Vt Digger: FEB. 17, 2016, 9:20 PM BY MIKE POLHAMUS
The state’s three-person Public Service Board on Tuesday denied a permit for a solar project in Bennington, marking the first such denial in recent history.
The 2-megawatt solar array would have been built a short distance from the intersection of Route 7 and Route 279 in an area Bennington’s town plan slated for low-density residential development.
The town plan played a decisive role in the ruling. The board drew a contrast between Bennington’s town plan and a set of local rules that Rutland Town had tried to use to block a solar energy project last year.
The board determined the Bennington project failed the “Quechee test,” which requires that a proposal conform to a “clear, written community standard intended to preserve the aesthetics or scenic beauty of the area.” Bennington’s town plan contains four such standards that apply to that specific location, the board said, and New York-based Chelsea Solar’s project would have violated three.The PSB rejected a recommendation by hearing officer Michael Tousley in the project’s favor.
The move significantly diverges from past PSB orders, both in its treatment of the hearing officer’s recommendation and in the denial of a certificate of public good for the project, said Karen Horn, public policy and advocacy director for the Vermont League of Cities and Towns.
“I think it’s very encouraging, and definitely a shift, and a direction we think will be more respectful of municipal plans and municipal recommendations,” Horn said.
But the board’s order indicated not all local regulations will pass muster. The board said Rutland Town’s town plan, and new, solar-specific standards the town added to the plan, failed the Quechee test.
That didn’t sit well with Rutland Town Select Board member Don Cioffi. “They’re being a bunch of fascist liars,” he said.
“The Public Service Board is way off base in this,” Cioffi said. “They’re making this decision up on their own. This is a sham, just like the rest of it’s a sham.”
Cioffi is spearheading a statewide push to slow and in some cases halt renewable energy development on the basis that localities aren’t given a say in the way energy projects develop.
State officials wouldn’t say the Bennington decision is unprecedented, but they say it is at least uncommon.
“I can’t say this is unique, but it’s certainly rare” that the Public Service Board would deny a certificate of public good in this type of case, said Deputy Public Service Commissioner Jon Copans.
“Without an exhaustive review of dockets I can’t say 100 percent … but based on the recollection of staff, it’s rare that a CPG is denied,” he said.
Bennington may have had the one exceptional town plan in recent memory on whose contents board members could reject a solar project, but that seems unlikely, Horn said. What’s more likely is that the board has changed its approach, she said.
“Bennington does have a very complete town plan — it’s a good town plan — but there have been other good town plans submitted in the past,” Horn said.
Public Service Board members were unavailable to comment on whether the decision signals a new approach.
Bennington’s town plan characterizes the proposed solar site as a rural conservation district, where development is expected but intended to remain no more intensive than low-density residences, the board’s order states.
As a result of this and other of the plan’s components, the board found that the project “will unduly interfere with the orderly development of the region because the town plan articulates specific land conservation measures applicable to the project site that would be violated if the project were to be constructed.”
Attorneys involved in the case say the PSB decision is significant.
“The reason this case may turn out to be important is because the Public Service Board has not denied any large solar projects in the past because of a town plan. It’s the first time that’s happened,” said attorney Robert Woolmington, of the Manchester firm Witten, Woolmington, Campbell & Bernal.
He came up with the argument that the PSB should consider the town plan and apply the Quechee test, and the board cited that argument as the decisive one.
“Partly (the decision) reflects on the clarity of Bennington’s town plan,” Woolmington said. The board’s order demonstrates that it may show similar consideration for well-crafted town plans in the future, he said.
But Cioffi said Rutland Town, too, had invested enormous effort devising solar siting rules. “The town used a very lengthy deliberative process” to write the solar siting component of its plan, he said. “It wasn’t just a whim, and it wasn’t just, ‘Oh, we want to oppose this, so let’s put it in there.’”
The PSB said that solar regulations added to Rutland Town’s plan did not constitute a “clear, written community standard intended to preserve the aesthetics or scenic beauty of the area.”
The Public Service Board treated “the area” in that test as the specific location of the relevant proposed project.
The board said Rutland Town’s solar siting plan was merely an attempt to circumvent the intent of Section 248, the regulatory statute for renewable energy development.
Although Woolmington wrote the decisive argument, it wasn’t for this case. He is acting as Bennington’s attorney in a pending PSB case involving another proposal from Chelsea Solar.
Libby Harris, a neighbor of the site where the rejected project was planned, said she got Woolmington’s argument on the record for this case by attaching the attorney’s brief to her own comments to the board.
Harris represented herself before the board and said she couldn’t afford an attorney of her own.
Harris said she also had help from Annette Smith, director of Vermonters for a Clean Environment, with filings and navigating the hearing procedures.
Agitators against current renewable development policies simply want to take a more considered approach, Harris said.
“I think all of us are for renewables,” she said. “But let’s take a more examined look at this, and do it more aesthetically. Don’t run roughshod over Vermont cities and towns.”
Cioffi said he doesn’t trust the Public Service Board to repeat its apparent deference to Bennington’s town plan. He says the law governing the board’s decision-making needs to change.
“I don’t think, regardless of what they think of ‘global change’ or whatever, that they should destroy the ambiance of Vermont,” Cioffi said. He added, however, that he supports renewables as a matter of self-sufficiency.
Cioffi said he also hopes legislators will require that all new construction be able to bear the weight of solar arrays, for future rooftop installations.
As for the Vermont League of Cities and Towns, Horn said it will continue pushing for legislation to require greater PSB deference toward towns’ plans and recommendations, although she said this decision a step in the right direction.
“It’s one case, and there’s a long line of cases where that isn’t the case,” Horn said.
State lawmakers are holding hearings to consider legislation meant to give greater say to localities in the development of renewable energy.
Chelsea Solar representatives did not return calls for comment.