BENNINGTON — Residents of the Apple Hill area are appealing to the Vermont Supreme Court a permit issued in late September for the 2.0 megawatt Apple Hill Solar project.
The project is one of two adjacent facilities proposed in the area by Allco Renewable Resources, both of which have met with staunch opposition from neighbors and other residents.
The second project, Chelsea Solar, also is proposed with a 2.0 megawatt capacity. It remains in the permitting process before the state Public Utility Commission.
The appeal notice was filed Thursday with the court clerk's office in Montpelier on behalf of the Apple Hill Homeowners Association and Libby Harris, a resident who was began questioning the Allco Renewable solar projects shortly after they were filed in 2015 and became an intervenor in the PUC permitting process.
Harris previously filed an appeal with the PUC of the commission's Sept. 26 decision granting the permit for Apple Hill Solar.
The opponents' attorney, L. Brooke Dingledine, of Valsangiacomo, Detora & McQuesten, of Barre, filed notice with the court of the issues to be raised in the appeal.
Those include whether a PUC decision in February 2016 concerning the Chelsea project should have bearing on the Apple Hill project as well.
That decision, denying Chelsea a permit, stated that the Bennington Town Plan and associated documents "contain `a clear written community standard' prohibiting the issuance of a [permit] for a similar project on the same parcel of land in the [town's] Rural Conservation District," according to the appeal.
In approving the Apple Hill permit in September, the PUC concluded, however, 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."
Reached on Friday, Dingledine said the Supreme Court appeal will argue that the 2016 PUC decision did establish a precedent that should apply to all projects in that district. That would be the case, she said, even though both solar projects have since been reduced in size by the developer.
"They [the PUC] decided that the standard doesn't exist anymore," Dingledine said of the decision to grant Apple Hill Solar a permit.
After the Chelsea permit denial, the developer appealed to the Supreme Court but later withdrew that appeal before a ruling was issued and submitted a new project design with a smaller footprint — now in the PUC permitting process.
The developer's withdrawal from the court appeal, Dingledine said, means that the 2016 PUC denial for Chelsea and the reasoning behind that decision remains unchallenged.
Allco Renewable in 2017 presented to the town revised project designs for both the Chelsea and Apple Hill projects, each of which reduced the array footprint and amount of land to be clear-cut and increased the depth of vegetative screening around the borders.
The town of Bennington, which had also opposed the two projects and became involved in the Supreme Court appeal, dropped its opposition to the revised, smaller Apple Hill project in August 2017.
In September, the town and Allco Renewable reached a comprehensive settlement involving five solar project proposals in Bennington, in which the town agreed not to oppose either the Chelsea or Apple Hill projects further.
Among other concessions, the developer agreed to pay the town $202,250 to cover most of the attorney fees and staff time costs incurred in responding to multiple permitting filings from Allco Renewable, court appeals or suits filed by the developer.
The opponents' Supreme Court appeal also will question whether distance from the project site "can serve as a mitigating factor in reducing the adverse impact of a project on aesthetics ."
Opponents have argued that solar arrays on the hillside east of Route 7A as the highway climbs north from Bennington will despoil the view from such prominent sites as the Bennington Battle Monument, the Mount Anthony Country Club and Southern Vermont College.
In its decision on the Apple Hill Solar permit, the PUC did not agree with the opponents that the project would have an undue adverse impact on the view from the Battle Monument and other sites. The commission said it agreed with the statement that "distance serves as a mitigating factor in reducing the adverse impact of a project on aesthetics."
But Dingledine contends that argument "in my mind, makes absolutely no sense."
She said that distance, unlike screening of a solar site, is questionable as a form of mitigation, and that permitting decisions that have taken distance into account involved smaller project sites and a greater distance.
The opponents appeal also will question whether the PUC "has jurisdiction or authority to issue a [permit] for a commercial solar electric generation facility project, which is proposed in part, on land which is burdened by a deed restriction prohibiting any commercial use or commercial development on the land."
And it will question "whether the PUC erred by admitting incompetent and unreliable evidence" without foundational testimony at a hearing, and when not subject to cross-examination and over the objection of the appellants.
Dingledine said she will filed a detailed brief with the appellants' arguments within two months. She said that a ruling in the appellant's favor would also likely affect the Chelsea project in the permitting process.
Officials with Allco Renewable Resources could not be reached for comment.
Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien