Background
Apple Hill Solar LLC has pursued a proposed solar electric-generation facility in Bennington, Vermont since 2014, when the Public Utility Commission (PUC) awarded it a standard-offer contract. Under Vermont law, a standard-offer recipient must achieve “commissioning” — putting the facility into operation — within two years, subject to extensions, and must first obtain a certificate of public good (CPG) from the PUC before breaking ground. Apple Hill’s CPG application set off years of litigation, producing three prior Vermont Supreme Court decisions between 2019 and 2023, the last of which (Apple Hill III) affirmed the PUC’s final denial of the CPG in October 2023.
With no CPG and no prospect of construction, Apple Hill nonetheless sought repeated extensions of its commissioning deadline. After the PUC dismissed its request for a fifth extension in May 2024 and denied reconsideration in October 2024, Apple Hill appealed. It then filed a separate petition for a sixth extension, which the PUC also denied in November 2024. The two appeals were consolidated before the Vermont Supreme Court.
While the consolidated appeals were pending, Apple Hill filed a motion for relief from judgment with the PUC in May 2025, asking the agency to reconsider its orders on the fifth and sixth extension requests. The PUC denied the motion, concluding that under Kotz v. Kotz, 134 Vt. 36 (1975), it lacked jurisdiction to revisit orders that were already on appeal to the Supreme Court absent a remand. Apple Hill then appealed that denial, generating the instant case.
The Court’s Holding
The three-justice panel dismissed the appeal as moot without reaching the merits. In March 2026 — after briefing in this appeal was complete — the Vermont Supreme Court issued Apple Hill IV (2026 VT 8), resolving the consolidated appeals by affirming the PUC’s dismissal of the fifth extension request, denial of reconsideration, and denial of the sixth extension request.
The court applied the established rule that a case becomes moot, and the court loses jurisdiction, when there is no longer an actual controversy or the parties no longer have a legally cognizable interest in the outcome. Even if a case originally presented a live controversy, it must remain live throughout the appellate process for the court to act. Here, Apple Hill’s theory was that the PUC had authority to entertain the relief motion and, if the agency signaled a willingness to grant relief, Apple Hill could then seek a remand from the Supreme Court. That procedural pathway was closed once Apple Hill IV affirmed the PUC’s extension denials on the merits.
Because the court could no longer grant effective relief — the underlying extension orders having been definitively resolved — the controversy evaporated and the appeal was dismissed.
Key Takeaways
- Under Vermont’s Kotz doctrine, a lower tribunal generally lacks jurisdiction to reconsider an order that is pending on appeal, absent a remand from the appellate court.
- An appeal over a procedural/jurisdictional ruling by a lower tribunal can be mooted when the appellate court separately resolves the underlying substantive controversy before deciding the procedural appeal.
- Vermont’s mootness doctrine is constitutionally grounded: the Vermont Constitution limits courts to deciding actual, live controversies between adverse litigants, and that requirement must be satisfied throughout the appellate process, not only at the outset.
- This is an unpublished three-justice panel decision and carries no precedential weight before any Vermont tribunal.
Why It Matters
The Apple Hill Solar saga — now spanning at least four Vermont Supreme Court decisions over seven years — illustrates the compounding procedural complexity that can arise when a renewable-energy developer pursues extensions of a commissioning deadline after being denied the underlying permit needed to build. Practitioners representing standard-offer contract holders should note that the Kotz jurisdictional bar is real: a motion for relief from judgment filed with the PUC while related orders are on appeal will not be entertained unless the Supreme Court remands for that purpose.
More broadly, the decision is a reminder that creative procedural moves designed to preserve optionality — filing a relief motion in hopes of setting up a future remand request — can be rendered moot by the ordinary progress of appellate litigation. When the court resolves the underlying appeals, any satellite appeal tied to that controversy falls with it.