37898 - dms.puc.hawaii.gov

48
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF HAWAII In the Matter of the Application of PETER and ANN BOSTED DOCKET NO. 2016-0224 Complainants, vs. Respondents. 37898 ORDER NO. ) ) ) ) HAWAIIAN ELECTRIC COMPANY, HAWAII ELECTRIC LIGHT COMPANY, (1) GRANTING IN PART AND DENYING IN PART INTERVENORS' MOTION TO DISMISS FORMAL COMPLAINT; (2) GRANTING IN PART AND DENYING IN PART COMPLAINANTS' MOTION TO TAKE NOTICE OR OTHERWISE AUGMENT THE RECORD; AND (3) ADDRESSING PROCEDURAL STEPS ) ) ) ) ) ) ) ) INC., and ) INC.

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Page 1: 37898 - dms.puc.hawaii.gov

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF HAWAII

In the Matter of the Application of

PETER and ANN BOSTED DOCKET NO. 2016-0224

Complainants,

vs.

Respondents.

37898ORDER NO.

))))

HAWAIIAN ELECTRIC COMPANY,HAWAII ELECTRIC LIGHT COMPANY,

(1) GRANTING IN PART AND DENYING IN PART INTERVENORS' MOTION TO DISMISS FORMAL COMPLAINT; (2) GRANTING IN PART AND

DENYING IN PART COMPLAINANTS' MOTION TO TAKE NOTICE OR OTHERWISE AUGMENT THE RECORD; AND (3) ADDRESSING PROCEDURAL STEPS

) ) ) ) ) ) ))

INC., and ) INC.

Page 2: 37898 - dms.puc.hawaii.gov

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF HAWAII

In the Matter of the Application of

PETER and ANN BOSTED DOCKET NO. 2016-0224

ORDER NO. 37898Complainants,

vs.

Respondents.

this Order, the Public Utilities CommissionByt 1("Commission") : (1) grants in part and denies in part Intervenors

DIVISIONex

LLC,LLC,LLC,

LLC,LLC,LLC,

KONAKONA

))) ) )))))))))

KONA 50-2 3 KONA 50-27KONA 50-31SOUTH POINT FIT

KONA 50-26 LLC, KONA 50-30 LLC, KONA 50-35 LLC,

(collectively theThe Solar Project Owners were granted

Hawaiian Electric Company,(collectively

thean

("HRS")

(1) GRANTING IN PART AND DENYING IN PART INTERVENORS' MOTION TO DISMISS FORMAL COMPLAINT; (2) GRANTING IN PART AND

DENYING IN PART COMPLAINANTS' MOTION TO TAKE NOTICE OR OTHERWISE AUGMENT THE RECORD; AND (3) ADDRESSING PROCEDURAL STEPS

ADVOCACYto

Inc.the

OFofficio pa r ty, § 269-51 and

Hawaii Administrative Rules ("HAR") § 16-601-62(a); and KONA 50-18LLC, KONA 50-19 LLC, KONA 50-20 LLC, KONA 50-21 LLC, KONA 50-22 LLC,

KONA 50-25 LLC,50-29 LLC,50-34 LLC,

FIT TWELVE LLC

^The Parties to this proceeding are: Peter Bosted and ANN BOSTED ("Complainants" or the "Bosteds");and Hawaii Electric Light"Hawaiian Electric" orCONSUMER ADVOCACY ("Consumerpursuant to Hawaii Revised

Company, Inc."Respondents");Advocate") , Statutes

KONA 50-24KONA 50-28 KONA 50-33LLC, and HAWAII

"Solar Project Owners").intervenor status in this proceeding. See Order No. 34520"Addressing Motions to Intervene and Adopting a Procedural Schedule,"

HAWAIIAN ELECTRIC COMPANY, INC., and HAWAII ELECTRIC LIGHT COMPANY, INC.

Page 3: 37898 - dms.puc.hawaii.gov

Motion to Dismiss Formal Complaint^; (2) grants in part and denies

the Record; and (3) addresses the proceduralnext steps,

including a prehearing conference on the Bosted's remaining count.

4, and 6 of

the formal complaint and 5 for hearing beforesets Count

the Commission.

I.

RELEVANT BACKGROUND

A.

The Bosteds' Complaint and Respondents' Answer

3On August 29, 2016, the Bosteds filed a formal complaint

with the Commission against Respondents regarding

27 Feed-in-Tariff ("FIT") solar projects

2z No.

2 ''on

3"

and

2016-0224 2

("OrderProcedural

347082017

IntervenorsFormal Complaint,November 12,

Orderfiled July 25,

Kona 50-18,Memorandum in

2019 ("Motion to Dismiss").

to Dismissfiled

In so doing, the Commission dismisses Counts 1,

Chronology of Events Relating to the Ocean View Project and FIT Program; Statement of Remedial Action Desired; Schedule of Supporting Documents; Certificate of Service; Complaint Verification," filed August 29, 2016 ("Complaint").

LLC et al. MotionSupport of Motion,"

filed May 2, 2017"Adopting a Modified ("Order No. 34708") .

2, 3,

No. 34520");Schedule,"

in part the Bosteds' Motion to Take Notice or Otherwise Augmsent

Page 4: 37898 - dms.puc.hawaii.gov

("FIT Projects") that slated for construction in theare

Ocean View subdivision on the island of Hawaii."^

Briefly, the Bosteds assert that certain FIT permits

should not have been issued for the FIT Projects. The Bosteds

request that the Commission remove the FIT Projects from the FIT

More specifically, the Complaint asserts

the following alleged misconduct:

1. Misuse of Zoning Laws ("Count 1");

2 . Insufficient Site Control ("Count 2");

3. Project Not Shovel Ready ("Count 3");

4 . The FIT Permits Were Improperly Traded ("Count 4");

5. the Competitive Bidding Process

No Benefit to People and Ratepayers ("Count 6")6.

The Complaint's primary focus is that that the

FIT Projects should be considered together as a single project.

rather than individual proj ects, and, when considered inas

^See Complaint at 2-5.

^Complaint at 31.

Tee generally Complaint.

2016-0224 3

^Complaint at 3-5. In what appears to be a typographical error, the Complaint repeats the number "5" for Count 6.

Circumvention of("Count 5"); and

FIT permits.^

the aggregate, the FIT Projects exceed the threshold allowed tor

program's active queue.

Page 5: 37898 - dms.puc.hawaii.gov

B.

Hawaiian Electric's Answer

On October 7, 2016, the Hawaiian Electric filed an answer

to the Complaint,® which asserts that all applicable rules, orders.

at the time of its respective application. and that clustering

separate projects by different developers is not prohibited by the

C.

Solar Project Owners' Motion to Dismiss

The Solar Project Owners sought, and granted.were

and filed their Motion to Dismiss

November 12, The Motion Dismiss, brought undertoon

HAR §§ 16-601-41, 42, and 69, asserts the Complaint fails to state a

claim upon which relief can be granted and fails to meet the pleading

Despite being styled as

®See Answer at 15-18.

