Opinion
2023-CA-0704-MR
03-22-2024
JOHN PITT AND STEVE BALDWIN APPELLANTS v. PUBLIC SERVICE COMMISSION OF KENTUCKY; HORUS KENTUCKY 1, LLC; AND STATE BOARD ON ELECTRIC GENERATION AND TRANSMISSION SITING APPELLEES
BRIEFS FOR APPELLANTS: David Broderick Bowling Green, Kentucky BRIEF FOR APPELLEE HORUS KENTUCKY 1, LLC: Randall L. Saunders Huntington, West Virginia BRIEF FOR APPELLEE PUBLIC SERVICE COMMISSION OF KENTUCKY AND KENTUCKY STATE BOARD ON ELECTRIC GENERATION AND TRANSMISSION SITING: Heather E. Strotman Temple Frankfort, Kentucky John E.B. Pinney Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM SIMPSON CIRCUIT COURT HONORABLE MARK A. THURMOND, JUDGE ACTION NO. 22-CI-00018
BRIEFS FOR APPELLANTS: David Broderick Bowling Green, Kentucky
BRIEF FOR APPELLEE HORUS KENTUCKY 1, LLC: Randall L. Saunders Huntington, West Virginia
BRIEF FOR APPELLEE PUBLIC SERVICE COMMISSION OF KENTUCKY AND KENTUCKY STATE BOARD ON ELECTRIC GENERATION AND TRANSMISSION SITING: Heather E. Strotman Temple Frankfort, Kentucky John E.B. Pinney Frankfort, Kentucky
BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.
OPINION
COMBS, JUDGE
Steve Baldwin and John Pitt (Baldwin and Pitt) appeal an order of the Simpson Circuit Court affirming a final order of the Public Service Commission's State Board on Electric Generation and Transmission Siting (the Siting Board). Upon its review of the administrative decision, the circuit court determined that the agency did not act arbitrarily or outside the scope of its authority and that it had not applied the law incorrectly. After our review, we affirm.
Horus Kentucky 1, LLC (Horus) proposed to build a solar photovoltaic electric generating facility on its property in Simpson County. In July 2021, it filed an application for a construction certificate with the Siting Board. As part of its application, HK1 submitted an economic impact analysis, a site assessment report, and a property value impact study.
Pitt and Baldwin petitioned the Siting Board to intervene in the proceedings, and their motion was granted. Pitt and Baldwin requested and received a public hearing on Horus's application. The hearing was scheduled for November 15, 2021, at the Public Service Commission offices in Frankfort.
In September, Horus filed revisions to its economic impact analysis.
It also submitted a sound level assessment report; a transportation effect and route evaluation report; a property value impact study; zoning regulations for the City of Franklin and Simpson County; and its conditional use permit applications and exhibits. The Siting Board retained Harvey Economics to perform an independent review of Horus's proposed facility and application. Harvey Economics provided a written report to the Siting Board.
The Siting Board's public hearing lasted approximately two and-one-half (2½) hours. It heard testimony from many interested parties, including Baldwin and Pitt. Thereafter, Baldwin and Pitt filed a post-hearing memorandum.
The Siting Board also received and considered public comments of three adjoining property owners. These property owners expressed concern about the proximity of the proposed facility to local cemeteries.
On December 29, 2021, the Siting Board entered its order granting Horus's application for a certificate of construction for the proposed facility. The Siting Board's Final Order included findings and conclusions with respect to each factor enumerated by the provisions of KRS 278.710(1). Additionally, the Siting Board imposed thirty-two (32) mitigation measures and conditions upon construction of the facility.
Kentucky Revised Statutes.
