, and may overrule them if it believes it is appropriate in the issuance of the certificate of public good based on other requirements of 30 V.S.A. §248.

Jon S. Readnour, Esq.
READNOUR & BARONE
225 South Main Street
Rutland, Vermont 05701

(802) 775-9886

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