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Business says town broke law; Deliberations took place via email

SWANTON – Developers behind the controversial Swanton Wind Project filed a complaint with the town planning commission on Monday, expressing concern that the commission’s private discussions on a renewable energy component of the town plan violated Vermont open meeting laws.

The complaint, written by developers Travis and Ashley Belisle, warns “the commission is setting a precedent that should be of great concern to all who own property in town.”

“The most serious concern we have with the project is its lack of transparency and inclusiveness,” they wrote. “This has resulted in a majority of commission members and the town administrator violating Vermont’s open meeting laws by deliberating on plan revision language over email without notice to the public as is required by Vermont law.”

Their complaint builds on the results of an open records request filed by their attorney, Anthony Iarrapino, on July 6.

The request, filed with town administrator David Jescavage, sought any records of communication between planning commission member Sara Luneau-Swan and the public, specifically Vermonters for a Clean Environment executive director Annette Smith, Republican Representative Marianna Gamache and noted Swanton Wind opponents Christine and Dustin Lang, regarding revisions to the town plan.

Based on the results of the open records request, the complaint says, “the language under consideration has been drafted behind closed doors, in-between open sessions, with drafting often being done by and in coordination with persons who are outspoken opponents of renewable energy projects like ours… some of these individuals are not even Swanton residents or taxpayers.”

Gamache presented “refinements” to the language under consideration at the planning commission’s June 15 meeting, saying it was a necessary response to the Public Service Board (PSB)’s specificity requirements in town energy plans.

The Belisles have taken issue with a number of scientific claims without cited sources within the refined language – for example, that the Swanton Wind Project would disturb a local “deer yard,” and that the wind turbines would kill a majority of migratory birds.

Their complaint points out that “far from being an untouched wilderness,” Rocky Ridge, the site of the proposed project, “is a working landscape formerly owned and heavily used by a timber company,” and alleges that the planning commission’s process is relying on “inaccurate and misleading information provided – once again behind the scenes – by those who have no apparent expertise.”

Gamache stressed to the planning commission the importance of input from those “considered experts,” explaining that she had drafted the proposed revisions with Smith and Justin London, whose connection to renewable energy, as well as Swanton, remains unclear.

The complaint notes the uncertainty surrounding London’s identity, as well as Smith’s lack of “expertise in biology, large-mammal or avian ecology, hydrology, acoustics, or civil engineering – just some of the fields implicated by the draft language Ms. Gamache proposes.”

The complaint also notes that Smith is not a resident of Swanton, but of Danby. Nor is Penny Dubie, a Fairfield resident who communicated with Luneau-Swan in an April email chain.

In one such email, Luneau-Swan wrote that she was concerned about the planning commission’s July 20 meeting because “there is concern that Travis and his team will be there and we don’t want to have to make changes or concede to any of their requests.”

“Any process that involves commissioners who express ‘concern’ that citizens like us – who have deep roots in the community and who are major landowners and taxpayers in the town – might exercise our rights to attend a public meeting of the commission and request changes to language that specifically targets our land is not a fair or impartial process,” the complaint says. “It is not, in our experience, what Swanton is or should be about.”

The complaint cites several additional emails from Luneau-Swan in which she allegedly violates open meeting law.

A late March email in which Luneau-Swan provides feedback on proposed plan revisions to other commission members and town staff “was not shared with the public at a duly warned public meeting, nor did the town provide a public warning of the fact that Commissioner Swan was initiating a deliberative session over email involving a majority of the commission,” the complaint notes.

Then, in an email from April, following a warned meeting the night before at which the commission voted to approve language for the selectboard’s final review, Luneau-Swan made “unsupported and inaccurate claims regarding the feasibility of our using our land for other types of renewable energy projects,” the complaint says, “and concludes by encouraging the commission to ‘reconsider’ its decision” from the prior night’s open meeting.

Finally, the complaint says, “dialogue involving at least three of the five commissioners did continue over email and through the U.S. mail” following their June 15 meeting. “At no time did the town duly warn this behind-thescenes deliberation.”

The state’s Open Meeting Law prohibits a majority of any public body discussing or making decisions on municipal business without a duly warned open meeting. According to the law, “On a five-person commission, no three of them may participate” in closed conversations regarding municipal business.

“Given Ms. Swan’s bias against us, and other comments cited above demonstrating her desire to frustrate our ability to participate fully in this process, this violation of Vermont’s Open Meeting Law further emphasizes how tainted the commission’s process has become,” the complaint says.

Vermont statutes require public bodies to respond to allegations of Open Meeting Law violation publicly and within seven days. If that body acknowledges the violation, it is provided 14 calendar days to rectify the violation, by ratifying or declaring void any action taken at or resulting from communications in violation and then adopting specific measures to prevent future violations.

If the public body denies a violation, or if the 14-day “cure” period ends without a resolution to the satisfaction of the aggrieved, legal action may be brought against the public body that shall “take precedence on the docket over all cases and shall be assigned for hearing and trial or for argument at the earliest practical date and expedited in every way.”

When reached shortly after Iarrapino’s public records request, Luneau-Swan insisted that the energy plan in the works is “just for the interim,” and that even the finalized town energy plan “will probably have to be changed” to accord with the PSB’s demands.

In an April 28 email obtained in the public records request, Luneau-Swan wrote, “I think we owe it to our citizens to make sure their voices were heard and that we will do everything we are able to to stop renewable energy projects where they shouldn’t be located.”

Swanton residents voted 731 to 160 in opposition of the Swanton Wind Project at a non-binding, “symbolic” vote in November 2015.

But the Belisles warn in their comment letter that the issue goes beyond renewable energy.

“Who is to say that in the future this unfair treatment will be limited to renewable energy?” the complaint says. “In the same declaration we filed in the land records and had signed by our Rocky Ridge neighbors when we created the house lots they now occupy, we not only reserved our right to construct wind turbines, but also additional homes and/or a rock quarry on our remaining land. We are deeply concerned that the new draft plan language will be used by complaining neighbors to advance their not-in-my-backyard agenda beyond renewable energy and into more traditional land uses. And if it can happen to us, there is no reason it cannot happen to other landowners in town.”

The planning commission is holding a public hearing regarding the proposed amendments tonight.

The meeting begins at 7 p.m. in the town offices on Academy Street.