BENNINGTON — The state Public Utility Commission has issued a temporary restraining order blocking further tree removal and other activities on sites in the Apple Hill area where two controversial commercial solar facilities are proposed.
The 2-megawatt Apple Hill Solar and Chelsea Solar projects, both proposed about seven years ago, have yet to receive a certificate of public good permit from the PUC. Battles over permitting for the projects, involving determined opposition from area residents and others, has played out at various times before the PUC, the Vermont Supreme Court, U.S. District Court, Superior Court Civil Division and the Environmental Division.
Following an evidentiary hearing on Friday, the commission issued a temporary restraining order against the developer, Allco Renewable Energy, LLC, and its subsidiaries, preventing "any further tree clearing on any of the property for the proposed projects identified in any [CPG] applications and any property identified in those applications as intended to be part of the projects, including any amendments to those applications that have been approved by the commission, in the Apple Hill area ."
According to the PUC ruling, Annette Smith, of Vermonters for a Clean Environment, had filed public comments June 19 with the PUC, alleging that tree clearing was occurring on the proposed solar sites and that rare, endangered plant species were being disturbed by the work in an area set aside for their protection.
The PUC ruling said further that on June 23, the Agency of Natural Resources filed preliminary comments in response to Smith's comments, stating that ANR "has confirmed that site clearing activity is occurring on the 27-acre parcel on which the Apple Hill and Willow Road [originally Chelsea] solar projects are proposed to be constructed."
The agency stated that the tree-clearing activity raised two concerns: that the developer "is conducting site preparation without a CPG," and that "the site clearing has not been reviewed to ensure that it does not have an undue adverse effect on the environment."
The developer has proposed in permit submissions installing arrays over about nine acres on each of the project sites.
The PUC has set a July 9 hearing via videoconference to consider whether a preliminary injunction against the developer from those activities should be granted. The session also will consider whether the restraining order should be lifted and whether "the tree-clearing activities were site clearing operations without a certificate of public good ," the PUC wrote.
In an email to the Banner Sunday, Thomas Melone, president and senior counsel of Allco Renewable, said, "The PUC's order should alarm every farmer in Vermont, because the PUC is seeking to define what farming is in a very restrictive manner. The TRO is not properly supported and that will be made even clearer as the litigation process continues."
Concerning the endangered plants issue, he added, "Notably, at the TRO hearing, ANR's expert witness confirmed that the white arrow leaved aster can be mail-ordered from Walmart-style nurseries. So the notion that there is some emergency justifying injunctive relief is simply contrary to the law and not supported by the facts."
Many moving parts
As has been typical of the permitting process for the Apple Hill projects, there are other motions, appeals, lawsuits and amended proposals in progress that could affect the fate of CPG permits for Apple Hill Solar and Chelsea Solar (more recently referred to as Willow Road Solar by the developer).
Melone also has suggested keeping sheep and erecting a large barn to support hemp growing on the Apple Hill site. The sheep, he has said, would primarily be for controlling vegetation around the solar panels.
The barn as suggested apparently would hinder the scenic views of Libby Harris, of 531 Apple Hill Road, who lives close to the project sites and has staunchly opposed the projects, and/or other members of the Apple Hill Homeowners Association.
Views of Apple Hill from areas in Bennington like the Mount Anthony Country Club golf course and the Bennington Battle Monument have been a central focus of debate during permitting for both solar projects. The prominent location is on a hillside east of Route 7 as it rises to the north into Shaftsbury.
Opponents argue that the site is scenic and clearly visible to town residents and tourists alike, and therefore important to the area's economy. The project sites totaling about 27 acres also are in the town's Rural Conservation District, opponents have argued, and that zone is intended for limited commercial activity not large commercial projects.
In May the PUC rejected a certificate of public good for Apple Hill Solar citing both those arguments, and Allco is petitioning the PUC for a reconsideration of its decision.
Chelsea/Willow Road solar is currently before the Vermont Supreme Court, where the developer has appealed a 2019 PUC determination that the two projects actually constitute a single larger solar project and therefore above the state's 2.2-megawatt generating capacity limit on such projects.
Following the May 7 PUC ruling on Apple Hill Solar regarding the impacts on a scenic area and the conservation district, opponents said they believe Chelsea/Willow Road solar would have to overcome the same permitting obstacles to receive a CPG.
Allco tactics ripped
Attorney L. Brooke Dingledine, of Valsangiacomo, Detora & McQuesten, of Barre, who represents Harris, the homeowner's association and the country club, filed public comments with the PUC relative to the alleged tree clearing incident.
She included some blistering criticism of Allco and Melone for continually filing motions or suits with the PUC and in courts around the state, which she said seems to have no purpose but to wear down or intimidate opponents of Allco projects.
Dingledine also contended that the PUC should consider the Apple Hill and Chelsea Solar CPG applications voided over the agricultural-use comments and over "material misrepresentations" in statements that Allco had two access routes available to the project sites, which would allow them to be considered as two projects instead of one large project exceeding the state capacity limit of 2.2-megawatts.
Dingledine said in her comments to the PUC: "If Melone wants to become a sheep farmer, then he must withdraw his petitions for his solar projects. Since he has not done so, the actions of site preparation should be viewed by the PUC as a withdrawal or abandonments of Melone's projects ... ."
She said Melone's "agricultural use assertion has an insurmountable problem. By filing [the project petitions] for CPGs, he has subjected his land to the jurisdiction of the PUC and is prohibited by statute to perform site preparation on that land."
The attorney added, "Moreover, Melone's entire agricultural use claim is so absurd and such an obvious pretext, as to not even thinly veil Melone's blatant bad faith assault on the neighbors seeking retribution and revenge on those who stand in his way."
Dingledine continued in her comments, saying that "this behavior is merely the latest in a 6-year-long concerted vendetta to eliminate all opposition to these solar projects. The pattern that has emerged is that when Thomas Melone doesn't get what he wants, he files frivolous lawsuits against countless individuals in his `scorched earth' litigation strategy. It actually appears now that Melone is no longer in the business of developing solar arrays; he is instead in the litigation business, suing anyone and everyone who doesn't cave into his bullying."
Melone responded Sunday in his email, "As to Dingledine's comments, her claims are simply false and slanderous as all her personal attacks on me have been. Notwithstanding this most recent order from the PUC, rest assured that we will continue to pursue our property rights. Vermont law is clear — landowners have the right to engage in agricultural activities on their property, and that is what the PUC is trying to stop even though it has no jurisdiction to do so."
In the past, Melone also has contended that the project opponents have rejected any reasonable move toward compromise to allow the solar projects, and he has often argued that stubborn opposition to solar power facilities is a contributing factor in continuing use of fossil fuels and climate change.
During the PUC hearing on Friday, Allco's forest work contractor, Robert Kobelia, said that work on the Apple Hill site as of the stoppage order had been to bulldoze a path through trees in some areas to prepare for silt fending and mark boundaries. He said no chainsaw work had been done.
Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien