Carmen Miranda in a towering
fruit hat.

By: Elizabeth Kruska 

SCOV brought us two opinions on the Friday going into Labor Day weekend. I have a weird little bubble of time between hearings today, which turned out to be the right amount of time to get these done.

 

The first of these that I’ll tackle is In re Petition of Industrial Tower and Wireless LLC, 2026 VT 40. Industrial Tower applied for a permit to put up a telecommunications tower near Lake Willoughby. I very much like the company name “Industrial Tower.” It has the same mid-Century, slightly dystopian quality as the name International Shoe, and it delights me. (I assume if you are reading this blog you know what International Shoe is, and you might also be a little bit worried about me right now.)

 

Anywhoo, International Tower filed with the Public Utilities Commission (PUC) for permission to put up a tower. The PUC set a deadline for public comment, motions to intervene, and hearing requests. On the day of the deadline, some neighbors to the proposed tower sought to intervene, and the Town Planning Commission (TPC) also filed a comment. Seven months later the TPC filed to intervene. The PUC denied this because it was too late. The TPC moved for reconsideration and the PUC upheld its earlier denial. Industrial Tower then sought to have any comments made after the deadline precluded from consideration. This would exclude several comments that were decidedly anti-tower. A hearing was held, and the tower was approved. The neighbors – the ones who intervened in time – sought reconsideration, which was denied. Then they appealed. SCOV affirmed.

 

First, the neighbors tried to say the PUC should not have excluded the comments made after the deadline. SCOV said the neighbors lacked standing to make this argument, which was effectively a third-party standing argument. The TPC and late commenters missed their chance. They may have suffered some injury, but it wasn’t the kind of injury that the neighbors could make on their behalf. The neighbors weren’t authorized by the TPC or the Town to make arguments on their behalf, or to somehow suggest the Town wasn’t able to assert its own rights. While they had an interest, they couldn’t make someone else’s argument. 

 

The neighbors also tried to argue that regardless of the above, the PUC erred in finding the tower didn’t violate the Town’s Town Plan. The problem for the neighbors is that this is reviewed for clear error, which is a high burden. Since there was a hearing and the PUC made findings based on the evidence before it, including considering the Town Plan, SCOV isn’t going to reverse. There’s quite a bit more to it than this, and it’s interesting, so go read it.

 

The neighbors’ last argument has to do with aesthetics. They argue the PUC should have considered the neighbors’ views of the tower in its analysis. For sure, telecommunications towers are increasingly important in how we live. But they aren’t especially attractive, and they can disrupt otherwise lovely views and landscapes. Here, too, SCOV uses a clear error analysis. By statute, such a facility cannot have an undue adverse effect on the landscape. If a proposed project will have an effect on the landscape, there needs to be further analysis about whether it violates clear written standards on aesthetics, it can’t offend the sensibilities of an average person, and the applicant must seek to mitigate the impact. SCOV finds the PUC had a hearing and considered lots of evidence, and that its findings were well-supported by the evidence.

 

So – affirmed.

 

+++

 

Up next is State v. Jordan Lawyer, 2026 VT 42. This was an interlocutory appeal in a serious criminal case. And it’s a little bit Sixth Amendment and a little bit Fifth Amendment.  

 

Briefly, Defendant is charged with multiple various counts involving murder and other offenses for allegedly attacking his parents with a baseball bat and then fleeing. There was apparently concern about his competence to stand trial, so the court ordered a competency evaluation. While defendants are presumed to be competent, if they are not competent they cannot be tried. The defense attorney quite wisely sought to attend the competency evaluation with their client. The evaluator refused to allow the attorney in the room, citing that third party presence would violate the copyright of the test, and also the evaluator’s ethics. 

 

The defense lawyer objected, noting this was a critical stage in the proceeding, so the defendant has a right to counsel. The State said it’s not. The trial court agreed and barred the defense lawyer from being in the evaluation with the defendant. The defendant wisely appealed. SCOV agreed with the trial court and affirmed.

 

SCOV points out that other courts have found that a defendant has the right to consult with counsel about the evaluation itself but not necessarily that there’s a right for the attorney to participate in the actual evaluation. The protection for the defendant is that if he or she is found not to be competent, they can’t be tried. SCOV agrees with this view. The evaluation process itself is not an adversarial process – that comes later with the actual competency hearing. There the defendant can call witnesses and can examine the evaluator. There’s also a concern that the fact of the lawyer being in the room could cause the defendant to behave differently than they otherwise would, which could disrupt the results.

 

SCOV says this isn’t meant to be a bright-line rule barring all lawyers from competency evaluations. Believe it or not, sometimes lawyers can be helpful! If a defendant has an especially good or trusting relationship with the lawyer, maybe the lawyer can help keep the evaluation on track. Or a defendant might just feel better about the situation if the lawyer is there and that might lead to a better-quality exam. 

 

To the extent there is a concern about using a defendant’s statements from a competency evaluation against them, SCOV reminds us that’s what the Fifth Amendment is for. SCOV also very clearly says that a defendant’s statements made during a competency evaluation can’t be used against them unless the defendant is apprised of their rights and knowingly waives them. If that’s to be the case, then it seems the defendant would have to be Mirandized, and would need (wait for it… wait for it…) counsel. 

 

So, SCOV affirms.