Court sends solar project back to regulators
BENNINGTON — Key issues raised in a long-running dispute over permitting for the Apple Hill Solar project have been remanded back to the state Public Utility Commission by the Vermont Supreme Court.
In its decision, the court faulted some of the reasoning the PUC followed in September 2018 in approving a certificate of public good for the 2-megawatt solar project — one of two commercial generating facilities proposed by Allco Renewable Energy Ltd. in the Apple Hill area, east of Route 7.
In a 19-page decision issued Friday, the court generally found that the PUC had made errors while determining that Apple Hill Solar "would not interfere with the orderly development of the region and would not have an undue adverse effect on aesthetics."
Such alleged effects were at the center of a court appeal of the permit decision filed last year by Libby Harris, an abutter, and other members of the Apple Hill Homeowners Association.
Next steps unclear
The Supreme Court's decision does not appear to find that the commission acted outside its regulatory purview in granting the permit, but states that the PUC failed to address key questions in reaching its decision.
The court decision concludes that the solar permitting authorization by the PUC is "reversed and remanded for further proceedings consistent with this opinion."
The next steps in a permitting process that began in 2015 remain unclear, although options could be for the PUC to seek further comments from the developer and the opponents, hold further hearings and/or reconsider existing comments and decisions in the record for Apple Hill Solar and another 2-megawatt Allco project, Chelsea Solar, which is proposed at a nearby site and is the focus of a separate, ongoing Supreme Court appeal.
Kyle Landis-Marinello, general counsel for the PUC, said Monday that he could not yet comment on the next likely steps concerning Apple Hill Solar following the Friday ruling, which will require internal commission discussions.
When it approved a certificate for Apple Hill last year, the commission wrote that the Bennington Town Plan "does not constitute a clear, written community standard," regarding plan sections cited by the opponents.
Language in the plan had been cited concerning Chelsea Solar, before it was denied a permit by the PUC in 2016.
That denial focused on language that pertained to allowing development in the Rural Conservation District, which includes part of the solar site.
Yet in approving the Apple Hill project in 2018, the PUC wrote that the town plan, in fact, "does not constitute a clear, written community standard."
The commission added, "We are not bound by our denial decision [for Chelsea in 2016], which by its own terms was limited to the facts of that case."
In their appeal to the court, the opponents argued that the 2016 Chelsea decision did establish a precedent that should apply to all projects in that district
The court's decision Friday states that in approving Apple Hill, the PUC also relied in error on the meaning of the town of Bennington's 2017 decision to withdraw its opposition to the Apple Hill and Chelsea projects as part of a comprehensive settlement with the developer that encompassed both projects.
That decision by the Select Board cannot be used to conclude the town now believes the town plan doesn't "constitute a clear, written community standard intended to preserve the aesthetics or scenic, natural beauty of the area ," the court wrote.
Other reasons that were cited by town officials for dropping opposition to the Allco Renewable projects included that both had been reduced in footprint size by the developer, and that Allco had agreed in an overall settlement to pay more than $200,000 to the town to cover legal expenses incurred in fighting the projects and town staff time costs.
The court ruling adds that the justices "do not reach the question of whether the project runs afoul of that standard. This is a question the PUC must address on remand. We simply conclude that the PUC erred in declining to actually apply the standard in the town plan in evaluating whether the project's effect would be undue."
How reconsideration of the Apple Hill application might affect permitting for the Chelsea Solar project also remains unclear.
That project was rejected for a permit by the PUC in June, largely based on the determination that it would constitute, along with Apple Hill, a single large solar project that would exceed a state limit for commercial projects of 2.2 megawatts. That had been the contention of project opponents, including Harris and the homeowners association.
Allco Renewable Energy has appealed the Chelsea decision to the Supreme Court.
Company President and Senior Counsel Thomas Melone could not be reached for comment on the recent court decision.
Reached following the Supreme Court's ruling, Lora Block, of the homeowners association, said the group hadn't yet heard how the PUC is likely to proceed now in the Apple Hill case.
"We won't know for a while what the next steps might be," she said in an email.
Meanwhile, Annette Smith, executive director of Vermonters for a Clean Environment, which has monitored the permitting process for solar projects in Bennington and elsewhere in the state, said via email Monday: "On the decision itself, it provides clear guidance to towns and Vermonters who are trying to understand the role of town plans in the review of energy projects. The statute says that the PUC must give due consideration to the recommendations of the municipal and regional planning commissions, the recommendations of the legislative body of the municipality, and the land conservation measures contained in the plan of the affected municipality."
Smith added, "In this case, the PUC ignored the town plan land conservation measures, claiming they were too close to zoning. However the PUC has said that they require 'specific' policies that are 'specific' to the site, so until this decision, it was unclear what a town plan could contain that was specific enough but not too specific. While not directly addressing the claim by the PUC that the Bennington town plan was more like zoning, the [Supreme Court] essentially tosses that concept because it tells the PUC to address the town plan's specific standards, which in Bennington's case are specific to the site."
Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien
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