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Pro se arguments in Lowell wind case led to new precedent  

Credit:  by Carl Etnier, vtdigger.org 6 July 2011 ~~

The Public Service Board hearing room in Montpelier is a curious mix of the formality of a court room and the informality of a discussion at a farmers’ market picnic table. Like town meeting moderators, the board members have rules of procedure to follow—and they sometimes bend them to accommodate participants who are not accustomed to them.

During the Public Service Board’s Kingdom Community Wind proceedings in February, the parties who were most informal were those who represented themselves, the two land owners near the project, Don and Shirley Nelson (link http://vtdigger.org/2010/10/02/vermont-land-trust-deal-in-lowell-sours-over-wind-project/) and Bonnie and Milo Day.

The Nelsons and Days did not dress like lawyers, and they lacked lawyerly vocabulary, but they were experts on where they lived. They spent a number of weeks preparing for and attending the hearings.

The Nelsons and the Days were among those who were disappointed that GMP did not call them to the witness stand for cross examination.

As Bonnie Day put it in February: “They read it (the testimony), but that’s not the same as someone getting up on the stand and breaking into tears because everything they value will be destroyed.”

Several of their homespun arguments, however, led to a precedent-setting decision by the board, which approved the project in May. For the first time, developers are required to compensate adjacent landowners for certain harms caused by noise from the turbines.

The proposed Kingdom Community Wind project consists of up to 21 turbines on Lowell Mountain and is expected to generate as much electricity annually as is used by more than 20,000 homes. Transmission facilities and service roads are also to be built in Lowell. Green Mountain Power has partnered with Vermont Electric Cooperative on the project.

The Public Service Board accepted testimony and other evidence from fall 2010 until this spring, and it gave the project a green light (subject to 42 conditions) in May. Green Mountain Power is appealing four of those conditions.

What sort of picture did the PSB get of these pro se parties (lawyerese for “people representing themselves”)? In various ways, the Nelsons and Days were able to use the hearings to present the human face of near-neighbor impacts of the proposed turbines. In its ruling, however, the PSB mostly discounted the concerns of individual land owners.

But not entirely. Two of the board members were so concerned about one issue that the Nelsons and Days (among other parties) raised that they overruled the chair of the board to order Green Mountain Power to create a precedent-setting compensation procedure.

The Public Service Board has repeatedly made clear that its statutory mandate is to approve electrical generation projects that are in the interest of the state, even if some harm occurs. The permitted harm can be economic harm to individuals, changes to the landscape that some find offensive, or even some harm to wildlife.

In the Kingdom Community Wind ruling, however, a majority of the board broke new ground by requiring a compensation process for one type of harm to land owners: restrictions on development caused by noise from the turbines.

In its compensation ruling, the Public Service Board enlarged its interpretation of its statutory authority, giving itself more leeway to help offset harms to individuals that arise in the course of projects that otherwise benefit the state.

A dogged defense

Don Nelson spoke rarely in the hearing room, and both what he said and what he submitted in writing emphasized the project’s impact on his property.

Still, Nelson’s line of questioning led a Green Mountain Power witness to admit that some land owners will experience the turbines as aesthetically offensive. Nelson questioned David Raphael, an aesthetics expert for Green Mountain Power, (link http://vtdigger.org/2011/02/10/aesthetics-metrics-tested-in-kingdom-wind-project/) about his visit to the Nelson home, where the only picture windows face west, toward the proposed location for the Kindgdom Community Wind turbines.

Nelson: How high do you figure towers will be in relation to height of mountains?

Raphael: I’m not sure what you mean by that.

Nelson: Do you have the average elevation of the base of the ridgeline? And then take the average elevation of the top?

Raphael: Well, I guess looking at the visual simulation from the area south of your home…it appears as though to the very tip of the blade it would be perhaps somewhere a little under 50 percent of the elevation.

Nelson: That’s gonna stick up pretty good then, isn’t it?

Board member John Burke followed up, and Raphael conceded, “You know, I cannot speak for the Nelsons. But putting myself in their shoes, I can understand how they would come to believe that this would be offensive to them.”

Bonnie was the spokesperson for the Day famiily. She was not shy in the hearing room, though she did on occasion yield her allotted cross-examination time to Jared Margolis, a lawyer representing the town of Albany and Craftsbury. When she conducted her own cross examinations, she appeared unaccustomed to legal protocols and methods. She asked questions without apparently knowing what the witness’s answer would be—something lawyers are taught to avoid. She accepted coaching from friendly lawyers in the room, and interspersed her questions with comments like, “I’m not a lawyer, so give me a break here.”

