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DPS backs Newark’s amended town plan

NEWARK – The state of Vermont Department of Public Service has backed the town of Newark’s recently amended Town Plan in a step of the review for four meteorological or MET towers being sought by a developer as a potential precursor for a wind farm in Brighton, Ferdinand and Newark.

As part of the calendar of review steps for Seneca Mountain Wind’s sought after MET towers, the Public Service Board last week took testimony on the “Applicability of the Amended Newark Town Plan,” amended during the consideration of the developer’s tower application.

In a 9-page memorandum to the PSB last week, Aaron Kisicki, special counsel to the Vermont Department of Public Service (DPS), ruled that the Sept. 17 vote by the Town of Newark to amend its town plan “is controlling in this proceeding.”

“The amendments are consistent with the guarded view of commercial development, including wind development, already contained in the town’s Dec. 7 (2011) Plan. Additionally, Seneca’s application was not properly completed until Sept. 24…when the Board (PSB) noticed lifting of the stay of proceedings,” due to some abutters not being properly notified as required by law.

In his memorandum, Kisicki notes that while “legislation and executive policy clearly support increased development and use of renewable energy sources within Vermont,” that “of equal importance, however, is the need to sustain public trust in the processes that govern the development of in-state renewable energy projects, including large-scale industrial wind facilities.”

Kisicki notes that in the town plan adopted last December, that it stated “Newark residents have expressed concern over the impact of industrial development, fearing that it could destroy the character of the town.”

He cites the town residents approval of the amendments to the town plan, adding specific language and height restrictions aimed at keeping industrial wind out of Newark, and the strong vote, 169 in favor, 59 opposed.

“The Sept. 17 amendments made to the Town Plan serve to bring greater emphasis to sentiments already espoused in the pre-amendment version,” stressed Kisicki.

Of Seneca Mountain Wind’s arguments that the Town Plan was amended mid-game, Kisicki wrote that the PSB “was precluded from considering and rendering a decision on the Seneca application until after the amended Town Plan vote, because Seneca had not completed the legally required step of providing the required notice to all adjoining landowners.”

“Seneca has repeatedly made public representations that it would not proceed with a commercial wind project if the host towns were to reject its proposal by a town vote. Due to comments and concerns brought to the Department by residents and others in the course of this proceeding, the Department sought clarification from Seneca regarding the scope of its town vote position.” Kisicki stated, “…it appears that the developer’s offer of continued dialogue and later review has not been accepted by a substantial portion of the town, as demonstrated by the Town Plan amendment vote. The Town has chosen to make its position – regarding both exploratory MET towers and commercial wind energy projects – known now through the process of amending its Town Plan, as is permissible under state law.”

Kisicki stated, “The Board should properly look to the amended Town Plan to evaluate the plan’s applicability to Seneca’s MET tower application. Town plans are the primary means by which the town sentiment is gauged under state law applicable to this case…Precluding the Board from evaluating Newark town sentiment expressed in the current Town Plan as amended would undermine the core rationales for the statutory planning framework and its role in the Board’s energy generation siting process.”

In SMW’s legal memorandum on the applicability of the new Newark Town Plan, the developer’s attorney states that in mid-August the PSB Hearing Officer “issued a procedural order in which it determined that the leasehold interests held by SMW define the boundaries of the Project property.”

That meant SMW had not provided notice to all landowners adjoining leased property and the developer was ordered to do so, during which time the application was stayed. About a month later, the amended Newark Town Plan was voted in.

“SMW submitted a ‘proper’ application before amendments to the Newark Town Plan were issued, so the old Town Plan applies and the revisions are not relevant to the Board’s evaluation of SMW’s application,” wrote SMW’s attorneys.

The Town of Brighton also filed in the recent applicability of the Newark Town Plan question before the PSB, its planning commission stating that it was writing to express its support.

“Trying to plan for a town’s future involves thinking about things you want to happen. It is difficult to plan for things you don’t want to happen,” they wrote. “In the face of the SMW project, Newark felt SMW grossly misinterpreted their plan, and they felt it was necessary to clarify their plan and subsequently amended their plan to that effect.”

One other development in recent days on the new Newark Town Plan came Thursday night when the Newark Planning Commission met with the Select board and the Northeastern Vermont Development Association’s Town Plan Review Committee. The Committee voted unanimously to recommend that the plan be approved by the full board of NVDA directors, said Mark Whitworth, a member of the Newark Planning Commission.