^®0rder No. 34520.

^^See Motion to Dismiss.

2016-0224 4

2019.

intervention in this proceeding,!®

standards established by HAR § 16-601-67.12

FIT Program?

and laws were followed, that each of the FIT Projects was viable

i^Motion to Dismiss at 1-2, 39.

^"Hawaiian Electric Company, Inc. and Hawaii Electric Light Company, Inc.'s Answer to Complaint; Exhibits 1-2; and Certificate of Service," filed October 7, 2016 ("Answer").

Page 6: 37898 - dms.puc.hawaii.gov

to consider the evidentiary record, which they claim establishes

•i\ 3"that there has been no violation of law whatsoever.

Specifically, the Solar Project raise theOwners

following challenges to the counts alleged in the Complaint:

1.

2 .

3.

4 . Count 4

17

5. 5 of

i^Motion to Dismiss at 40.

i^Motion to Dismiss at 44-48 .

^^Motion to Dismiss at 49-56.

^^Motion to Dismiss at 56-76.

^^Motion to Dismiss at 76-82.

2016-0224 5

The FIT Permits Were Traded: Count 4 must be dismissed because it does not articulate any violation of law or regulation and because the Solar Project Owners abided by all laws and regulations governing transfers and/or assignments of FIT permits.

Count 2 - Lack of Site Control: Count 2 msust be dismissed because the Bosteds misunderstand the FIT Program^s site control requirements and the Solar Project Owners fully complied with all site control requirements.^^

Count 1 - Misuse of Zoning Laws: Count 1 fails because the Bosteds do not allege which zoning laws in particular were violated and because the evidence establishes that no zoning laws were violated.

Count 5 - Circumvention of the Competitive BiddingProcess: Count 5 fails because, by virtue of beingtwenty-six (26) individual projects each with a net output of no more than one percent (1%) of a utility's

Count 3 - Project Not Shovel Ready: Count 3 fails because the Bosteds do not articulate what law or regulation was violated and because the Solar Project Owners complied with all relevant laws and regulations.^®

a motion to dismiss, the Solar Project Owners ask the Commission

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the competitive bidding rules at

6. Count

D.

the Motion to DismissResponses to

On November 15, 2 018, Hawaiian Electric submitted a

response indicating "that they do not oppose the Motion to Dismiss

"20

On November 18, 2019, the Bosteds filed an opposition to

The Bosteds' Opposition reiterated their

position that the primary issue in this Docket is the Solar Project

^^Motion to Dismiss at 82-90.

i^Motion to Dismiss at 92-100.

2016-0224 6

totalissue

actionhave

15

HARforin

firm capacity,do not apply.

6 - No Benefitdismissed becausecause ofratepayersFIT program.

the Motion to Dismiss.-^

20Letter From: K. Katsura To: Commission Re: Docket No. 2016-0224 Bosted Formal Complaint; Hawaiian Electric Company, Inc. and Hawai’i Electric Light Company, Inc.; Response to Intervenors' Motion to Dismiss Formal Complaint, filed on November 15, 2019("Companies' Letter").

and becausefrom the

to Ratepayers: Count 6 must be § 16-601-67 does not provide a such a grievancefact benefitted

-^"Complaint against Hawai'i Electric Company (HECO) as Administrator of the Feed-in-Tarif f (FIT) Program and Its Subsidiary Company, Hawai'i Electric Light Company (HELCO) for not Holding the Developers of a 6.5 Megawatt Solar Project in Ocean View in Compliance with the FIT Program; Complainants' Statement of Reasons in Opposition to Intervenors' Motion to Dismiss Formal Complaint," filed on November 18, 2019 (the "Opposition").

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Owners' attempts "to game the FIT Program" and circumvent the

The Bosteds did not raise any

additional legal arguments, but stated that equitable principles

required Hawaiian Electric to stop the FIT process when they

suspected the Solar Project Owners were attempting to circumvent

On November 19, 2019, the Consumer Advocate indicated it

E.

Order No. 36888

While the Motion to Dismiss was pending, the Commission

instructed the Parties to submit briefing "addressing whether the

[FIT Projects] should be considered individually or in the

aggregate for purposes of determining whether they comply with the

[C]ommission's directives concerning both the [FIT] Program and

the Competitive Bidding Framework [,]" well ofsetas as a

2 -Opposition at 3.

24 " of to

LLC,

2016-0224 7

50-2350-2750-31

IntervenorsKona 50-21Kona 50-25Kona 50-29Kona 50-34

LLC,LLC,LLC,LLC,LLC,

LLC,LLC,LLC,

DivisionKona 58-18,Kona 50-22Kona 50-26Kona 50-30Kona 50-35Motion to Dismiss Formal Complaint," filed on November 19,

Consumer Advocacy's ResponseKona 50-19 LLC,KonaKonaKonaSouth Point FIT

LLC,LLC,LLC,LLC,

Kona 50-20 LLC,Kona 50-24 LLC,Kona 50-28 LLC,Kona 50-33 LLC,

and Hawaii FIT Twelve LLC's2019.

Commission requirements.^3

Competitive Bidding Process.

was not taking a position on the Motion to Dismiss.

Page 9: 37898 - dms.puc.hawaii.gov

doing so, the Cornrnission observed thatIn

"[h]aving reviewed the materials previously submitted in this

docket. including the prefiled testimony of the Parties,

the [C]ommission observes that the to make a

"26determination on these issues do not appear to be in dispute.

In particular. the Commission ordered the Parties addressto

how previous Commission decision referred heretoa as

The Parties were unable to agree upon a joint statement

of facts,

also,

s^Order No. 36888 at 21-22. The 2011 Monet Order is discussed, infra.

2016-0224 8

'Cpy Order No. 37033, "Establishing Furter Procedural Deadlines," filed on March 9, 2020 at 4 ("Order No. 37033").

2019," filed January 10,37033, "Establishing Further2020 ("Order No. 37033").

stipulated facts.

"Complai n ts Test imony; 2017; Letter From:- Formal Complaint

Direct Testimonies,of Kevin

LLC,

Order No. 3 6888 at 2. Sepand Certificate of Service," filed September 1,B. Hiyane To: Commission Re: Docket No. 2016-0224of Peter Bosted and Ann Bosted;filed September 15, 2017; "Testimony of Kevin White,Authorized Representative of Intervenors Kona 50-18 LLC, et al.; Intervenors Exhibit 1-4," filed September 19, 2017; and "RebuttalTestimony of Peter and Ann Bosted," filed December 1, 2017.