The hearings were governed by Section 248b of Title 30 of the Vermont statutes, the legal framework for the issuance of a certificate of public good, which is essentially, an operating license for a generating facility. The statute spells out the criteria that a project must meet to receive the certificate of public good. In its ruling on Kingdom Community Wind, the Public Service Board referred often to testimony and other evidence that addressed each criterion; other submissions were largely ignored.

In her first filing with the PSB, written testimony filed in October 2010, Day wrote passionately, about the “harassment and intimidation” she suffered while “fighting this battle for nine years.”

“The last straw, for me, was the burning of the Nelsons’ barn… (State Police have not determined whether the fire was an accident or arson.) The thought that we were not safe in our home and community was more than I could handle. I found myself bursting into tears every time I contemplated writing this testimony. Then crying at odd moments for no reason at all. I could not string two thoughts together. This was very scary for me, having never experienced anything even remotely similar. My doctor diagnosed stress-related depression.

“I believe in property rights. I believe in public good. But no one should have the right to impose such a negative impact on so many in the name of public good—especially where the claimed public good has not been shown to be readily apparent.”

The board ignored these statements because they didn’t address the criterion outlined in the law.

By March, when Day filed her “Proposed Findings and Brief,” she structured the document along the lines of Section 248b criteria. Here are the criteria she addressed, and how the PSB ruled on them:

Impact on the value of nearby properties:
Day acknowledged that the 21-turbine project was not likely to measurably decrease property values townwide or countywide, but said she “cannot draw the same conclusion about the properties closest to the wind project,” which would include her own. A Green Mountain Power witness made a similar statement.

Day proposed two seemingly mutually exclusive mechanisms to redress drops in property value: a land owner compensation process for those whose properties lose value, or a requirement that Green Mountain Power buy properties that lose value.

The PSB’s ruling considered the value of nearby properties in the context of overall economic benefit to the state. In this case, the board reasoned that even if all properties within three miles of the project lost 10 percent of their value, taxes and other payments from Green Mountain Power to local communities would still provide millions of dollars of net economic benefit. It did not mention compensating land owners whose property lost value.

Aesthetics: Day warned that there would be undue adverse effects from the visual dominance of the turbines on the landscape for three miles around the project, both during the day and from the flashing of the aircraft warning lights at night.

The board noted that the project does not violate a clear community standard, and that “windmills” are a conditional use for the area according to Lowell’s bylaws. It found that the turbines during the day were not obtrusive for very far from the project, and that there was no feasible way to move the turbines to make them less obtrusive.

However, they also found that the red aircraft warning lights “will significantly diminish the scenic quality of the area at night.” It ordered GMP to seek Federal Aviation Administration permission to install an OCAS system, one that would only turn on the lights when an airplane neared the mountain.

Wildlife: Day claimed undue adverse impacts on wildlife from the project, including from habitat fragmentation, but she went into little detail. The board accepted arguments about habitat fragmentation from other parties and compelled Green Mountain Power to obtain easements on wildlife corridors before the project begins. The company is appealing this condition, saying that it causes undue construction delays.

Noise: The board has previously used a noise standard of 45 decibels at the exterior of a house and 30 decibels at the interior. Day, along with other parties, argued that this was insufficient—and a star Green Mountain Power witness on noise admitted in a public forum prior to the hearings that he would want lower noise levels than that for his own house.

Day argued a 30 decibel standard inside the bedroom and 35 to 40 decibels at the exterior of the house, averaging measurements in a way that would, in effect, make the 30 decibels perceived as consistently less noisy than the Public Service Board standard. She also argued for mandatory setbacks for the turbines from the property lines, in addition to the measurement-based standards.

The Public Service Board applied its previous noise standards to the project, which it argued are at least as protective as WHO Europe guidelines for traffic noise.

However, the board appeared to be uncomfortable with the consequences of applying the guidelines at the exterior of existing residences. With large parcels of land, and building sites closer to the turbines than existing residences, land owners find it difficult to develop their land. The majority of the three-member board ordered Green Mountain Power to set up a compensation process for land owners who were affected by noise in this way.

Jim Volz, chair of the Public Service Board, dissented, though he agreed with the sentiment behind it. He argued that the board had no statutory authority to order Green Mountain Power to set up the compensation process, but he exhorted them to go ahead with the ruling anyway.

Source:  by Carl Etnier, vtdigger.org 6 July 2011

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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