[B]ENNINGTON — A solar developer who has been highly critical of a regional energy plan is suing the town over its new energy plan.
The lawsuit filed by Thomas and Michael Melone, of Allco Renewable Energy Ltd., alleges that the plan, which would hamper the company’s effort to build solar facilities in Bennington, is unconstitutional.
Following two public hearings, the Selectboard on Monday approved the 28-page energy section of the plan, which is proposed as an amendment to the Bennington Town Plan. It is believed to be one of the first municipal plans completed and approved under Act 174, the state’s energy planning law.
The plan includes maps showing where commercial-scale solar projects would be preferred and where they are restricted in whole or part.
The lawsuit challenges the state’s legal authority to delegate approval to a regional entity.
Allco’s 60-page complaint includes allegations about the plan’s adoption process, as well as the role of a town Siting Committee.
“Defendants have entered in a civil conspiracy to wrongly injure plaintiffs, and to create unconstitutional and unlawful restrictions against development of solar energy on plaintiffs’ properties,” the complaint states. “Defendants have tortiously targeted plaintiffs based upon false information, discriminatory treatment and not for any legitimate regulatory reason.”
Named in the suit filed Wednesday in Chittenden Superior Court Civil Division are the town, the Selectboard, the Planning Commission; Planning Director Dan Monks; state Rep. Mary Morrissey, R-Bennington; the Bennington County Regional Commission; and other town officials and residents who have opposed two of the company’s solar projects.
“This should come as no surprise,” Thomas Melone said. “They should have seen it coming.”
Morrissey said Thursday she felt it was inappropriate to comment at this time, deferring to town officials and their attorneys. She attended meetings about the developer’s two proposed solar projects and was a vocal supporter of the opponents.
The suit says that “starting in 2015, the town opposed both the Chelsea and Apple Hill solar projects based upon false information, and on no legitimate regulatory grounds. Rather the town opposed the projects based upon political pressure from NIMBY neighbors violating plaintiffs’ due process and equal protection rights under the United States and Vermont constitutions.”
The suit also seeks an injunction blocking the Bennington County Regional Commission from certifying the town energy plan and a town screening ordinance for energy project sites. In addition, Allco is asking for a declaratory judgment that the town screening ordinance violates state law. The plaintiffs contend that the regional commission should have to conduct a formal adoption process with hearings before making any decision on a municipal plan.
The town Planning Commission unanimously recommended the plan in November and passed it on to the Selectboard for public hearings and approval. The Selectboard will next submit the energy section to the Bennington County Regional Commission for approval as part of an amended town plan. Under Act 174, the commission, which had its regional energy plan approved by the state in June 2017, now has authority to approve municipal energy plans in the county.
Reached Thursday afternoon, James Sullivan, executive director of the Bennington County Regional Commission, said via email that he has yet to read through the lengthy suit complaint. “You can say that the BCRC has provided technical planning assistance to the town as requested, and that we intend to continue to meet our statutory obligations under Act 174,” he said.
Sullivan, who oversaw development of the regional energy plan under Act 174 and advised town officials on the municipal plan, has said he believes the town’s plan meets the requirements of the 2016 state legislation.
Town Manager Stuart Hurd said the suit has been forwarded to the town’s insurance carrier.
The suit seeks declaratory and injunctive relief and damages from the defendants, and alleges violations of the Vermont Constitution and U.S. Constitution, the Public Trust Doctrine, the federal Sherman and Clayton anti-trust acts; state consumer protection and other statutory provisions.
Listed as plaintiffs are PLH LLC, which owns property in Bennington, and limited liability corporations involved with the developer’s Apple Hill, Chelsea and Otter Creek solar project proposals. All of the entities are headquartered in Shelburne.
Specific allegations listed in the suit include:
• That the town Planning Commission failed to meet meeting posting, noticing and other requirements in reviewing and recommending the town’s energy plan to the Selectboard.
• That the town’s energy and town plans have “anti-solar provisions” that violate the plaintiffs’ due process and equal protection rights.
• that designating certain areas in town as preferred sites for solar projects and not others violates the plaintiffs’ equal protection and due process rights.
• That the BCRC should have to adhere to the Vermont Administrative Procedure Act requirements in approving an energy plan.
• That a requirement that solar projects are subject to the recommendation of a municipality violates constitutional rights of free speech, equal protection and due process.
• That the defendants’ actions and the energy plan violate the Public Trust Doctrine in that the plan “stifles” solar development and thus allows greater use of fossil fuels that could harm the environment.
• That it represents an anti-trust violation that the town plan works to restrict solar development competition by designating some town-owned property as preferred for solar projects while restricting development in many other areas of town.
