September 21, 2012

Developer: Windham’s wind ban not absolute

By MIKE FAHER / Reformer Staff | Brattleboro Reformer | 21 September 2012

WINDHAM – State regulators are “not required to defer to” this town’s ban on commercial wind power as they consider whether to allow construction of three test towers, a developer argues.

On the heels of Windham officials’ contention that large-scale wind is “expressly forbidden” by the town plan and in zoning bylaws, Atlantic Wind LLC this week sent a rebuttal to the Vermont Public Service Board.

The letter takes issue with Windham’s ban, questions its role in the permitting process and also argues that the test towers would not burden or damage the town or the environment.

“There is no basis to conclude that the development of these three slender, unlit, temporary towers will have any impact on the orderly development of the region of Windham County,” the company’s attorneys wrote.

Atlantic Wind is Iberdrola Renewables, an international wind power developer that has asked the Public Service Board for permission to erect two meteorological testing towers in Windham and another in Grafton.

The towers – which could pave the way for Windham County’s first commercial turbines – would be installed on land owned by New Hampshire-based Meadowsend Timberlands Limited.

Grafton officials have not taken a position on the matter. But Windham’s Selectboard and Planning Commission last month wrote a letter urging the PSB to reject Atlantic Wind’s plan based on local regulations.

The wind company, however, notes that neither the town plan nor Windham’s zoning bylaws specifically ban test towers – also known as MET towers. And those structures are the only matter before the PSB at this point.

“The company has not proposed a wind project and does not know at this time if the site is a viable location for a wind project,” Atlantic Wind’s letter says.

And while the towers would be located within a Forest Resource District where commercial activity is strictly regulated, company attorneys also question whether test towers are actually “commercial activity.”

“The town plan in fact expressly excludes temporary MET towers from the definition of a ‘commercial wind-energy facility,'” the letter says. “This exclusion makes sense, as MET towers themselves do not fall within the traditional notions of a ‘commercial’ use – they are an investigatory tool that is a precursor to future possible development of a commercial wind-energy project, but the towers themselves do not provide an inherent commercial service.”

Town officials have rejected these arguments as “disingenuous,” saying test towers are groundwork for full-scale turbines, which are banned.

But the legal standing of that ban also is in question. Atlantic Wind says such town regulations are “advisory rather than controlling” and cannot be the sole basis for the state board’s ruling.

“The board can, and has previously, approved projects even where they are found to be inconsistent with some portions of local or regional plans,” the company’s letter said.

Specifically, Atlantic Wind cites a certificate of public good that was granted to the Sheffield Wind Project in Vermont’s Northeast Kingdom “despite finding that the commercial wind development was inconsistent with parts of the applicable regional plan.”

“The board should reach a similar conclusion here, particularly given the limited scope of the proposed project,” Atlantic’s letter says.

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