^^Order No. 36888, "Instructing the Parties to Submit Statements of Position and a Joint Statement of Facts," filed December 17, 2019 ("Order No. 36888"). The procedural deadline by which to submit briefing set forth in Order No. 36888 was subsequently modified by Order No. 36944, "Granting the Complaints' Motion for Enlargement of Time, Filed On December 27, 2019," filed January 10, 2020("Order No. 36994"), and Order No.Procedural Deadlines," filed March 9,

the "2011 Monet Order" affected the analysis in this case.^^

and the Bosteds and Hawaiian Electric filed letters

facts necessary

indicating they would not be filing a joint statement of facts.

Page 10: 37898 - dms.puc.hawaii.gov

Even though no joint statement of facts was filed, the Bosteds still

filed a Statement of Position on February 18,

In response, the Commission issued Order No. 37033, which instructed

the Parties that. to the extent they could not agree about a joint

stipulated statement of facts. each fileto a separatewas or

partial of f ac t s, and established otherseparate statement

procedural deadlines.

simplify the Commission orderedTo matters,

Hawaiian Electric and the Solar Project Owners to

writing whether they agree or disagree with each paragraph and

First SOP.31exhibit of the Bosteds' The Commission then again

ordered the Parties to file a complete or partial Joint Stipulated

of Facts by March 27, 2020, and file all replyStatement to

of position and reply of position bystateiTients statements

2020.32April 20,

39see Order No. 37033 at 5.

320rder No. 37033 6-9.at

3i0rder No. 37033 7.at

Order No. 37033 7-8.at

2016-0224 9

2020 ("First SOP")

indicate in

32.

Page 11: 37898 - dms.puc.hawaii.gov

F.

On January 26, 2021, the Bosteds submitted a letter which

included a request for the Cornrnission to take judicial notice of

33what they asserted was newly discovered evidence. Specifically,

they seek official notice of a federal district court opinion for

the Southern District of New York, and of four cancelled checks.

The Solar Project Owners opposed the motion for judicial notice on

2021.34February 3,

II.

RELATED COMMISSION PROCEEDINGS

A.

Docket No. 03-0372 ("The Competitive Bidding Framework'')

Decision and Order 23121, filedBy No. on

December 8, 2006 in Docket No. 03-0372, the Commission adopted the

Framework for Competitive Bidding to govern competitive bidding

Motion Take Otherwise Augmentto

2016-0224 10

The Bosteds' Motion to Take Notice or Otherwise Augment the Record

3^ See Bosteds'the Record.

33 Letter From: P. Bosted and A. Bosted To: Commission Re: Docket Numsber 2016-0224 - Conplaint against HECO as administrator of the FIT Program; Complainants' reeguest for judicial notice or inclusion in the record of additional, newly discovered documentation of the SPI project, filed on January 26, 2021 (Bosteds' "Motion toTake Notice or Otherwise Augment the Record").

Notice or

Page 12: 37898 - dms.puc.hawaii.gov

for acquiring new energy generation in Hawaii (the "Competitive

Pursuant to the Framework,

competitive bidding is the required mechanism for acquiring future

generation resource or block of generation resources, subject to

36certain conditions and exceptions.

As provided by the Framework, competitive bidding is not

required for "generating units with output availablenet to

of 1% less total firm capacity.or

including that of independent power producers, or with a net output

"37

B.

Docket No. 2008-0273 ("The FIT Tier 2 Program^

The FIT program has evolved over number of years and was

designed facilitate the acquisition and development ofto

renewable energy in Hawaii. As relevant here, for renewable energy

has approved "Tier 2" The tariffs for theProgram.a

2^See generally. Framework.

2016-0224 11

^^Docket No.2003-0372, Decision and Order No. 23121, Exhibit B, "Framework for Competitive Bidding," filed on December 8, 2006.

Bidding Framework" or "Framework").

Tier 2 Program include applicable pricing, terms and conditions,

^^Fraraework at 5, Part II.A.3.f.

of 5 megawatts ("MW") or less, whichever is lower

size, the Commissiongenerators of up to 500 kilowatts ("kW") in

Page 13: 37898 - dms.puc.hawaii.gov

standard form of and queuing and interconnectioncontract,

C.

Docket No. 2011-0053 (The 2011 Monet Order")

The Commission has described Docket No. 2011-0053 in detail

in prior orders in this proceeding. and that description is

a developer named Sam Monet sought a declaratory ruling from the

Commission regarding his plan to subdivide one big lot into 25 smaller

lots and put an individual project each meeting the FIT Tier 2

requi rement s The Commission determined

that Mr. Monet's proposal was improper.

The Commission explained that "Petitioner cannot avoid

the competitive bidding requirements by simsply subdividing

"41his proposed project into separate 500 kW generating units.

the proposed proj ect closer inBecause concept towas

2 00 9

290rder No. 36888 at 1-4.

^^2011 Monet Order at 18.

2016-0224 12

see alsoFiled September 25,

^'^Docket No. 2011-0053, Decision and Order, filed April 28, 2011 at 15-20 (the "2011 Monet Order").

38see Schedule Fit Tier and Tier 2, Sheet Nos. 78-78; Docket No. 2008-0273, Decision and Order,at 1-5.

incorporated here by reference.^^

on each contiguous lot.‘^®

procedures for the FIT program.

Briefly, in Docket No. 2011-0053,

Page 14: 37898 - dms.puc.hawaii.gov

single 25 proj ect opposed smallerMW toas many

individual proj ects f the Commission found that the

Competitive Bidding Framework applied.

111.

STATEMENTS OF POSITION

While the Parties did submit a joint partial stipulated

statement of facts. the extent ot the material stipulations was

limited, and the Parties primarily recited the posture of other

dockets.

which are summarized below.

A.

The Bosteds argue that the record establishes that the

predecessors as two aggregated projects by two different entities.

with each project exceeding the threshold wattage allowed under

^22011 Monet Order at 22.

2016-0224 13

^^See "Joint Letter From: B. Hiyane, B. Nakamura, and A. Bosted To: Commission Re: Bosted vs. Hawaiian Electric Company, Inc. et al.. Docket No. 2016-0224; Submission of Partial Joint Stipulated Statement of Facts pursuant to Order No. 37033 by Respondents, Intervenors, and Complainants"; filed March 27, 2020.

The Bosteds' Statement of Position

FIT Projects were originally conceived by the Solar Project Owners’

The Parties also submitted respective statements of

Page 15: 37898 - dms.puc.hawaii.gov

44the FIT Tier 2 Prograrn. Therefore, they assert, the projects should

not be allowed under the FIT Tier 2 Program using the same reasoning

45the project in the 2011 Monet Order was excluded. The Bosteds argue

that the Competitive Bidding Framework must be used to acquire a

"future generation resource or block or generation resources" that

The Bosteds claim the

reasoning from the 2011 Monet Order, that the projects were so similar

to a single 25 MW project that they should be treated as such.

B.

Hawaiian Electric's Statement of Position

Hawaiian Electric asserts that the 2011 Monet Order is

inapplicable the Proj ects, and therefore that theto FIT

48FIT Projects must be considered as individual distinct projects.

