“I think the main thing is there are quite a few of us who think solar is important but it needs to be on the right site,” said Peter Lawrence, a local attorney and one of those opposed to a settlement with a developer that the board is considering.
The board has discussed an offer from Allco Renewable Energy (Ecos Energy) that includes a revised project site plan and a $200,000 payment to the town if Bennington drops its opposition. The town has opposed a Supreme Court appeal the company mounted over the Public Utility Commission’s 2016 rejection of a certificate of public good for the first of the two adjacent solar projects.
Changes from the original plans include shrinking the size of the cleared areas and the footprints of the two solar arrays, and leaving or creating wider natural vegetation buffer zones around the sites, which are northeast of the Route 7-Route 279 interchange.
Dianna Leazer, a resident of the Apple Hill area, and others have said they believe the case could set a precedent around the state, as the Public Utility Commission based its 2016 decision in part on incompatibility with the town plan. The state Department of Public Service is also opposing the appeal.
The commission determined that the project called Chelsea Hill Solar wasn’t appropriate for the Rural Conservation District, in part because of its visibility and the extent of tree cutting.
The second project, Apple Hill Solar, is before the Public Utility Commission for a certificate of public good, and the commission has agreed to consider the revised site plan.
The town has been granted intervenor status in the permit process for both projects.
In explaining the developer’s position, Senior Project Manager Brad Wilson said he believes there has been a significant effort to address the concerns raised by residents of Apple Hill and others.
“We responded to those concerns,” he said Tuesday, “and I think this is a good settlement for the Selectboard to consider.”
The amended Chelsea Hill plan reduced the amount of forest to be cut from 14.8 to 8.6 acres, while the Apple Hill Solar amended plan reduced the amount of forest to be cut from 9.9 to 7.3 acres.
Wilson also contended that, while some opponents have said they believe solar projects aren’t permitted at all in a Rural Conservation District, the location of an existing solar array shows that isn’t the case — that it depends on the suitability of the specific project for the site.
Wilson added that he believes the developer’s offer of $200,000 to the town has been misconstrued as “a bribe” by some, but the developer is offering that in combination with changes that address residents’ concerns about impacts on a scenic area.
The payment can be considered as an “impact fee,” he said, which is fairly common to help a community cover its review or permit costs from a large project.
The settlement offer includes the benefits of tax revenue from the project, he said, and positive impacts it would have in helping to meet state and regional goals for development of alternative energy.
After another discussion and further comments from the residents July 24, the Selectboard entered an executive session with town attorney Robert Woolmington but did not reach a decision on the settlement, according to board member Donald Campbell. They met again Monday in executive session for about two hours without taking a vote, he said.
Campbell said he expects discussion in open session and a possibly a vote on the proposed settlement when the board meets Aug. 14.
Campbell is acting as chairman because Chairman Tom Jacobs, an attorney, has recused himself from the deliberations because of a potential professional conflict.
State Rep. Mary Morrissey, R-Bennington, is among those who have closely questioned board members at meetings about the projects, the proposed settlement and their intentions. She questioned whether the board might be violating the state’s open meeting law by discussing the matter in closed session but announcing it would delay a vote until a future meeting.
Morrissey has waited outside two executive sessions, hoping to learn whether a vote would be taken afterward. In each case, she said, there was no good place for anyone to wait outside the board meeting room. In one instance, she waited in her car.
Echoing those concerns, Annette Smith, of Danby, executive director of Vermonters for a Clean Environment, said in an email, “Last week, the Bennington Select Board went into executive session without making any accommodation for people who wanted to stay until they came out. The reasoning was that the Select Board was doing the interested public a favor by telling them they were not going to take any action or vote, so they did not have to stay. [Monday] the same thing occurred.”
The regular board meetings are held at the Bennington Firehouse, while the meeting Monday evening was at a small conference room at the closed town offices.
Asked whether there had been discussion of providing more space for people to wait outside an executive session, Town Manager Stuart Hurd responded Tuesday via email, “Not at this time.”
He also said state law “does not mention the need to provide a place for the public to wait while an executive session is held.”
Smith and Morrissey both said a vote could be taken after an executive session if proposed by any member, regardless of whether there was a prior statement saying there would be no voting.
Campbell said Tuesday the Selectboard has closely followed the advice of its attorney in discussing the issues and the town’s options in executive session without coming to any resolution or a vote. He said the same is true of avoiding public discussion of the issue so far because of the litigation.