[B]ENNINGTON — Despite last-minute letters from a solar developer warning of dire consequences, regional planning commissioners were unanimous Thursday in approving Bennington’s new energy plan.
In a letter, Michael Melone, of Allco Renewable Energy Ltd., accused the commissioners of “signing the death warrant of many Americans, and endorsing the anti-climate agenda of Bennington’s NIMBYS.”
“No amount of make-up or window dressing can mask the true anti-solar and anti-climate nature of the town’s Energy Plan,” Melone wrote.
Melone went on to describe the energy plan as “a breach of the public trust to current and future generations.” He claims it bans commercial solar projects on “roughly 99 percent of the town’s area,” and attacks the process under which the plan was written and then approved by the town Planning Commission and Selectboard.
Allco Renewable has filed legal complaints against the plan in three courts this year and has challenged provisions of Act 174, the state’s 2016 energy planning legislation. The law is intended to give communities more of a say in determining where large energy projects are to be built.
The 25 members of the Bennington County Regional Commission unanimously voted last week to certify Bennington’s energy plan, one of the first to be adopted under Act 174.
While the energy plan apparently would not affect Allco’s Bennington projects now before the state Public Utility Commission, the plan could place restrictions on future projects or any that had to be resubmitted for permitting.
The developer also is challenging provisions of Act 174 on regional approval of municipal plans, which could affect projects across the state.
James Sullivan, executive director of the commission, reiterated before the vote that the energy plan fully complies with Act 174 and other planning standards. While the Bennington County Regional Commission could be liable for damages claimed by the developer, Sullivan said he doesn’t believe individual commissioners could be held liable.
He said the firm representing the town and planning commission in Environmental Court has filed a motion to dismiss the Allco Renewable complaint, adding, “We really think it has no merit whatsoever.”
Sullivan said the BCRC “has received no order from any court telling us to stop this process.”
The three legal complaints
Merrill Bent, of Woolmington, Campbell, Bernal & Bent, who represents the defendants, filed the motion to dismiss, contending in part that the appeal and complaint are not proper for the venue.
Allco Renewable, which has plans for at least three commercial solar arrays in Bennington, has now registered similar complaints and challenges concerning the energy plan in three court venues. All were filed since the town Selectboard approved the energy document Jan. 22 and sent it to the commission for additional review.
The most recent action was initially filed Feb. 18 as an appeal of the plan in Superior Court Environmental Division, naming the town and the BCRC as defendants. A longer complaint listing grievances and seeking declaratory and injunctive relief was filed Feb. 22.
A more wide-ranging suit filed Jan. 25 in Chittenden Superior Court Civil Division against those defendants and individually against several Bennington officials and residents. That action, which raised constitutional issues, was transferred Feb. 26 to U.S. District Court.
The federal court complaint was dismissed Feb. 28 at the request of the developer, who about a week earlier had filed in Environmental Court.
Among other arguments, Bent contends in her dismissal motion that the Environmental Court lacks jurisdiction concerning the subject matter in the appeal and complaint, saying the court is established to hear appeals of decisions by certain municipal panels. She said the appeal did not follow any adverse decision by a local board with respect to the property owner, PLH LLC, a corporate entity controlled by the developer.
Of the further complaints and requests for relief, Bent said in part that the court “is not intended to establish an avenue for the general airing of grievances. The court’s jurisdiction is specified by statute.”
She adds that the developer’s proposed Chelsea and Apple Hill solar projects in Bennington predate the energy plan and would not be affected by its provisions. “As such, the January 22, 2018 Energy Amendment has no impact on those projects,” she said.
In the 43-page complaint, with multiple exhibit attachments, Allco is seeking declaratory and injunctive relief from the court and damages. The complaint contains many of the arguments and allegations in the original suits, focusing on the alleged negative effects on the developer and commercial solar projects in Bennington that would follow certification of the energy plan.
In the current appeal, the developer and PLH also seeks party status in the BCRC’s energy plan certification process, “as owner of property that will be subject to unreasonable or inappropriate restrictions of present and potential use by the Energy Amendment.”
The energy plan — a 28-page amendment to the larger town plan — was developed by the town Planning Commission with the assistance of a citizen group and town and BCRC staff members before being recommended in November to the Selectboard for approval. Both town boards approved it unanimously.
The developer’s complaint in Environmental Court was filed by the firm, Paul Frank & Collins, of Burlington.
They are appealing the prior and ongoing adoption processes for the town’s energy plan, say it failed to follow state criteria for such plans, and argue that the plan unfairly restricts solar development and violates the appellants’ constitutional rights.
The developer also seeks an injunction against the BCRC certifying either the town energy plan or a recent town screening ordinance for energy facilities. And they challenge the constitutionality of the state delegating authority to approve energy plans to a regional commission under Act 174.
Melone, Allco Renewable’s vice president and general counsel, could not be reached Friday for comment on the BCRC vote.