^-Bosteds' 26.SOP at

^^Bosteds' 26-27.SOP at

^^Bosteds' 26-27.SOP at

48"

2016-0224 14

Respondents Hawaiian Electric Company, Inc. and Hawai’i Electric Light Company, Inc.’s Statement of Position," filed on April 13, 2020 at 21-22 ("Conpanies' SOP").

Statement of Position in Response to the 36888 with Exhibits," filed on April 13, 2020

SOP").

one single project.

exceed the FIT Tier 2 wattage threshold.^®

applies here, and the FIT Projects should similarly be treated as

"Complainants'Commission's Order No. at 26 ("Bosteds'

Page 16: 37898 - dms.puc.hawaii.gov

Hawaiian Electric claims that the facts yielding the

2011 Monet Order are distinguishable from the facts of this Docket

such that the

The Companies point to the following factual differences

to support their position:

C.

The Solar Project Owners' Statement of Position

The Solar Project Owners join with Hawaiian Electric in

arguing that the 2011 Order does apply to theMonet not

The Solar Project Owners begin their analysis by

noting that the 2011 Monet Order predates the approval of the

52FIT Tier 2 Program by about eight months. They then point out

^^Companies' SOP at 23.

^^Companies' SOP at 22-24.

51"

Owners' SOP at 2.

2016-0224 15

The 2011 Monet Order involved one single site that was to be subdivided into distinct but contiguous parcels, whereas the FIT Projects are spread out in three separate subdivisions and not entirely contiguous.

The individual projects involved in the 2011 Monet Case were all owned by the same entity, whereas the FIT Projects have distinct owners; and

Intervenors Kona 50-18,and Hawaii FIT Twelve LLC'sApril 13, 2020 at 2 ("Owners' SOP") .

FIT Projects.

LLC, et al., Statemsent of

apply.

reasoning behind the 2011 Monet Order does not

52,

South Point FIT LLC, Position," filed on

Page 17: 37898 - dms.puc.hawaii.gov

factual differences,

"backdoor attempt to squeeze into compliance with thecase as a

FIT Tier 2 Tariff. The primary distinction. according to the

Solar Project is that Monet' s projectsOwners, Mr. were on

contiguous parcels and therefore the definition ofmet 3.

all involve "separately

>> 55acquired site control for individual parcels of land[.]

This distinction, according the Solar Proj ectto Owners,

demonstrates that the intents were different in the case resulting

in the 2011 Monet Order and this Docket Mr. Monet's project was

improper because he sought to exploit a loophole and knew he was

in noncompliance with the FIT Tier 2 requiremsents. while the

FIT Projects are proper because the Solar Project Owners never

intended to violate the FIT Tier 2 requirements and complied with

the literal text thereof.

The Solar Project Owners also note that Mr. Monet had

amount of money. whereas the

^^Owners' SOP at 6.

"^Owners' SOP at 7 .

s^Owners' SOP at 7 .

^‘'Owners' SOP at 5-8.

2016-0224 16

consolidated proj ect.

The FIT Projects, by contrast.

not yet invested any substantial

characterizing the situation in the Monet

Page 18: 37898 - dms.puc.hawaii.gov

51Solar Project Owners have invested millions. This investment,

the Solar Project Owners say, is another distinguishing factor

between the Monet Case and this one, because the Owners' property

They argue that an agency

decision cannot be applied retroactively if applying the new rule

59to past conduct would effect a manifest injustice. In fact.

the Solar Project Owners believe that treating the FIT Projects as

one aggregate project "would effectively destroy all economically

beneficial use" of the land proposed for the

would constitute a regulatory taking in violation

of the Takings Clause of the U.S. Constitution.

The Solar Proj ect also that,Owners argue

unlike Mr. Monet, considering the FIT Projects individually would

62not result in a windfall for the Solar Project Owners.

^’Owners' SOP at 8.

^^Owners' SOP at 8-10.

5^0wners' SOP at 10.

®^0wners' SOP at 25.

^^Owners' SOP at 26-29.

®^0wners' SOP at 13-14.

2016-0224 17

FIT Projects

That, in turn.

and financial rights are at stake.

Page 19: 37898 - dms.puc.hawaii.gov

D.

The Consumer Advocate's Statement of Position

The Consumer Advocate asserts that the Commission should

"apply significant weight to [the 2011 Monet Order] when evaluating

"63the complaint in this proceeding. The Consumer Advocate notes

that, while there are differences between this case and the Monet

case, the underlying premise of there being multiple FIT projects

on the same circuit is not in the public interest and should be

64required to proceed under the Competitive Bidding Framework.

Thus, the Consumer Advocate concludes, applying the reasoning of

the 2011 Monet Order i.e., not allowing the FIT Projects to be

individually eligible for FIT Tier 2 "would be well supported

•I 65and in the public interest.

of Position,"Statement

s^CA'' s SOP at 9.

^-CAM s SOP at 10-11.

2016-0224 18

"Divisionfiled on April 13,

of Consumer Advocacy's2020 ("CA's SOP") at 9.

Page 20: 37898 - dms.puc.hawaii.gov

IV.

DISCUSSION

A.

Legal Standards

HAR § 16-601-69(a) allows a respondent to "file a motion

to dismiss a complaint because the complaint fails to state a claim

upon which relief can be granted or for other valid reasons."

Notably, that silent to whether parties grantedas

intervenor status like the Solar Project Owners -- may file a

motion to dismiss.

Under these unique circumstances, the Commission will look

6Sto the Hawaii Rules of Civil Procedure (the "HRCP"), for guidance

in order "to secure the just, speedy. and inexpensive determination"

67of this proceeding. Turning to the HRCP, the Commission observes

that the expressly contemplates msotions dismsiss byHRCP to

In support of the above, the Commission finds that under

these circumstances. does to prohibit thesense

Solar Project Owners -- who, by virtue of intervention, have been

granted full party status in this matter from raising genuine

^^See HAR § 16-601-1.

6'HAR § 16-601-1.

■'o/'HRCP 12 (b) (6) .

2016-0224 19

third parties, such as the Solar Project Owners.^®

section is

not make

Page 21: 37898 - dms.puc.hawaii.gov

legal and factual issues, particularly where their resolution may

and facilitate the expeditious and

While the Solar Project Owners styled their motion as

Motion to Dismiss under HAR § 16-601-69, they present substantial

factual analysis based on the evidentiary record developed in this

docket. Further, as noted by the Solar Project Owners themselves.

presented

"7ij udgment.

will treat the Motion to Dismiss as a motion for summary judgment and

apply the standards governing summary judgment, again turning to the

Summary judgment will be granted where the pleadings and

evidence show that there is no genuine issue of msaterial fact and

issues

^^tee generally Motion to Dismiss at 45-100.

■^^Motion to Dismiss at 35, n. 29 (quoting HRCP 12(b) .

