BENNINGTON — Opponents of the Chelsea Solar solar project in the Apple Hill section have won a significant victory with the state Public Utility Commission's denial of a certificate of public good for the proposal.
The June 12 ruling does not, however, signal an end to the long-running battle between residents of the area and developer, Allco Renewable Energy LTD, which dates back to the initial application.
Immediately after the permit denial, the developer filed notice of an appeal of the PUC decision to the Vermont Supreme Court.
In its 86-page decision, the PUC rejected Allco Renewable's application based largely on its determination that the 2.0-megawatt Chelsea proposal and an adjacent 2.0-megawatt solar facility Allco has received permitting for — called Apple Hill Solar — are not, as the developer contends, separate facilities.
State regulation on the siting of solar projects sets a maximum of 2.2 megawatts of power generating capacity for such a commercial facility. In essence, the PUC agreed with opponents that the two projects constitute a single facility with more than 4 megawatts of capacity.
"Specifically, we disagree that the Willow Road Facility [Chelsea Solar] and the neighboring Apple Hill Facility are separate plants ," the PUC states in its conclusion.
Both sites are east of Route 7 on Harwood Hill and south of Houghton Lane and Apple Hill Road.
Opponents feel vindicated
"I'm delighted that the full PUC commission agreed with us as intervenors that the second version of the Chelsea Solar project should be denied," said Lora Block, of the Apple Hill Homeowners Association, which has opposed the project. "I'm especially delighted that the commission made that decision based on our argument and proofs that the project is really part of a total 4.4 megawatt project since it shares infrastructure with the Apple Hill project adjacent to it."
She added, "State regulations don't allow commercial solar projects of more than 2.2 megawatts. The developers misled the Supreme Court in 2013 when they said they had separate infrastructure so were building two projects. We'd been making that argument for years, and to finally see the commission agree with us, gives me hope we'll successfully stop both these projects."
The intervenors also are continuing to oppose the Apple Hill solar project, which received a certificate of public good last year, in an appeal to theSupreme Court.
The commission's subsequent order in the June 12 decision concludes, "The petition of Chelsea Solar LLC for a certificate of public good pursuant to [Vermont law] is denied without prejudice to the developer's ability to file an amendment to its petition that is consistent with our determination."
Thomas Melone, president and senior general counsel with Allco Renewable Energy, could not be reached for comment on the PUC denial for the Chelsea project.
Win or lose before the Supreme Court, the developer is indicating that another proposal to gain a separate projects determination could be submitted.
In a recent request to extend the project's standard offer program power purchase agreement for another year, Allco Renewable indicated that, should the Supreme Court uphold the PUC's decision on a single large project basis, the developer will submit an amended application with the intent of creating two separate facilities under regulation guidelines.
The developer states in part: "If the Vermont Supreme Court affirms the Commission's determination on the single-plant issue, then Chelsea will amend its petition in good faith in accordance with the guidance provided by the Vermont Supreme Court so that the Chelsea and Apple Hill projects would be separate plants under [state law]."
In its June 12 decision, the PUC also rejected some of the arguments of the project intervenors who oppose the project, including the Apple Hill Homeowners Association and Mt. Anthony Country Club.
Those arguments include that the "views in and around the town of Bennington are a significant economic asset that will be diminished by the [Chelsea project]."
The PUC also stated that photos of views presented by the intervenors during the permitting process "do not persuade us that the [facility] will have an undue adverse impact on aesthetics."
The PUC decision also rejected the intervenors' argument that the Bennington Town Plan restricts solar development in the Rural Conservation District, where the project site is located.
" we found that the town did not treat the conservation measures in the Town Plan as restricting the development of solar projects like this one in the Rural Conservation," the PUC stated.
Block also decried what she called the bullying tactics of the developers in court and before the PUC.
"I've been furious that the developers have tried to scare us into silence as intervenors by suing the Apple Hill Association and several individuals living here because we have tried to stop the projects and have shown they misled the Supreme Court," Block said. "But we have superb pro bono lawyers who are defending us and have counter-sued the developers under the anti-SLAPP [strategic lawsuit against public participation] law for trying to silence citizens involved in public issues. We expect to win that suit against them as well."
A corporate entity controlled by the developer currently is suing the Apple Hill Homeowners Association, abutter and vocal opponent Libby Harris and others in Chittenden Superior Court over access and easement issues relating to lots in the Apple Hill development that could affect access options to the solar project sites.
Long permitting history
The Chelsea Solar proposal was first proposed in 2013, and in 2016 it was rejected by the PUC for a certificate of public good. After appealing to the Supreme Court, the developer submitted a revised, smaller and better screened project plan and eventually withdrew the court appeal.
The footprint of the adjacent Apple Hill project also was reduced, and that plan received a certificate in 2018.
The town of Bennington, which had also opposed the two projects and became involved in the Supreme Court appeal, dropped its opposition to the revised, smaller Apple Hill project in August 2017.
And in September 2018, the town and Allco Renewable reached a comprehensive settlement involving these two and three other solar project proposals in Bennington, in which the town agreed not to further oppose either the Chelsea or Apple Hill projects.
Among concessions to the town, the developer agreed to pay the town $202,250 to cover most of town attorney fees and staff time costs incurred in responding to multiple permitting filings from Allco Renewable, court appeals or suits filed by the developer.
The neighbors and other opponents were critical of the Select Board's decision to withdraw and vowed to continue to oppose the projects, which they have.
Block said at the time that she was "extremely disappointed and upset that the town has decided to settle with these predatory developers."
Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien