A ruling by Vermont’s top court sends a controversial Bennington solar development proposal back to regulators.
In a decision issued Friday, the Vermont Supreme Court sided with neighbors who argued that the Public Utility Commission needs to take into consideration the town plan when deciding on the project.
New York-based Allco Renewable Energy Company has been seeking since 2015 to build a 2 megawatt solar array on a Bennington hillside east of Route 7. The project, called Apple Hill, is in an area designated as a “rural conservation district” in the town plan, which limits development.
To build the project, the developer has to receive a certificate of public good from the state’s quasi-judicial Public Utility Commission.
The Apple Hill Homeowners’ Association, neighbor Libby Harris and the town of Bennington all intervened in the PUC case to oppose the project. Harris and the Homeowners’ Association argued that the tree clearing for the solar array would increase wind and noise as well as deforest an area nearby residents had used for recreation. The town argued that the proposed development conflicted with the town’s plan.
Meanwhile, in 2016, the PUC denied Allco Renewable a certificate of public good for Chelsea Solar — a solar array next to the Apple Hill project — on the grounds that it would violate the town plan.
In 2017, Allco Renewable agreed to make some changes to the Apple Hill project and the town agreed to not oppose the project on those grounds. The PUC determined that the project would not violate a clear town plan, in part because the town had agreed to no longer oppose it.
But, Harris and the Homeowners’ Association appealed the PUC approval to the Supreme Court. They argued that the PUC’s previous determination that Chelsea Solar violated Bennington’s town plan should have led the commission to deny the Apple Hill project.
In its ruling, released Friday, the high court agreed with the PUC that it did not have to deny the Apple Hill project because it had denied Chelsea Solar. Allco Renewable had originally looked to appeal that denial and decided instead to resubmit a revised project application.
“In particular, Chelsea Solar did not have the kind of ‘full and fair opportunity to litigate the issue’ that would lead us to conclude that applying issue preclusion against Apple Hill would be fair,” the court said.
But the higher court concluded that the commission’s determination that the project would not have an adverse aesthetic impact or interfere with development in the area is “not supported by its findings.” The court felt that the PUC erred in deciding that the project complied with the town plan on the basis of the town no longer actively opposing the project.
“A decision not to oppose a project or assert that it violates the Town Plan does not mean that the project comports with the Plan, or even that the Town has concluded that the project comports with the Plan,” wrote the Supreme Court in its Friday ruling.
The court sent the case back down to the PUC, instructing the commission to see whether the project complies with the town plan.
Brooke Dingledine, attorney for Harris and the Homeowners’ Association, said that her clients were “very pleased” with the court’s decision because they felt the evidence the PUC relied on did not support their decision to approve the Apple Hill project.
“The Supreme Court has now explained, yes, there is a standard that you must apply and make findings about this specific project,” she said.
Dingledine said that her clients were concerned about the “crushing issue” of resources required to fight this case.
“The problem is before the PUC, they basically have a trump card,” she said. “You can flunk on criteria and then ultimately the PUC can say, but you know what, it’s in the public good.”
Michael and Thomas Melone, principles of Allco Renewable have been embroiled with the town and residents over multiple solar projects they are seeking to build in Bennington. Last year, the town and Allco Renewable reached a settlement in which the town agreed not to oppose the Apple Hill and adjacent Chelsea Solar, as well as two other proposed projects, provided those comply with Bennington’s new town plan.
Thomas Melone did not return a voicemail for comment left Friday afternoon.
Kyle Landis-Marinello, general counsel for the PUC, said that the commission could not comment on the case as it had been sent back for review.