In January 2022, pursuant to the provisions of KRS 278.712, Baldwin and Pitt filed an action against the Siting Board in Simpson Circuit Court requesting that its final order be vacated on grounds that it was arbitrary, capricious, or otherwise unlawful or unreasonable. Baldwin and Pitt alleged that the evidence of record confirmed that the construction certificate should not have been granted for numerous reasons:
including but not limited to the fact that the property around the proposed site is currently used for agricultural
purposes and the solar panels will be clearly visible from the surrounding properties; the proposed site will not be in conformity with the rest of the countryside; there is no way that the solar farm can be completely concealed with vegetation; the proposed site will transform a quaint and quiet agricultural neighborhood to an industrial powerplant zone; the property value of surrounding acreage will be decreased; the existing roadways do not have sufficient space to allow construction vehicles to access the proposed solar farm site; the proposed site does not make adequate considerations for burial grounds and cemeteries; and it is still in question whether the proposed site complies with the applicable planning and zoning regulations in Simpson County, Kentucky.
The Siting Board and Horus denied that the administrative decision was unsupported by substantial evidence and observed that the circuit court could not substitute its judgment for that of the administrative agency. Pursuant to statute, and on behalf of the Siting Board, the Public Service Commission certified and filed with the circuit court two flash drives that contained an electronic copy of its official administrative record of the proceedings.
Following a period of briefing, the matter was submitted to the circuit court. Baldwin and Pitt argued that the order of the Siting Board was arbitrary, capricious, and unsupported by substantial evidence because the Siting Board "did not adequately consider the impact of the solar farm on scenic surroundings, property values, noise levels, surrounding roads, and the economy." The Siting Board responded that it "conducted a robust review of the application and created a substantial record that demonstrates the decision to grant the certificate to construct was not arbitrary or capricious because it is supported by substantial evidence." In reply, Baldwin and Pitt argued that the findings of the Siting Board were "contrary to evidence on the record."
The circuit court surveyed the evidence and considered the applicable law. It concluded that the Siting Board correctly based its decision upon the factors set out in KRS 278.710(1) and that its final order was supported by substantial evidence. The circuit court denied the subsequent motion of Baldwin and Pitt to alter, amend, or vacate, the order. This appeal followed.
Baldwin and Pitt "do not argue that the Siting Board and Simpson Circuit Court did not have the benefit of voluminous records, data, testimony, and reports." Instead, "they contend that the sheer volume of information presented is not enough to satisfy the substantial evidence requirement." They challenge evidence concerning the efficacy of vegetative buffers and the use of setbacks -relying instead on their own testimony indicating that the facility would significantly alter the agricultural character of the area and fail to conform to the countryside. They argue that the Siting Board received no evidence "as to the solar farm's conformity with its surroundings." They also challenge the value of reports relied upon by the Siting Board; the substance of an interview with the county's property valuation administrator; the existence of evidence related to noise levels associated with operation of the facility; the interpretation of a report related to vehicular access to the construction site; and, finally, the quality of an economic impact analysis. They contend that the Siting Board's decision to grant a certificate of construction "was wholly unsupported by substantial evidence."
The arguments advanced by Baldwin and Pitt rely exclusively upon the character and utility of the evidence presented. Their contentions require this Court to evaluate the evidence of record. However, the record on appeal consists of a single DVD recording of two motion hearings and fewer than three hundred (300) pages (bound in two slim volumes) of the pleadings, motions, memoranda, and orders filed in the circuit court. We have received no record of the proceedings conducted before the Siting Board. Nor do we have any reports, studies, transcripts, analyses, testimony, or correspondence submitted to the agency. The parties have not addressed this omission from the record as permitted by our Rule of Appellate Procedure (RAP) 25, and we are not at liberty to consider any claim or contention which is based upon a portion of the record below that has not been made part of the record on appeal. RAP 25(B).
We decline to request that the record be supplemented as permitted by RAP 25(D)(2). Under these circumstances, the missing record is presumed to support the decision of the circuit court. Commonwealth v. Thompson, 697 S.W.2d 143 (Ky. 1985).
Consequently, the order of the Simpson Circuit Court is affirmed.
ALL CONCUR.