Solar siting law faces first test in Bennington

A large solar-power installation along Route 30 in Sudbury, Vt., is the first in a series planned or proposed around the state by Allco Renewable Energy Ltd. The company has gone to court to challenge a new state law intended to give towns more voice in where such projects are built. Joan K. Lentini photo

 

By EVAN LAWRENCE
Contributing writer

BENNINGTON, Vt.

A new state law that was intended to give Vermont’s towns more of a say in the placement of renewable energy projects is facing its first legal test in Bennington, where a developer’s proposal for several large solar power projects has become the focus of controversy.
The developer, Allco Renewable Energy Ltd., is challenging the town’s right to regulate the projects under a state law enacted in 2016.

At issue is a town energy plan adopted by the Bennington Select Board in January. Under the provisions of the new state law, the board then passed the plan along to the Bennington County Regional Commission for its approval.

Michael Melone, Allco’s vice president and general counsel, sent letters to the commission’s board members in which he railed against what he called “the true anti-solar and anti-climate nature of the town’s energy plan.”

The commissioners accepted the town’s plan in spite of that, forwarding it to the state Department of Public Service for final approval. It is the first town energy plan to receive state recognition.

Now Allco is challenging the energy plan in the Environmental Division of the state’s Superior Court. The company claims the process by which the town created the plan was flawed and that the plan unfairly restricts solar developments and Allco’s constitutional rights. Allco also questions whether the state can delegate authority to approve town energy plans to a regional commission.

Allco did not respond to requests to comment for this story. But local officials suggested they were unfazed by the legal challenge.

“I’m not sure what effect Allco’s suit will have,” said Jim Sullivan, the executive director of the Bennington County Regional Commission. “We haven’t changed anything we’re doing in response to the lawsuit.”

 

Giving towns a role
Vermont has set an ambitious goal of obtaining 90 percent of its energy from renewable sources by 2050. Increasing commercial electrical generation from solar, wind, hydro and biomass is an important part of that strategy.

The state Public Utility Commission has the final authority over whether such projects can proceed. The PUC, however, isn’t bound by local land-use regulations or plans. That has caused controversy in recent years as the commission has approved a series of large-scale solar and wind power installations over the objections of the towns where the projects were to be built.
Legislators responded to the controversy by passing Act 174. The law, signed by then-Gov. Peter Shumlin in 2016, provides a way for towns to have greater say in the approval process for new energy facilities.

Under the new law, the state Department of Public Service works with the state’s regional commissions to create energy plans for each region. The plans must support the state’s overall energy policies and goals. Towns draw up their own plans, consistent with the regional plan, and submit them to the regional commission for approval.

A key feature of the new law is that towns with state-approved energy plans are entitled to “substantial deference” when the Public Utility Commission is considering an application for a new energy facility.

Sullivan said the Bennington County Regional Commission drafted its first energy plan in the 1980s and was updating the latest version when legislators passed Act 174. The commission was one of three regional commissions chosen for a state-funded energy plan pilot project, and its plan was the first to be completed and submitted under the new law.

 

Favoring smaller-scale projects
Although the focus at the moment is on choosing sites for renewable energy facilities, Sullivan said, “the rest of the plan is much more important.”

The plan includes an analysis of the region’s current energy use as well as strategies for meeting the state’s goals across all energy sectors, including transportation and building efficiency. The plan also points out that to meet state goals, overall energy use in Bennington County will need to drop by about one-third, while the use of electricity will need to increase to replace fossil fuels in transportation and heating.

Bennington Town Manager Stuart Hurd said that in drafting its energy plan, the town wanted to prioritize smaller-scale renewable energy projects rather than large installations.

“We have seen tremendous growth of solar projects in Bennington,” Hurd said. “There’s been some opposition from adjacent landowners. The town felt the need to adopt an ordinance. We didn’t want 20-, 30-, 40-acre projects. We wanted projects that were small scale, well screened and well sited.”

The town had passed a solar energy ordinance that restricts ground-mounted projects to sites of less than 10 acres and requires screening. The local law doesn’t affect residential installations or solar panels mounted on the roofs of industrial buildings.

But town officials recognized that local regulations weren’t enough to sway the Public Utility Commission. When Act 174 offered towns a greater voice at the state commission, Bennington went to work.

“The regional plan sets the context and framework for the towns,” Sullivan explained. “The town plan contains a lot more background and history.”

For renewable energy installations, Bennington’s energy planning committee started with the regional commission’s maps, which showed the availability of renewable energy resources, such as sunny or windy locations, and environmental constraints such as wetlands and steep slopes. The town added its own constraints, such as historic sites, intrusion on scenic views, and incompatible development. It also identified preferred sites for renewable energy development. Once adopted, the energy plan became part of the town’s comprehensive plan.

“The Allco folks attended the meetings during the planning process, but they don’t like the outcome,” Hurd said.

 

Multiple projects pending
Allco had submitted proposals for three solar installations, each for 2 megawatts or more, to the PUC before the town adopted its solar ordinance and energy plan. One of the projects, called Battle Creek 1, is proposed on undeveloped land to the west of Route 7A and is in an area the town designated a preferred site for solar development.

