BENNINGTON — A developer involved in permitting disputes over two proposed solar facilities has raised multiple objections to the proposed town energy plan, which was the subject of a public hearing before the Select Board.
Thomas Melone, president and senior general counsel with Allco Renewable Energy, added to previous company criticism of the energy plan in a six-page written submission. He contended the plan is "unconstitutional" relative to large solar projects; "violates the public trust doctrine;" does not comply with requirements of the state's Act 174 energy planning law, and violates federal anti-trust law.
Melone's comments were submitted just prior to the hearing on Monday, during which several residents commented orally. Many of those attending favored approval of the plan, including a number of opponents of two large Allco Renewable Energy projects proposed in the Apple Hill section of town.
The 28-page plan — proposed as an amendment to the town plan — was unanimously endorsed by the Planning Commission in November and submitted to the Select Board for approval. The board will hold another public hearing on Jan. 22 and could vote at that time.
Chairman Thomas Jacobs said the board will accept comments over the next two weeks and during the upcoming public hearing. The full document and comments from Melone and others will be posted with the Jan. 8 meeting minutes on the town website, http://benningtonvt.org.
If certified by the board, the town's energy section is in line to become the first municipal plan in Vermont to be approved under Act 174 — legislation designed to allow communities more influence over the siting of energy facilities if they adopt a comprehensive local plan.
Approval of the plan under Act 174 seems likely if it is certified without significant revisions by the Select Board. Jim Sullivan, executive director of the Bennington County Regional Commission, and commission planner Catherine Bryars assisted town officials and staff members in its preparation.
"I expect the board to vote on the energy plan in two weeks," Jacobs said Tuesday, adding that he has heard no significant objections raised by board members.
Dan Monks, assistant town manager and planning director, and Sullivan reiterated that they believe the document is in compliance with Act 174 and could survive challenges.
"The BCRC staff is confident that it is a good plan, properly developed, and that it meets all Act 174 standards for plan approval," Sullivan said after the meeting. "I'll have to let the town decide if they want to refer any or all of the Allco legal questions to their counsel."
"We may have counsel review some of the [Melone] objections," Monks said Tuesday. "It is true that BCRC is confident that the plan was developed in accordance with Act 174."
In his written comments, Melone said the public trust doctrine of the select board as "sovereign trustees" of the environment would be violated by the energy amendment, because of the restrictions on solar project siting included in the plan.
"What would you tell your grandchildren when they are old enough to realize that you voted for rules that discourage solar energy and thus continue to permit and subsidize fossil fuel extraction, development and consumption, and climate destroying policies?" Melone wrote.
He also contended that the plan and its solar siting map are unconstitutional in that a citizen committee that helped town officials draft it was dominated by opponents of solar facilities proposed for any site near their property.
Melone said the design of the preferred solar sites map was discriminatory and not based on objective criteria; that a large percentage of the preferred land for solar projects is controlled by the town, which would restrict development in an "anti-competitive manner; and that "no serious review could have been taken of the preferred sites for solar development."
Monks said the largest single area seen as preferred for large-scale solar development is the former Bennington landfill site off Hougton Lane. The preferred parcels total more than 348 acres.
The mapping "was not done lightly or quickly or without a lot of thought," Monks said.
Melone also contends the energy amendment and the map do not comply with Act 174 requirements, specifically the Energy Planning Standards for Municipal Plans, published by the state Department of Public Service.
And he alleges that the Planning Commission failed to adhere to posting and notification requirements in endorsing and submitting the plan to the Select Board for consideration.
Melone could not be reached Wednesday for further comment.
Sullivan said during the hearing that the BCRC received state Department of Public Service approval for its regional energy plan last year, allowing the commission to work with local towns on their own more specific plans and certify that they meet Act 174 requirements.
He said he doesn't know of another Vermont community that has had a municipal energy plan approved under the act. Dorset, Manchester and Sunderland also are working with the BCRC on municipal plans, Sullivan said.
In preparing the siting map, Monks said the BCRC first identified areas that would be unsuitable under state regulations or policy — such as wetlands — and those that would have little potential for solar development, such as with limited sun exposure or access to the power grid.
Afterward, he said, town staff members and planners worked with Bryars to add local restraints on siting that the town wanted to include, such as to protect historic sites, prime agricultural or conservation land, and to ensure that those restrictions would meet state DPS requirements.
While Act 174 gives municipalities with approved energy plans more influence than in the past over siting wind, solar, hydro or other energy facilities, the Public Utility Commission retains the authority to approve projects determined to be of significant benefit to a region or the state as a whole. A town plan would allow the highest level of deference in permitting proposals before the PUC.
Support for approval
Lora Block, one of those who has opposed the Allco projects planned for Apple Hill, urged the board to approve the plan.
"I know the tremendous amount of effort that went into this plan," she said. "I would hope that you'll adopt it."
While solar siting was the overriding issue as the plan was drafted, it also contains considerable detail on other forms of energy production, as well as data and information on the town's energy use; goals for reducing power and fuel use; and suggested goals for town buildings, businesses, residential and rental housing, and institutions.
There is a considerable amount of language in the plan on the siting of large-scale solar facilities. The town would "encourage" rooftop solar projects "of any scale," and "strongly supports" community solar projects of up to 150 kilowatt capacity for groups of residents, institutions or businesses to gain net-metering electricity credits.
Besides mapping preferred sites and areas where large solar projects should be restricted or prohibited, the plan includes restrictions related to wetlands, flood zone, waterway or other environmental factors, along with impacts to historic sites or scenic resources of the town. Sections address screening of solar facilities and other siting guidelines to limit adverse impacts on neighborhoods and public viewsheds.