July 21, 2016
Vermont

Commission seeks pro-wind input; Planning chair Hubbard denies violation of Open Meeting Law

By TOM BENTON, Messenger Staff Writer | St. Albans Messenger | July 21, 2016 |

SWANTON – The chair of the Planning Commission publicly responded to allegations that the commission violated the state’s Open Meeting Law at their monthly meeting last night, denying any legal wrongdoing and promising the commission’s deliberations would be more transparent in the future.

Chair Jim Hubbard’s statements followed a complaint letter filed by attorney Anthony Iarrapino on behalf of his clients Travis and Ashley Belisle, the developers behind the Swanton Wind Project, a proposed seven-turbine wind farm that has been the subject of incessant argument since its proposal in summer 2015.

“No decision-making or votes have taken place,” Hubbard told Iarrapino and the Belisles, who sat in the front row of the cramped town office conference room. “We feel very bad that you feel the way you do, and we want to work with you on this.”

Iarrapino alleges the commission violated Open Meeting Law by privately deliberating over proposed changes to the municipal energy plan. A pub-

Planning Commission Chair Jim Hubbard and fellow Commissioner Ross Lavoie listen to Commissioner Ed Daniel’s admission that he “goofed,” and possibly violated Open Meeting Law, during last night’s meeting.

lic records request exposed several emails from Commissioner Sara Luneau-Swan, exploring options for the plan’s language and communicating with individuals who have fought renewable wind development in other parts of the state.

In one email, Luneau-Swan said the Planning Commission was “listening to the Swanton citizens who voted no to the idea of large-scale wind turbines, and that our goal should be to have an energy plan that supports this as well as we can.” Swanton residents voted 731 to 160 against the Swanton Wind Project in a non-binding, symbolic vote last November, though only 25 percent of registered Swanton voters turned out for the vote.

In another email, Luneau-Swan urged Planning Commission members to “reconsider” their public decision to submit a draft of the municipal plan to the selectboard, arguing for unmistakably preventative language – words like “shall not,” “must” and “prohibited,” rather than “discouraged.”

Finally, in an April email to Penny Dubie, a resident of Fairfield, Luneau-Swan said she was concerned that the Belisles would be at the next Planning Commission meeting, “and we don’t want to have to make changes or concede to any of their requests.”

Luneau-Swan remained silent throughout the Planning Commission’s meeting last night, but Commissioner Ed Daniel, with whom Luneau-Swan deliberated over the proposed new language via email, apologized.

“We goofed,” he said. “I made one mistake – I should have known better.”

Commissioners Luneau-Swan, Daniel and Andy Larocque communicated regarding the proposed language, violating Open Meeting Law, which states that “on a five-person commission, no three of them may participate” in discussions about municipal business unless at a duly warned public meeting.

Daniel said that stipulation was “just something that skipped my mind.” He said he wished Swanton Wind representatives had reminded the Planning Commission of the stipulations of the Open Meeting Law at their last meeting.

“I wish David had noticed,” Daniel said, referring to Town Administrator David Jescavage, whom Daniel said had not given him a copy of the Belisles’ complaint.

Jescavage, in attendance at last night’s meeting, said he had shared the letter. “I did give you a copy,” he said. “I printed it out.”

The language proposals in question were brought forth at the commission’s June meeting, when Republican Representative Marianna Gamache presented language “refinements” for the municipal energy plan to meet the specificity requirements of the Public Service Board.

Gamache said she had crafted the language with Annette Smith, the executive director of Vermonters for a Clean Environment and a noted opponent of the Swanton Wind Project, and Justin London, whose connection to the issues at hand remains unknown.

Gamache stressed to the Planning Commission the importance of consulting those “who could be considered experts.” But the Belisles’ complaint argues the proposed language’s authors have no relevant expertise whatsoever – “no special expertise in biology, large-mammal or avian ecology, hydrology, acoustics or civil engineering,” referring to claims in the proposed language refinements that the Swanton Wind Project turbines would kill a significant number of migratory birds, irreparably disrupt local ecosystems and disrupt a local deer yard.

The complaint also questioned the authors’ right to have input in Swanton’s municipal plans – Smith is a resident of Danby, and London is not a Swanton resident or taxpayer.

“The Open Meeting Law is supposed to guard against such unfair processes by ensuring in part that ‘public hearings’ on important decisions aren’t meaningless exercises in trying to change a majority of decision- makers’ minds that are already made up after a lengthy process of private discussions,” the complaint says.

That was the prime concern expressed by Iarrapino at last night’s meeting. “We try to take at face value that you haven’t made decisions in the formal sense, but the concern is whether you’ve made up your mind,” he said. “Because you’ve had information – maybe it’s accurate, maybe it’s not – that you didn’t share with the public fully. You’ve had time to think about it. It’s sunk in. It’s really difficult to change somebody’s mind after it’s already made up. That’s the concern.”

Hubbard agreed that the Planning Commission had received a wealth of information from opponents to the project, gesturing with his hands to indicate a stack the size of a small child.

He told Christine Lang, a Swanton resident and opponent of the wind project, that the commission is not seeking further information from “your group.”

“We’ve had enough presented from your group,” Hubbard said. “It’s been constant, constant, constant. We’ve certainly had enough from you, but we don’t have enough from them. You’ve had the opportunity.”

Hubbard gave the Belisles, and anyone in favor of renewable wind development, until the next Planning Commission meeting to compile information to present to the commission.

Hubbard said the Planning Commission had not received information regarding the wind project, despite ample time to submit such material. He pointed out that the Planning Commission was not invited to the Swanton Wind Project’s initial information meeting, save for Daniel.

Throughout the meeting, Hubbard maintained that the Planning Commission had not committed any “substantial violation.”

When Hubbard reiterated that statement after Daniel’s apology, Iarrapino said, “I’m sorry, but one of your commissioners who was involved just admitted that he was not following the law.”

“Well,” Hubbard replied, “I don’t know if he clearly knows what he’s talking about.”

Iarrapino thanked Jescavage and Luneau-Swan for their “complete and forthcoming” responses to his public records request. “That’s a hallmark of people who are trying to do the right thing,” Iarrapino said.

At the end of the meeting, Jescavage asked Iarrapino if this meeting satisfied his clients. Open Meeting Law dictates that the alleged offending body has seven days to publicly respond to the allegations, and either deny or rectify the violations. If the complainant is not satisfied with the reaction, once the cure period expires, the complainant can press charges, which will take top priority and be expedited through the legal process.

Iarrapino said he didn’t feel it was fair to put his clients “on the spot” in asking them that during the meeting. He promised they would make a prompt decision, about which the town would be immediately notified.

As if to usher in a new period of transparency, Jescavage offered to forward all the relevant emails from the public records request to everyone who attended the meeting.

The next meeting will be a work session, open to public comment, during which proponents of renewable wind development will submit relevant information.