“The town supports that one,” Hurd said.
The town and developer came to an agreement about screening for that project in late March, and the PUC is reviewing the developer’s application.

Allco owns more land to the east of Route 7 where it wants to build two more solar projects, dubbed Chelsea and Apple Hill. People who live in the area have strenuously objected to both.
The PUC denied Allco’s first application for the Chelsea project, and the company resubmitted it with provisions for more screening to shield the project from view.

“We opposed the original plan,” Hurd said. “The new plan is better. We may still oppose it, but not as strongly.”

Allco’s Apple Hill project is also on its second application.
“That was filed before the new town plan that says that’s not a proper site,” Hurd said. “The town has no position on it.”

None of the three proposals is affected by the town’s energy plan and solar ordinance, since the projects pre-date them. The issue seems to be a parcel adjacent to Battle Creek 1, where Allco has said it wants to build two more solar projects, Battle Creek 2 and 3. It has not yet submitted plans for them.

“It really is a confusing situation,” Hurd said. “There are so many parties involved in this thing. The suit is being watched statewide. Bennington is one of the first communities to have a plan. It will set a precedent for the state. The town isn’t sure that the environmental court even has jurisdiction.”

 

Some developers see upside
Allco, which has its main office in New York City, has completed about 10 solar projects across the country. Its only active installation in Vermont is in Sudbury, a 2-megawatt facility that went into service in April 2016. In February, the PUC approved two other proposed projects, with a combined 7.1-megawatts, in Rutland Town.

Despite the company’s characterization of Act 174 as being hostile to solar power, other solar developers in Vermont say they don’t see the new law as an obstacle.

Ralph Meima, the development director for Green Lantern Group, a renewable energy developer with an office in Waterbury, suggested it might be helpful to have towns specify areas where they’d like to foster renewable energy projects.

“Act 174 has raised everyone’s awareness and vocabulary a couple of notches,” Meima said, adding that before the act was passed, “it was harder for us to have conversations with select boards about preferred sites.

“Everyone on all sides is much better informed than they were three or four years ago,” Meima said.

The new law “created standards against which a town’s energy plan has to be certified,” he said. “It’s put towns on notice that they need to update or amend their energy plans and do it in concert with the regional commissions.”

Green Lantern has completed about 60 projects in nearly 50 towns, Meima said. It owns a 500-kilowatt installation in Pownal, the next town south of Bennington. In late March, it proposed three more projects of about 150-kilowatts each, all on town-owned landfills.

“The projects proposed in Pownal are relatively small,” Meima said. “They’re little projects tucked into appropriate sites. They don’t move the needle on the town’s energy goals as much as Allco’s projects.”

Unlike Allco, “Green Lantern was started by Vermonters, and all the employees are based in Vermont,” Meima said. “We’re 100 percent Vermont-focused. Because we’re all members of Vermont communities, we’re completely down there in the trenches with Act 174 and the things that define how solar moves forward. For us, 174 is just another evolution of the regulatory environment.”

 

Tangle of lawsuits
In Bennington County, Dorset and Sunderland are nearing completion of their draft energy plans, Manchester and Pownal are under way, and Stamford and Peru are just starting, Sullivan said.
Sullivan said that to the best of his knowledge, Allco’s Bennington projects are the only proposals in the county for solar installations larger than 1-megawatt.

In addition to its complaint in the state’s environmental court, Allco filed suit in January in Chittenden County Superior Court against the town, the Bennington County Regional Commission, town officials and several individuals opposed to the Apple Hill and Chelsea solar proposals. In late February, Allco moved the Chittenden County case to U.S. District Court but a few days later withdrew the suit.

In late March, Allco principals Michael and Thomas Melone filed another suit against the state and the Vermont Agency of Transportation. The Melones objected to setbacks the state requires along an unused railroad line on the east side of the Battle Creek 1 project. The distance, which is more than what Allco and the town agreed to, would decrease the number of solar panels that could be put on the site.

Bennington and the regional commission are now suing Allco to recover almost $22,000 in legal fees incurred in defending themselves against the company’s various legal challenges. They have asked to have the suit in environmental court dismissed and are accusing Allco of “forum shopping,” or filing complaints in multiple courts in hopes of finding one that will rule in its favor.
“We have worked long and hard to foster collaborative relationships between towns and developers,” Sullivan said. “We want people to see developers in a positive light as long as their plans are well-designed and presented.”

In the case of Allco, “the developers have been pretty aggressive,” he added. “They’re tainting the atmosphere a little bit. From my perspective, Allco is probably not helping.”
Hurd said that if the environmental court dismisses Allco’s lawsuit, “that would put us on an equal footing with one another.”

“If Allco thinks Battle Creek 2 is a usable site for solar, it may argue that it should be a preferred site,” he added. “The town would at least listen to its arguments, but it may not agree.”

He said the company should “come back to the planning commission and discuss it. Suing just gets everyone’s back up.”