7 See HRCP 56.

2016-0224 20

HRCP for guidance.

orderly resolution of this proceeding.

if, during a motion to dismiss, "matters outside the pleadings are

°®The Commission notes that it may bring a motion to dismiss formal complaints on its own motion. Docket No. 2015-0324, Decision and Order No. 33945, filed on Apr. 19, 2016 at 27 (available at 2016 WL 5630676); see also HAR § 16-601-67. Accordingly, even if the circumstances did not support turning to the HRCP and allowing the Solar Project Owners to file their Motion to Dismiss, the Commission could alternatively raise these issues under its own motion.

narrow the scope of issues

Under these particular circumstances, the Commission

the motion shall be treated as one for summary

Page 22: 37898 - dms.puc.hawaii.gov

When the non-movant bears the burden of proof at trial (or hearing.

as is the case with the Bosteds, the non-movants here), the moving

party must affirmatively "show the absence of any genuine issue as

facts. which. under applicable principles ofto

substantive law, entitles the moving party to judgment as a matter

of law. "^4

Therefore, be entitled j udgment,to to summary

element of the Bosteds' claim through evidence; or (2) demonstrate

75the Bosteds will be unable to carry their burden at the hearing.

B.

The Solar Project Owners' Motion to Dismiss

Because the Solar Project Owners have converted their

Motion to Dismiss to one for summary judgment, as discussed above,

Thronas, 107 Hawaii 48, 56, 689,V .

■^"^Ralston v. Yim, 129 Hawaii 46, 56, 292 P.3d 1276, 1286 (2013) .

'^Ralston, 129 Hawaii at 56, 292 P.3d at 1286.

2016-0224 21

■^■^Querubin697 (2005).

the moving party is entitled to judgment as a matter of law."^^

109 P.3d

the Solar Project Owners must either: (1) affirmatively negate an

all material

Page 23: 37898 - dms.puc.hawaii.gov

the Cornrnission does address their regardingnot arguments

75insufficient pleading.

The Solar Project Owners assert that each of the Bosteds'

six causes of action fail."^^ The Commission therefore addresses

the Bosteds' six under the summary judgmentcauses

standard with the Solar Project Owners bearing the burden of

showing the absence of any genuine issues of material fact as to

each. Each count is addressed in turn, below.

1.

Count 1 Misuse of Zoning Laws

The Bosteds complain that the Proj ects takeFIT

advantage of what they characterize as a "loophole" in the zoning

78laws on the Big Island. The Bosteds note that a bill to close

the loophole was introduced before the legislature (HB 2636),

79but that the bill was never passed.

'^Motion to Dismiss at 43-100.

^^Coraplaint at 3.

2016-0224 22

'^^Stee Andrade v. Cnty. of Hawaii, 145 Hawaii 265, 270, 451 P.3d 1, 6 (Ct. App. 2019) (requiring a tribunal faced with a motion to dismiss converted to a motion for summary judgment to consider not just the pleadings, but instead to "view the facts presented in the pleadings and the evidence submitted by the plaintiff" (emphasis in original)).

of action

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The Solar Project Owners assert the Bosteds have failed

to "allege specific violations of established zoning laws[,]" and,

"[m]oreoever, [that] the undisputed facts of this case establish

"SOthat there has been no violation of zoning laws.

The Commission agrees. Aside from referencing a bill.

that was not passed, the Bosteds have not pointed to a specific

violation of existing zoning regulation.statuteany or

Accordingly, the Commission finds that thi£> count tails as a matter

of law. Based on the above, the Commission grants the Motion to

Dismiss as to Count 1.

2 .

Count 2 Insufficient Site Control

The Bosteds assert that the FIT Projects should not be

lots"

"81"neither owned nor leased land when the permits were applied for.

They claim that the developer was merely in escrow to own the lots

in question. which is insufficient to meet what they assert is a

"fundamental requirement tor entering the FIT Queue" of having

the site of the proposed project.control over

^^Motion to Dismiss at 45.

siComplaint at 3.

^^Complaint at 3.

2016-0224 23

in the FIT queue because "the developer of the Ranchos

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Both the Solar Project Owners Electric

provide evidence that each of the FIT Projects have a letter of

intent and/or leasehold agreement sufficient to comply with the

The only evidence the Bosteds present

in response are assertions regarding their speculations about the

intent^^ (earlierletters of in their testimony. the Bosteds

indicated that they believe the site control requirement is "not

"85[an] effective means to ensure" project completion. Indeed,

while the Bosteds that the FIT Tier 2 procedures

require applicants demonstrate site ownership or control at the

8€time of application, they, themselves, acknowledge that a leasehold

Furthermore,

2017 at 36

^^Bosteds' Testimony at 32.

2016-0224 24

^^See Complaint at Attachment 2 (reflecting that site control docrunentation for FIT Tier 2 applicants can be established in one of three ways: ownership; leasehold interest; or a letter of intent comprising "an agreement in place with the Landowner to utilize the site for the purpose of installing generating equipment eligible for the Schedule FIT Agreement.").

s^Docket No. 2008-0273, Order No. 30457, "Clarifying certain FIT Administration Issues," filed June 22, 2012 at 4.

site control requirement.®^

^^Intervenors' Testimony at 4-5; Letter Froms: B. Hiyane To: Commission Re: Docket No. 2016-0224 - Formal Complaint of Peter Bosted and Ann Bosted; Direct Testimonies, filed on September 15, 2017 atTestimony of Amanda Lee 2-3 ("Respondents' Testimony").

are correct

and Hawaiian

agreement is not required to establish site control.

^^"Complainants' Testimony," filed on September 1, ("Bosteds' Testimony").

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the Bosteds do not claim that allowing the use of a letter of intent

to establish site control is in any way improper.

Accordingly, even accepting the Bosteds' allegations

they have provided evidence rebuttrue, not toas

the Solar Project Owners' argument that site control requirements

were properly met by letters of intent. While the Bosteds may

disagree with the Tier Two procedural requirementsFIT as

they stand. this does constitute evidence thatnot any

site control requirements violated or circumvented. Thus,were

considering all evidence in light most favorable toeven a

the Bosteds, there is no dispute regarding any material fact as to

this Count.

Thus, upon careful review of the record, and having given

due consideration to the arguments advanced. the Commission finds

that the Solar Project Owners have affirmsatively negated an element

and demonstrated that the

Bosteds

hearing. Accordingly, the Commission grants the Motion to Dismiss

as to Count 2.

2016-0224 25

of this Count, lack of site control.

will be unable to carry their evidentiary burden at

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3.

Count 3 The Project Is Not Shovel Ready

The Bosteds claim that the FIT Projects should be removed

/'8 8from the queue because they were and are "not shovel ready [. ]

But other than a reference to other dockets alleging the Commission

ordered Hawaiian Electric to remove projects from the FIT queue

that are not shovel ready, the Bosteds do not explain or reference

89the basis or components of a "shovel ready" requirement .

