BENNINGTON — The Vermont Public Utility Commission has rejected a certificate of public good for the controversial Apple Hill Solar project, agreeing with opponents of the project and with a recommendation from its hearing officer, Michael Tousley.
"The findings, conclusions and recommendations of the hearing officer are adopted," the commission wrote in a decision posted May 7.
Opponents in the Apple Hill area east of Route 7A and other residents were pleased with the decision but wary of further appeals from the developer, Allco Renewable Resources, Ltd.
They said they also hope the PUC ruling will similarly affect another 2-megawatt Allco Renewable project, called Chelsea Solar, which is planned for a parcel adjacent to the Apple Hill Solar site.
Tousley had determined in January that the Apple Hill project "would unduly interfere with the orderly development of the region, with due consideration having been given to the recommendations of the municipal and regional planning commissioners and the land conservation measures contained in the plan of the affected municipality [Bennington]."
In addition, Tousley's recommendation advised the commission to conclude that the project "would have an undue adverse effect on the aesthetics and on the scenic or natural beauty of the area."
Those were two of the main arguments articulated by opponents of both solar projects, given that the sites are in the town Rural Conservation District, which seeks to minimize development and preserve natural areas, and that the hillside is prominent in a scenic rural setting and visible to both residents and visitors from the state Welcome Center and the Bennington Battle Monument.
"We are very pleased," said Brooke Dingledine, of VDM Law, of Barre, who has represented neighborhood opponents of the project. "We're pleased that the PUC has finally sorted this out."
She referred to arguments that the project is not consistent with the town plan in terms of what should be allowed in the Rural Conservation District and would be "in a highly visible location on a hillside," affecting a view considered important to the local tourism industry.
Dingledine said the ruling "is an excellent decision," which balances the guidelines of the community with the rights of the applicant.
However, the attorney noted that the PUC decision is not final until the end of a 30-day appeal period, and she believes an appeal is likely.
In fact, Thomas Melone, president and senior counsel of Allco Renewable, said in an email Monday, "We do plan to appeal and/or seek reconsideration."
"I'm very pleased the PUC adopted the proposal for decision of their hearing officer to deny approval of the Apple Hill Solar project," said Lora Block, a resident of the Apple Hill area. "This is an essential step in protecting our neighborhood and the visual beauty of Bennington."
She added, "As an intervenor, along with Libby Harris, I feel completely vindicated that we kept up this fight for five years against the Apple Hill and adjacent Chelsea Solar projects."
Currently, the 2-megawatt Chelsea project is before the Supreme Court on appeal, primarily to resolve the question of whether the adjacent projects are in fact a single 4-megawatt project in total, which would place the facility well above the state's size limit of 2.2 megawatts. That appeal by the developer, from a PUC decision in 2019, does not focus on the issues in the Apple Hill case recently before the commission.
Dingledine said Monday she believes that the PUC's Apple Hill decision regarding the town plan and aesthetics of the scenic area should also disqualify the same-sized Chelsea project. She hopes, however, that the opponents can avoid "repeating the whole process," first before the PUC and later before the Supreme Court, then back again, with each of the projects.
"The Public Utility Commission issued a well-reasoned decision denying Apple Hill Solar," said Annette Smith, executive director of Vermonters for a Clean Environment, which has monitored the permitting process for solar projects around the state.
She said the PUC "correctly found that the Apple Hill Solar project, proposed to be located on a prominently visible hillside in the Rural Conservation District, violates the Town Plan. The PUC also found that the aesthetic impact would be unduly adverse, and noted the visibility from the Mount Anthony Country Club, the Bennington Battle Monument, and the Welcome Center."
Smith added, "The companion project, originally Bennington Solar, then Chelsea Solar, now Willow Road Solar, awaits a decision by the Vermont Supreme Court, which may remand it back to the PUC, as was the case with Apple Hill Solar, to consider the town plan ."
Proposed in 2015
The five-year permitting battle surrounding the Apple Hill project has continued since 2015. During that time, the project has been revised by the developer with a smaller clear-cut footprint on the Apple Hill site; won approval from the PUC; had that approval subsequently appealed to the state Supreme Court, and had the court in September 2018 remand the petition back to the commission for reconsideration of several points of contention. The court had found fault with an earlier PUC decision granting a permit for Apple Hill.
The court last fall called for re-examination of several details of the decision. That prompted the hearing officer's review and his recommendation in January to deny a permit.
"This decision means the PUC has recognized the importance of our arguments and also upheld the Town Plan," Block said Monday.
"The decision protects the aesthetics of the Bennington area and ensures the orderly development of our region," she said. "The photographic evidence we entered was crucial. The project violates the 2010 Bennington Town Plan's clear written community standards, which are intended to preserve the aesthetics or scenic natural beauty of the area and to guide the orderly development of the region."
The project would be "a visual commercial defacement of a prominent hillside that would be seen from many vantage points," Block said. "The statement by the PUC was that `the black box will stick out like a sore thumb,' because the developer claimed that sheathing the perimeter fence with dark mesh screening material would somehow camouflage it."
Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien