Town, solar developer sign off on settlement
This story was updated on Sept. 16, 2018 at 8:50 a.m.
BENNINGTON — The Select Board and Allco Renewable Energy agreed Friday to a final version of a settlement agreement concerning the developer's proposed solar projects here and related permitting and legal disputes.
After meeting in emergency session Wednesday to consider the five-page negotiated agreement, the board decided in executive session to request four language revisions that were based on questions and comments from residents during the two-plus-hour meeting. The board also voted unanimously to approve the settlement if the developer raised no objections to the changes.
Town Manager Stuart Hurd said Friday afternoon that Allco Renewable and company principals Thomas and Michael Melone had agreed to the revisions and that the board members also had signed off on the agreement.
"I'm pleased with that," he said. "I know not all the residents will be pleased, but I think this is probably the best we could do for the town."
Residents of the Apple Hill area, where two controversial solar projects are proposed on a scenic hillside east of Route 7, said after the meeting that, even if changes they suggested were included in the settlement, they will continue to oppose the projects during the permitting process before the state Public Utility Commission.
But the town now has agreed not to oppose Allco's adjacent Chelsea Solar and Apple Hill projects on Apple Hill. The town also agreed to a formula under which two other proposed projects, planned for sites west of Route 7, might be approved if they can meet requirements for preferred solar sites under Bennington’s 2017 Town Plan.
The developer has agreed to pay the town $202,250 to cover its legal expenses related to opposing the Allco projects and defending against suits and other challenges since the town joined abutters in their opposition three years ago. The payment also covers about three-fourths of the cost for town staff time dedicated to Allco projects.
All outstanding claims against the town would be dropped by the developer. Those include a court challenge related to the town’s Energy Plan, which defines preferred areas where solar projects should be allowed, and claims of damages over costs sustained by the developer while attempting to get projects permitted, and over alleged constitutional rights violations.
And Allco agreed in the settlement not to develop an orchard site it owns off Apple Hill Road during the life of the two solar projects.
Among the proposed revisions to which the developer agreed include striking language that calls on the town to declare it agrees that the revised Chelsea solar plan “is consistent with the Town Plan in effect in 2014,” when the projects were proposed.
Residents who spoke Wednesday said that language is unnecessary, since the town was agreeing to drop its opposition, and it is likely to set a precedent for future projects and undercut the continued opposition of Apple Hill residents and others.
And the revisions include language providing more flexibility on whether fencing at the solar sites will have dark mesh covering as part of the screening plan. Opponents had worried the material to be used could create a black box effect when viewed from below, especially during winter.
Thomas Melone, CEO of Allco Renewable Energy, said in an email late Friday that the agreement “puts us on a path to end all litigation with the town, improve the environment, bring addition tax base to the town, and reduce Vermont’s dependence on fossil fuels.”
He added, “This was a long and hard-fought dispute with complex legal and constitutional issues. We believe the result is a fair and reasonable resolution to the long-running dispute with the town.”
Melone thanked the board and town manager “for their leadership in resolving this matter without additional protracted civil litigation.”
Thrown ‘under the bus’
"This was an extremely difficult vote for our board, but we let discretion be the better part of valor and made the tough call," Vice Chairman Donald Campbell said Friday. "The PUC threw us under the bus — plain and simple. For three years we fought a good fight and got a lot of hard-won concessions. We went as far as can be justified on the taxpayer’s dime, yet thankfully, recouped nearly all of our costs at the end."
Campbell had said the board called the emergency meeting in light of an Aug. 30 PUC decision that allowed a revised Chelsea Solar project design to be considered for permitting under the former Town Plan requirements, which were adopted in 2010. He said the town thought it would win the argument that it should fall under the more rigorous siting requirements adopted in 2017.
“We really thought we were going to win on that,” Campbell said Wednesday. “I’m thinking the PUC miffed it.”
Both of the Apple Hill solar projects have been revised with a smaller footprint since they were proposed in 2014. The Chelsea project as resubmitted, after first being rejected by the PUC, is 42 percent smaller in its footprint than the original design and now calls for natural screening, and the Apple Hill project was revised so that it is 26 percent smaller and also has natural screening.
If the town appealed further, those factors might convinced the PUC to approve the updated plans, Campbell said, which would leave the town with less than it would have gained under the settlement agreement, and without its legal and staff time costs recovered.
Lora Block, a member of the Apple Hill Homeowners Association, said on Thursday that she was "extremely disappointed and upset that the town has decided to settle with these predatory developers."
Block vowed that she and other residents will continue to be involved in the permitting process without the town.
Effects on scenery
Board members were grilled Wednesday by residents of the Apple Hill neighborhood who decried the potential effect on the hillside view from the Bennington Battle Monument, Mount Anthony Country Club, the state Welcome Center just north of the downtown and other locations.
Maru Leon, co-owner of the country club, said the scenic views that will be disrupted are not only visible from Apple Hill but also from the golf course, the Monument and elsewhere.
She urged the board to take the visual impact on tourism and on the entire town, saying “this is the reason billboards are banned” in Vermont.
Leon and others contended that despite natural screening around the project sites, the solar arrays will be clearly visible from higher elevations, such as the campus of Southern Vermont College.
Block said a green mesh material proposed as part of the fence screening actually appears black. She said she fears looking at Apple Hill, especially during the winter, and seeing “acres and acres of black boxes."
Block proposed the revision regarding fence covering in the project screening plans, which was included in the final agreement.
The residents urged the board to continue fighting Allco over what they said was an important issue for the entire town, not just the Apple Hill area. The visual effects will be evident, they said, for travelers entering Vermont via Route 7 from the south, on Route 279 from New York state to the west and via Route 9 from points east.
“We can go forward and fight this,” said Rick Carroll.
Jim Therrien writes for New England Newspapers in Southern Vermont and VTDigger.org. Email: firstname.lastname@example.org. @BB_therrien on Twitter.
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