Hawaiian Electric and the Solar Project Owners explain

they believe this "shovel ready" language was shorthand for the

FIT Tier 2 applicants having to meet the requirements set forth in

Order No. 30457.-^

The Bosteds discuss "shovel ready" requirements in depth

in their Complaint and in their testimony, but they present no

credible evidence which meaningfully rebuts Hawaiian Electric's

and the Solar Project Owners' evidence that the prerequisites to

91a FIT Tier 2 application were met for all the FIT Projects.

sscoraplaint at 3.

^^See generally Complaint.

2016-0224 26

®^Letter From: D. Brown To: Commission Re: Docket No. 2016-0224 - Formal Complaint of Peter Bosted and Ann Bosted; Responses to Complainants' Information Requests at 6-7, Respondents' Response to Bosted-IR-6.A.1; Motion to Dismiss at 56-58.

^^Intervenors' Testimony at 8-9, 22-23; Respondents' Testimonyat Testimony of Rosella Motoki at 5; Answer at Exhibit 1.

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After a careful review of the pleadings, the record,

and Docket 2008-0273, the Commission withNo. agrees

Hawaiian Electric and the Solar Project Owners and finds that the

"shovel ready" requirement refers to the prerequisites imposed on

Consistent with the

FIT administration rules, the "shovel ready" requirements are met

if a FIT Tier 2 applicant demonstrates site ownership or control.

completed application for a building permit. and the

proposed project could be completed within eighteen months of the

93Schedule FIT Agreement.

Thus, based on the above, the Commission finds that the

Solar Project Owners have affirmatively negated an element of this

failure satisfy the applicable requirements underCount, to

Order No. 30457, and have demonstrated that the Bosteds will be

unable to carry their evidentiary burden at hearing. Accordingly,

the Commission grants the Motion to Dismiss as to Count 3.

--Order No. 30457 at 4-5, 8-9.

2016-0224 27

^^Order No. 30457 at 9 (indicating the "Tier 2 pre-requisites" were "designed to prioritize shovel-ready projects").

applicants for an FIT Tier 2 Application.

files a

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4 .

Count 4 The FIT Permits Were Traded

The Bosteds allege that the FIT Permits "have been traded

by a number of companies" rendering SPI Solar the "current de Facto

" 94developer. the Bosteds do citeHowever, not statute.any

95regulation, or order that prohibits the transfer of FIT permits.

Instead of a specific prohibition on transferring FIT permits.

the Bosteds argue that such transfers "violate[] the intent ot the

"9€FIT Program[.] the Bosteds do not allege an actualHowever,

violation of the provisions of the FIT program, and similarly do

not explain how trading FIT permits is grounds for relief in a

formal complaint.

^^See generally Complaint; and Bosted Testimony at 12-16.

-^Bosted Testimony at 14.

2016-0224 28

50-1850-22

LLC,LLC,LLC,LLC,

LLC,LLC,LLC,

Representative ofKONA 50-20KONA 50-24KONA 50-28KONA 50-33 LLC,

isis

Testimony of Kevin White AuthorizedKONA 50-18 LLC, KONA 50-19

KONAKONAKONA

KONA 50-19 LLC, KONA 50-23 LLC, KONA 50-27 LLC, KONA 50-31 LLC,

South Point FIT LLC, and Hawaii FIT Twelve LLC, filed on September 19, 2017 ("Interveners' Testimony"), at 1. The precise ownership structure of the relevant projects and its history is more complicated and has already been observed by the Comrrsission. That analysis is incorporated here by reference. See Order No. 36888 at 8-11.

50-2650-30

^^Complaint at 4. The Commission has previously recognized in this proceeding that the Solar Project Owners assert that they all have common ownership whereby SPI Solar Inc. is "the 100% owner of Calwaii Power Holdings, LLC, which in-turn is the 100% owner of [the Solar Project Owners] ."

Interveners KONA 50-21 LLC, KONA 50-25 LLC, KONA 50-2 9 LLC,

KONA 50-34 LLC, KONA 50-35 LLC,

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The Bosteds also allege that transfers ofsome97FIT permits were "made without [Hawaiian Electric's] consent [.]

However this assertion is unsupported by any evidence in the record

and is merely a conclusory statement by a witness with no firsthand

knowledge of the transactions at issue. Testimony "that state[s]

ultimate or conclusory facts cannot be used in support of or in

"98opposition motion for j udgment.to Moreover,a summary

contrary to the Bosteds' assertion, both Hawaiian Electric and the

Solar Project presented evidence that all relevantOwners

transfers were effected with the consent of Hawaiian Electric.-^

Thus, upon careful review of the record, and having given

due consideration to the arguments advanced, the Commission finds

that the Solar Project Owners have affirmsatively negated an element

of this that the Solar Project Owners' transfer of FITCount,

Bosteds will their evidentiary burdento atcarry

hearing. Accordingly, the Commission grants the Motion to Dismiss

as to Count 4.

®"Bosted testimony at 14.

23-24; Respondents' Testimony

2016-0224 2 9

^^Nozawa v. Operating Engineers Loc. Union No. 3, 142 Hawaii 331, 338, 418 P,3d 1187, 1194 (2018).

Intervenors' Testimony at (Rosella Motoki) at 6.

permits was illegal or improper, and have demonstrated that the

be unable

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5.

Count 5 Circumvention of the Competitive Bidding Process

The Commission has already recognized that the question

of whether the Solar Project Owners improperly circumvented the

100Competitive Bidding Process is the primary issue in this Docket.

Despite alleging six separate counts, the Commission observes that

is focus of the Bosteds' analysis in

The Bosteds that the 26 Projects shouldFITargue

properly be aggregated to one single utility scale project of

significantly than allowed undergreater raegawattage 3.

Tier 2 Permit. The Commission recognizes that similar concerns

have been raised in prior proceedings. i . e . , the 2011 Monet Order,

where the Commission prohibited developers froms "avoid[ing] the

competitive bidding requirements by simply subdividing his

103proposed project" into smaller distinct projects.

The Consumer Advocate largely agrees with the Bosteds

regarding Count 5, indicating its belief that "multiple FIT

projects on the same circuit []

^’’’’See Order No. 36888 at 2.

^^-*-See generally Complaint; Bosteds' SOP.

^^^2011 Monet Order at 18-19.

2016-0224 30

^^^Complaint at 4.

their Complaint.

is not in the public interest

this Count the primary

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and should be required proceed under theto

/<1C4Competitive Bidding Framework.

For their part, the Solar Project Owners assert that

the Bosteds'

They contend that the Competitive Bidding Framework does not apply

common corporate parent that are each under the threshold wattage

106because of the literal language of that Framework. However,

the Solar Project Owners do not discuss the 2011 Monet Order,

including its applicability in determining whether the

Proj ects closer in large projectFIT concept toare one

individual smaller projects how the facts here couldor or

107otherwise be distinguished.

