BCRC defies developer, approves energy plan

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BENNINGTON — Despite last-minute letters from a solar developer warning of dire consequences, regional planning commissioners were unanimous Thursday in approving Bennington's new energy plan.

"Make no mistake — if you vote `yes,' you will be signing the death warrant of many Americans, and endorsing the anti-climate agenda of Bennington's NIMBYS," stated the March 13 letter sent by Michael Melone, of Allco Renewable Energy, Ltd., to individual commissioners.

"No amount of make-up or window dressing can mask the true anti-solar and anti-climate nature of the town's Energy Plan," he stated.

Melone went on to describe the energy plan as "a breach of the public trust to current and future generations;" claims it bans commercial solar projects on "roughly 99 percent of the town's area," and attacks the process under which the plan was written and then approved by the town Planning Commission and Select Board.

In addition, the Allco Renewable complaints against the plan filed in three courts this year have also challenged provisions of Act 174, the state's 2016 energy planning legislation. The law is intended to give more deference before the Public Utility Commission to communities over the siting of large energy projects.

The key provision in these cases allows regional commissions with a state-approved energy plan — which BCRC has — to certify that town plans meet state requirements and standards.

On Thursday, 25 commissioners from BCRC member towns voted to certify Bennington's energy plan, one of the first adopted under Act 174. None were opposed.

Prior to the vote, BCRC Executive Director James Sullivan and Planner Catherine Bryars, who worked with town officials on the energy plan, reiterated that it was prepared and adopted in a thorough process, and they believe it fully complies with Act 174 and other planning standards.

Answering a commissioner who asked about potential liability, Sullivan said the BCRC could be liable for damages claimed by the developer, but he doesn't believe individual commissioners could be.

He said the firm representing the town and planning commission in Environmental Court has filed a motion to dismiss the Allco Renewable complaint, adding, "We really think it has no merit whatsoever."

Sullivan said the BCRC "has received no order from any court telling us to stop this process, so we are going through this process."

Merrill Bent, of Woolmington, Campbell, Bernal & Bent, representing the defendants, filed the motion to dismiss, contending in part that the appeal and complaint are not proper for the venue.

Allco Renewable, which has plans for at least three commercial solar arrays in Bennington, has now registered similar complaints and challenges concerning the energy plan in three court venues. All were filed since the town Select Board approved the energy document Jan. 22 and sent it to the commission for additional review.

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The most recent action was initially filed Feb. 18 as an appeal of the plan in Superior Court Environmental Division, naming the town and the BCRC as defendants. A longer complaint listing grievances and seeking declaratory and injunctive relief was filed Feb. 22

A more wide-ranging suit filed Jan. 25 in Chittenden Superior Court Civil Division against those defendants and individually against several Bennington officials and residents. That action, which raised constitutional issues, was transferred Feb. 26 to U.S. District Court.

The federal court complaint was dismissed Feb. 28 at the request of the developer, who about a week earlier had filed in Environmental Court.

Among other arguments, Bent contends in her dismissal motion that the Environmental Court lacks jurisdiction concerning the subject matter in the appeal and complaint, saying the court is established to hear appeals of decisions by certain municipal panels. She said the appeal did not follow any adverse decision by a local board with respect to the property owner, called PLH, LLC, a corporate entity controlled by the developer.

Of the further complaints and requests for relief, Bent said in part that the court "is not intended to establish an avenue for the general airing of grievances. The court's jurisdiction is specified by statute."

She adds that the developer's proposed Chelsea and Apple Hill solar projects in Bennington predate the energy plan and would not be affected by its provisions. "As such, the January 22, 2018 Energy Amendment has no impact on those projects," she said.

In the 43-page complaint, with multiple exhibit attachments, Allco is seeking declaratory and injunctive relief from the court and damages. The complaint contains many of the arguments and allegations in the original suits, focusing on the alleged negative effects on the developer and commercial solar projects in Bennington that would follow certification of the energy plan.

In the current appeal, the developer and PLH also 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 to 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. Both town boards approved it unanimously.

The developer's complaint in environmental court was filed by the firm, Paul Frank & Collins, of Burlington.

They are appealing the prior and ongoing adoption processes 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 under Act 174.

Melone, Allco Renewable's vice president and general counsel, could not be reached Friday for comment on the BCRC vote.

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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