Bid to pause solar permitting over lawsuit denied

BENNINGTON — Requests have been denied to halt the permitting process for three Bennington solar projects because of a lawsuit filed by the developer against the town and others.

Town attorneys sought to pause the process before the state Public Utility Commission for the Chelsea Solar, Apple Hill Solar and Otter Creek Solar projects. They contended that defendants in a suit filed in Chittenden Superior Court by Thomas Melone, of Allco Renewable Energy, Ltd., should not have to battle permitting issues on two fronts.

"The motion is hereby denied because there has been no showing that the counts in the [lawsuit] have anything to do with the review of the petition [for permits] being conducted by the commission in this proceeding," PUC Hearing Officer Michael Tousley wrote Feb. 9 on the Apple Hill project.

In a similar decision, Tousley later denied a stay for the Chelsea project, as did Hearing Officer John Cotter for the Otter Creek project.

Hearings in the permitting process were pushed back because of the town's motion, but are now scheduled to begin next month, with the first evidentiary hearings set for March 22 in Montpelier.

While denying the town's requests for stays, the hearing officers did not preclude further arguments on the subject related to the Allco Renewable Energy suit.

"This order does not foreclose the parties' opportunity in this proceeding to develop the factual record and to make legal arguments related to the issues in the [suit] insomuch as they may relate to the petition and fall within the commission's jurisdiction," Tousley wrote.

He added that the parties could develop such facts in filings during the process and make arguments based on that material in their final briefs on the certificate public good permit requests.

The developer named in the 60-page suit the town, the Select Board and the Planning Commission; Planning Director Daniel Monks; state Rep. Mary Morrissey; the Bennington County Regional Commission (BCRC), and other town officials and residents who have opposed the company's commercial-size solar projects.

The action also challenges project siting aspects in the town's newly approved Energy Plan, the process through which the plan was written and later approved at the Select Board level. The BCRC's authority to approve the town's energy plan also is challenged.

Bennington's 28-page plan is the first municipal plan to be reviewed by a certified regional commission, a new process allowed under Act 174, the 2016 planning legislation relating to regional and municipal involvement in energy project siting.

In a motion to the PUC, attorney Merrill Bent, of Woolmington, Campbell, Bernal & Bent, representing the town, asked that "in the interests of fairness," the permitting proceedings be stayed "pending resolution of the complaint in Chittenden County Superior Court."

Bent added that the town sought to "avoid unnecessary expenditure of resources and time while the Superior Court determines what it does/does not have jurisdiction over ."

The permitting process and the suit should not proceed simultaneously, Bent argued, in part because "the town should not be forced to litigate in front of two different bodies until the jurisdiction questions are resolved, and the only way for that to happen is to stay this proceeding until the Superior Court issues a ruling on that issue."

She concluded, "Finally, and of critical importance, is the fact that the [developer] is suing potential witnesses in this docket. The pending litigation against these witnesses will have the effect of chilling their ability to testify before this body [PUC] ."

In his response to the town's stay motions, Melone argued that it "does not meet the standards for a stay and is based on a frivolous jurisdictional argument Moreover, there is nothing in the [developer's] suit that affects the [permit] proceeding. Other than vague references, the motion does not offer one concrete example of how the suit might affect these proceedings."

The developer has "a right to efficient consideration of its permit application," Melone writes.

He added that "the motions are a transparent effort to abuse the PUC's process by hoping to stall the PUC proceedings to pressure the plaintiffs into dropping the suit ."

Bent countered in her comments, saying, "The truth of the matter is, the [suit] itself is an obvious attempt to intimidate the town in order to continue efforts to skirt the rules and regulations to which everyone else adheres."

The town was joined in its stay request by the Vermont Agency of Transportation regarding the Otter Creek project. It was joined by abutter Libby Harris and the Apple Hill Homeowners Association concerning the Apple Hill project.

The Vermont Department of Public Service also filed a comment with the PUC saying the department "does not object" to a stay in the permit proceedings.

Jim Therrien writes for New England Newspapers in Southern Vermont and Email: @BB_therrien on Twitter.

Note: This story was amended on February 20, 2018 at 9:30 a.m. to correct references to attorney Merrill Bent.


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