The Commission looks the 2011 Order forto Monet

guidance, in light of the parallels in that case. After carefully

reviewing the record in the Monet case and the record in this case.

the Commission is aware of the factual differences between the

two cases noted by all the Parties, but finds the rationale and

reasoning in the 2011 Order instructive.present Monet

^^^CA SOP at 9.

•^^d'dotion to dismiss at 83-86.

^^^Motion to Dismiss at 84-87.

^^■See Motion to Dismiss at 83-90.

2016-0224 31

to a group of individual projects whose distinct owners share a

requested relief is not available under the law.^'^^

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Critically, in the 2011 Monet Order, the Cornrnission observed that

the primary issue was "the interplay between the FIT Program and

•t 108the [C] omspetitive [Bjidding [Framework], which reflect the sairie

considerations at issue here.

The 2011 Monet Order is a clear expression of the policy

that developers cannot avoid the intent of the Competitive Bidding

Framework through technical maneuvering and hyper-literal attempts

to parse the language of various regulatory decisions. Thus,

in the 2011 Money Order, the Commission found that subdividing

lots to create contiguous individual proj ects was

because the paradigm was "closer in concept" to one single large

109prop ect. true even though there

language expressly setting forth that contiguous smaller projects

would be deemsed one larger project.

The Commission recognizes the parallels to this docket

and rejects the Solar Project Owners'

argument that their compliance with the

regulatory decisions means they could not have circumvented the

Competitive Bidding Process. While the tacts are not identical.

for example. in addition putting the small projectsto on

^^^2011 Monet Order at 13.

^^®2011 Monet Order at 18.

2016-0224 32

individual lots, the Solar Project Owners made sure the lots were

This was was no regulatory

and Hawaiian Electric's

not allowed

literal words of the

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not entirely contiguous and each had a distinct legal entity owning

there sufficient parallels furtherto warrantare

investigation, and the record is insufficient maketo a

determination at the summary judgment stage.

Thus, upon careful review of the record, and having given

due consideration to the arguments advanced, the Commission finds

that at this stage, it cannot determine as a matter of law whether

the Projects could be subject to the Competitive BiddingFIT

Framework. Accordingly, the Solar Project Owners have not met

their burden of demonstrating that the Bosteds will be unable to

carry their burden for this Count at hearing. and the Motion to

Dismiss is denied regarding Count 5.

6.

Count 6 No Benefit to People and Ratepayers

The Solar Project Owners that the Bosteds'assert

Count 6 fails to allege a violation of law. of any provision of

rulethe of Commission orderFIT Program, or any or

The Commission agrees. Upon reviewing Count 6, the basis for this

count are allegations that essentially repeat or rely upon the

Bosteds' other counts, such as the Solar Project Owners not having

^^'^Motion to Dismiss at 90-91, 94.

2016-0224 33

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However, as these are premised on the outcome of the Bosteds' other

independent basis for relief.counts.

the Commission, by this Order, has dismissed msany of theMoreover,

pertinent that underlie 6, rendering itcounts Count even

more speculative.

Count 6 is subsumed by the Bosteds' other causesIn sum.

of action. Thus, upon careful review of the record, and having

given due consideration to the arguments advanced. the Commission

finds that Count 6 fails to sufficiently allege an independent

violation of law and is effectively duplicative of the Bosteds'

other counts. Count 6 is therefore dismissed.

C.

The Bosteds ask the Commission to take notice of two

First, they ask the Commission to

take notice of a decision from the U.S. District Court for the

Southern District of New York.-’-^-^ Second, they ask the Commission

ii^Bosteds' Request for Notice at 1-2.

^^^Bosteds' Request for Notice at 1-2.

2016-0224 34

The Bosteds' Motion to Take Notice or Otherwise Augment the Record

different pieces of evidence.

sufficient site control and the project not being shovel ready.

they cannot serve as an

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The Commission

is empowered to take official notice of all matters that could be

The Bosteds' individual

requests are addressed in turn.

First, the Commission declines to take official notice of

facts contained in the District for theU. S. Courtany

Southern District of York cited by the Bosteds.New case

Factual allegations, conclusions, and findings . should not be

noticed to prove the truth of the matters asserted even though the

r " 1 i Smaterial happens to be contained in court records. Simply put.

the Commission may not take official notice of the truth of matters

set forth in judicial decisions.

Second, the Bosteds ask the Commission to take notice of

four cancelled checks or otherwise include them in the record.

There is basis which the Commission could take officialno on

notice of the checks they are not generally known within the

are not capable of accurate and ready

determination by whose beresort to cannotsources accuracy

reasonably questioned, and are not the type of information on which

ii^Bosteds' Request for Notice at 1-2.

§ 16-601-48 .

2016-0224 35

^i^Uyeda v. Schermer, 144 Hawaii 163, 172, 439 P.3d 115, 124(2019) (quoting Addison M. Bowman, Hawaii Rules of Evidence Manual 2-5 (2014-15 ed.)).

judicially noticed by Hawaii courts.

to take judicial notice of four cancelled checks.

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the Commission could opine using its expertise. However,

the Commission observes that the Solar Project Owners do not appear

to dispute the authenticity or veracity of the checks, but instead

dispute their meaning.

Thus,

the record. without establishing their authenticity via official

notice. at this time. Any party disputing the authenticity or

veracity of the cancelled checks may submit information supporting

the dispute by one week from the date of entry of this Order.

Upon careful review of the record, and having given due

consideration to the arguments advanced, the Commission denies in

part and grants in part the Bosteds' Motion to Take Notice or

Otherwise Augmsent the Record in that: (1) the Commission will not

take official notice of cited by the Bosteds;S.D.N.Y. case

and (2) the Commission will take official notice of thenot

cancelled checks, but will allow their inclusion in the record of

this Docket subject to any challenge(s) to their authenticity or

veracity.

resolve this issue by separate order.

2016-0224 36

If any challenges are submitted, the Commission will

although the Commission does not take official

notice of the checks at issue, it will allow their inclusion in

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V.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Based the foregoing, the Commission findson

and concludes:

1.Count

1. There is evidence of violation ofno any any

existing zoning statute or regulation.

2 . Therefore, the Solar Proj ect haveOwners

demonstrated that 1 fails of law, and theCount matteras 3.

Solar Project Owners are entitled to a determination in their favor

this count.as to

3. Based on the above, the Motion to Dismiss is granted

Count 1.as to

2 .Count 2

4 . The Solar Project Owners have established that they

have site control through their letter of intent and

leasehold agreements.

5. The Bosteds have not presented any evidence to

rebut this showing by the Solar Project Owners otherwiseor

demonstrated a failure to comply with site control requirements.

2016-0224 37

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6. Accordingly, the Solar Pro j ect haveOwners

affirmatively negated an element of this lack of siteCount I

control, and have demonstrated that the Bosteds will be unable to

carry their evidentiary burden at hearing.

