Solar developer in a vortex of court filings

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BENNINGTON — Legalistic firefights continue to flash over the multiple solar projects Allco Renewable Energy proposes in Bennington.

The developer's latest salvo, filed in Chittenden Superior Court Civil Division, is a suit against the state and VTrans. Allco Renewable principals Michael Melone and Thomas Melone are seeking to overturn project setbacks the state agency is requiring between a planned solar array and a rail corridor right-of-way.

Meanwhile, in another venue, the town of Bennington and the Bennington County Regional Commission seek reimbursement for legal fees expended to fight complaints the developers filed and later dropped this year in state and federal courts.

The town's motion, filed this week in Superior Court Environmental Division, alleges that the developers engaged in "forum shopping" and other tactics in filing suit against the town, the BCRC and other defendants.

Allco Renewable in late February abruptly shifted legal gears from other courts to the Environmental Court, where the company had recently filed a new complaint similar to its prior actions in the state and federal courts.

The previous filings included a suit filed in Chittenden Superior in January against the town, the BCRC and several local officials and town residents over the preparation and adoption of the Bennington Energy Plan.

After the defendants had that suit moved to U.S. District Court, the action was abruptly dismissed at the request of Allco Renewable, and the Melones said they would be focusing on their new appeal in Environmental Court.

Attorney Merrill Bent, representing the town and BCRC, this week filed a motion in Environmental Court seeking $21,721 in reimbursement for legal fees for her clients. The costs were accrued fending off the suit in Chittenden Superior against the parties involved in the development and approval of the town's Energy Plan, and during the similar suit in U.S. District Court that was quickly dismissed at the request of the developer.

Bent likewise has filed a motion to have the Allco Renewable complaint in Environmental Court tossed out, primarily contending that the issues raised are not proper for that venue — which normally considers appeals of a zoning or other decision from a local board.

Suit versus VTrans

In the new suit against VTrans, the developer seeks declaratory and injunctive relief and damages for alleged violations of constitutional and other rights.

The developer seeks a 10-foot setback for solar panels in its proposed 2.2-megawatt Battle Creek Solar I project, which would meet the town's zoning standard for the site off Route 67A in North Bennington. But the state is declaring a 50-foot buffer zone around the railroad corridor along an inactive Vermont Railway rail spur.

"The town of Bennington has agreed to a 10-foot setback (which is the standard for the industrially zoned property in Bennington). But VTrans refuses to consent," the complaint states. "Its refusal is not based on any valid regulatory reason."

The state Attorney General's office is representing defendants in the matter. Officials there could not be reached Wednesday for comment.

As in prior court filings, the Melones contend that limiting the amount of renewable energy that might be generated by a solar facility "is a breach of the public trust to current and future generations, and a violation of plaintiff's constitutional rights."

In this instance, the suit contends, a 50-foot setback for the Battle Creek facility from the rail right-of-way would result "in approximately 230,000 watts less of direct current generating capacity. Thus VTrans' action contributes directly to climate change and the adverse health consequences from burning fossil fuels."

The developer is seeking a certificate of public good permit for the Battle Creek project before the state Public Utility Commission but already has a memorandum of understanding with the town concerning local requirements for the facility.

Pattern of `forum shopping'

In her motion for reimbursement of legal fees and for a stay in the Environmental Court appeal until they are paid by Allco Renewable, Bent states in part: "As an example of its motive for multiple suits, plaintiff's initial lawsuit was brought in Chittenden County — despite the fact that all of the sites at issue in this case occurred in Bennington County."

Bent said the developer contended that Chittenden Superior was the proper venue "because all plaintiffs reside in Chittenden County," but she adds: "It quickly became evident that all of the plaintiff entities in that case had recently changed their principal place of business in anticipation of litigation to engage in forum shopping It is blatantly obvious that these address changes were made for the sole purpose of increasing the cost and inconvenience to the defendants in the Chittenden case."

The motion states further: "Plaintiff's subsequent voluntary dismissal of the case is further evidence of its forum shopping. Plaintiff dismissed the case two days after defendants removed it to federal court (apparently a forum that plaintiff did not prefer), and then emailed a copy of the [Environmental Court] complaint to defense counsel the same day. Plaintiff had, for a week, essentially the same lawsuit pending in two different courts, in order to give itself the option to select its favorite venue."

Thomas Melone, the CEO of Allco Renewable Energy, could not be reached Wednesday for comment on the recent court filings.

In Bennington, the developer also is pursuing permits for the controversial Chelsea Hill and Apple Hill solar projects, which have been staunchly opposed by neighbors of the Apple Hill section of town.

The company also has expressed tentative plans for two other sections of the Battle Creek project but has yet to begin the permitting process.

Jim Therrien writes for New England Newspapers in Southern Vermont and VTDigger.org. Email: jtherrien@benningtonbanner.com. @BB_therrien on Twitter.


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