Suit against town dismissed, appeal launched
However, Thomas Melone, attorney for Allco Renewable Energy, which proposes three commercial-scale solar projects in Bennington, said further legal steps are planned. One of those, he said, is an action already filed in the Environmental Division of Vermont Superior Court.
The original suit by four corporate entities controlled by Allco Renewable was filed in January in Chittenden County Superior Court, but the suit was moved this week to U.S. District Court at the request of the defendants. On Wednesday, the developer voluntarily dismissed that action.
"The parts of the complaint regarding the town plan were re-filed in the Environmental Division of Superior Court last week, prior to the removal," Melone said in an email. "The evaluation of whether and when the other counts will be re-filed and against whom is ongoing."
At this point, only the town and the regional planning commission are named in the developer's newest court filings. The individuals and officials previously named are not included.
Those were the town Select Board, the Planning Commission, town Planning Director Daniel Monks; state Rep. Mary Morrissey, R-Bennington; and other town officials and residents who have opposed two of the company's solar projects.
Paperwork obtained Wednesday from the environmental court includes an appeal of the Bennington energy plan, which had been a prime focus of the original lawsuit, as well as a lengthy complaint against the town, the plan and the BCRC, seeking declaratory and injunctive relief from the court and damages.
The 43-page complaint, with multiple exhibit attachments, contains many of the arguments and allegations in the original suit. They focus on the alleged negative effects on the developer and commercial solar projects in Bennington that would follow certification of the energy plan.
The plan was adopted by the Select Board Jan. 22 and is now before the BCRC, which expects to consider it during a March 15 meeting of commissioners. Included in the document are maps showing preferred sites for solar projects and a number of restrictions and requirements for commercial developments.
In the current appeal, the developer and PLH, LLC, an entity that owns property in Bennington, seeks party status in the BCRC's energy plan certification process, "as owner of property that will be subject to unreasonable or inappropriate restrictions of present and potential use by the Energy Amendment."
The energy plan — a 28-page amendment of the larger town plan — was developed by the town Planning Commission with the assistance of a citizen group and town and BCRC staff members before being recommended in November to the Select Board for approval.
The board unanimously adopted the document and sent it on to the BCRC for review and a vote by regional commissioners. Shortly afterward, the developer filed a 60-page suit in Chittenden Superior.
Bennington's energy plan is the first to reach this approval stage under Vermont Act 174, the 2016 energy planning legislation allowing municipalities and regional commissions more deference on the siting of energy projects coming before the Vermont Public Utility Commission.
The act allows a regional commission to adopt a regional plan, which BCRC has done, qualifying it to then certify that municipal plans meet state requirements.
"The BCRC has not been formally served. I haven't reviewed the new or revised counts so I can't really comment at this time," commission Executive Director James Sullivan said Wednesday.
Merrill Bent, of Woolmington, Campbell, Bernal & Bent, one of the attorneys representing the defendants, also said she had yet to receive the full complaint.
"My only comment is that this is an unusual suit," she said.
The developer's complaint in environmental court was filed by the firm, Paul Frank & Collins, of Burlington.
In the filing, the developer repeats or echoes aspects of the now-dismissed lawsuit. They are appealing the prior and ongoing adoption process for the town's energy plan, say it failed to follow state criteria for such plans, and argue that the plan unfairly restricts solar development and violates the appellants' constitutional rights.
The developer also seeks an injunction against the BCRC certifying either the town energy plan or a recent town screening ordinance for energy facilities. And they challenge the constitutionality of the state delegating authority to approve energy plans to a regional commission, a key feature of Act 174.
Jim Therrien writes for New England Newspapers in Southern Vermont and VTDigger.org. Email: email@example.com. @BB_therrien on Twitter.
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