7. Based

as to Count 2 .

3.Count 3

8 . The "shovel ready" language refers to

the requirements for Tier 2 applicants forthFIT setas

in Order No. 30457.

9. The Solar Project Owners have provided evidence

showing that they have met the applicable requirements set forth

in Order No. 30457.

10 . The Bosteds have not produced credible evidence

that rebuts the Solar Project Owners' evidence that their projects

meet the applicable requirements set forth in Order No. 30457.

11. Accordingly, the Solar Proj ect haveOwners

affirmatively negated an element of this Count, failure to satisfy

the applicable requirements under Order 30457, and haveNo.

demonstrated that the Bosteds will be unable theirto carry

evidentiary burden at hearing.

2016-0224 38

on the above, the Motion to Dismiss is granted

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12 . Based on the above, the Motion to Dismiss is granted

as to Count 3.

4 .Count 4

13. The Bosteds have not presented any legal authority

that provides that transferring FIT permits violates any specific

violation of the FIT program rules.

14 . Regarding their specitic allegation that the

Solar Proj ect transferred permits withoutOwners FIT

Hawaiian Electric^ s the Solar Proj ect haveconsent, Owners

presented evidence rebutting this claim, and establishing that all

transfers were made with Hawaiian Electric's consent.

15. Accordingly, the Solar Proj ect haveOwners

af f irmsatively negated element of this that theCount,an

Solar Proj ect Owners' transfer of FIT permits illegalwas

or improper, and have demonstrated that the Bosteds will be unable

to carry their evidentiary burden at hearing.

16. Based on the above, the Motion to Dismiss is granted

as to Count 4.

2016-0224 3 9

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5.Count 5

17 . In drawing all reasonable inferences in favor of

collective project.

The fact that each individual project is owned byA.

a distinct legal entity, as well as the geographic diversity of

the FIT Projects themselves, both weigh toward the FIT Projects

being considered individual; but

The cornrnon overall ownership of the Solar ProjectB.

FIT Projects both weigh toward the FIT Projects being considered

as a single project.

18 .

a matter of law whether the FIT Projects could be subject to the

Competitive Bidding Framework.

For example. the Solar Project Owners claim thatA.

the FIT Projects are exempt from the Framework because of the

Framework's exemption of "generating units with a net output

available to the utility of 1% or less of a utility's total firm

"117capacity[,] but they have not established that the FIT Projects

^-'-''Framework at 5.2016-0224 40

The Commission cannot, at this stage, determine as

could not be collectively considered a "generating unit" or that

are "closer in concept" to individual projects or to one larger

the Bosteds, the evidence is msixed as to whether the FIT Projects

Owners and the temporal proximity of the applications for the

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their total is how that "net output"aggregate output not

would be calculated.

19. Accordingly, the Solar Project Owners have not met

their burden of demonstrating that the Bosteds will be unable to

carry their burden for this Count at hearing.

20 . Based on the above, the Motion to Dismiss is denied

regarding Count 5.

6.Count 6

21. The Bosteds have failed to identify any particular

violation of law,

Count 6.

22 . The specific allegations made in support of Count 6

are subsumed within other Counts and therefore redundant.

23. Based on the above, the Motion to Dismiss is granted

regarding Count 6.

7 .

24 . The Commission may not take official notice of the

truth of matters set forth in judicial decisions.

2016-0224 41

The Bosteds' Request For Judicial Notice or to Otherwise Augment the Record

rule, regulation, or Commission order in their

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25.

notice of S.D.N.Y. case cited by the Bosteds, and the Request for

Judicial Notice is denied in this respect.

26. The Commission will not take official notice of the

cancelled checks at this time, but will allow their inclusion in

the record of this E)ocket and the opportunity for any Party or

Participant to challenge the checks' authenticity or veracity by

written submission brought within week of the date ofone

this Order.

VI.

PROCEDURES GOVERNING THE DOCKET MOVING FORWARD

In light of the above, the sole count remsaining in this

Docket is Count 5. The Commission intends to hold a hearing on

this remaining Count to take evidence and argument on this issue.

the hearing, the Commission will consider evidenceAt

whether the FIT Projects are "closer in

concept" to individual projects or to a larger consolidated project

and whether the Competitive Bidding Framework would allow the

FIT Projects to be considered in the aggregate.

facilitate this hearing, the Commission willTo

conduct a prehearing conference. In light of the restrictions

in place result of the COVID-19 pandemic.as 3.

and recognizing that the Bosteds' reside Hawaii island.on

2016-0224 42

As a result, the Commission will not take official

establishing, inter alia,

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the Commission will host the prehearing conferen ce remotely

via Webex. Information about the prehearing conference,

including how to attend the meeting virtually, will be forthcomsing

in a notice of prehearing conference.

At the prehearing conference, the Parties are expected

to be prepared to discuss how long they expect the hearing to take.

their expected number of witnesses, the scope of the documentary

evidence expected to be presented, and whether additionalany

are possible. Following the prehearing

conference, the Commission will issue a prehearing conference

order, which will establish, inter alia, the hearing date and time

and other rules to govern conduct at the hearing.

2016-0224 43

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VII .

ORDERS

THE COMMISSION ORDERS:

1 . The Solar Project Owners' Motion Dismiss isto

granted with respect to Counts 1, 2, 3, 4, and 6 of the Complaint,

as set forth above.

2 . The Solar Project Owners' Motion Dismiss isto

denied with 5 of the Complaint,respect to Count setas

forth above.

3. The Bosteds' Motion to Take Notice Otherwiseor

Augment the Record is granted in part and denied in part, as set

forth above.

4 . The cancelled checks proffered by the Bosteds are

included in the evidentiary record of this Docket subject to any

challenge(s) or veracity brought withinto

one week from the date of entry of this Order. If any challenges

submitted. the Commission will resolve this issue byare

separate order.

5. The Commission will hold a prehearing conference.

which all Parties required to attend. and who should beare

prepared to discuss the forth in Sectionmatters set III

above and any other matters that will aid the Commission in setting

2016-0224 44

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a final hearing. The Commission will subsequently issue a notice

containing details about the prehearing conference.

AUGUST 5, 2021DONE at Honolulu, Hawaii

Commissioner

APPROVED AS TO FORM:

2016-0224.ljk

2016-0224 45

• !

PUBLIC UTILITIES COMMISSIONOF THE STATE OF HAWAII

Mark KaetsuCommission Counsel

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CERTIFICATE OF SERVICE

Order No. 37043, the foregoing Order wasPursuant to

served the date uploaded the Public Utilitiestoon was

Commission's Management System and served through theDocument

Document Management System's electronic Distribution List.

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FILED

2021 Aug 05 PM 15:06

The foregoing document was electronically filed with the State of Hawaii Public Utilities

Commission’s Document Management System (DMS).

PUBLIC UTILITIESCOMMISSION