Energy plan moving ahead despite lawsuit 

BENNINGTON – The town energy plan that prompted a lawsuit by a solar facility developer is moving toward possible certification by the Bennington County Regional Commission.

A suit, filed by Thomas and Michael Melone, of Allco Renewables, Ltd., challenges numerous provisions of the proposed Bennington energy plan and the manner in which the plan was prepared and later approved by both the Planning Commission and Select Board.

The suit in Chittenden Superior Court Civil Division also asks the court to block key aspects of Act 174, the state’s energy planning law, relative to the review and adoption of municipal plans at the regional level.

The 2016 law aimed to allow regions and municipalities with approved energy plans more deference in the siting of energy facilities seeking permits from the Vermont Public Utility Commission.

The BCRC was the first regional commission in the state to have a regional energy plan approved under Act 174 by the state Department of Public Service in 2017. Under those provisions, the BCRC can now review and certify municipal energy plans that further localize where communities would like to encourage or discourage solar, wind or other energy facilities.

“We have an eye on the lawsuit, but we are proceeding,” said James Sullivan, executive director of the BCRC.

He said the commission’s Plan Review and Energy committees will meet together next week to decide on a recommendation to the full commission on Bennington’s updated Town Plan and its new 28-page Energy Plan section, which is believed to be the first in Vermont to reach this stage under Act 174.

The full commission will hold a hearing on the Bennington plans on March 15, when a vote by the commissioners is expected, Sullivan said.

“Until we have a ruling or a court order not to proceed, we will go ahead and do what we have been asked to do,” he said. “We have completed a staff review [of the Bennington plans] and the committee meetings are next.”

He added: “I think the BCRC’s role in this entire process has been to provide technical assistance to the town, like we always do.”

The town has asked the commission to review and certify its energy section under Title 24, Chapter 117, Section 4352 of Vermont law (https://legislature.vermont.gov/statutes/section/24/117/04352) and related sections, Sullivan said.

Bennington Town Manager Stuart Hurd and Planning Director Daniel Monks said they could not comment in detail, except to say that the town has asked the BCRC to review the town plan update and energy plan as approved by the Select Board.

“At this point, the town has counsel and is reviewing this most confusing lawsuit,” Hurd said Thursday. “Our strategy has not yet been determined but should be soon. That’s about all I can say.”

Named in the suit filed in January are the town of Bennington, the Select Board, and the Planning Commission; Monks as planning director; state Rep. Mary Morrissey, R-Bennington; the BCRC; and other town officials and residents who have opposed two of the company’s proposed solar projects.

“These developers, who I call corporate sharks, will stop at nothing to get what they want,” said Lora Block, one of those who spoke against solar projects in the Apple Hill section of town but who was not named in the suit.

She added: “Our neighborhood has been disputing the siting of their two solar farms for years, and when they couldn’t get the approvals they wanted, they escalated into an legal attack on Act 174, which will have enormous negative statewide effects. It’s outrageous that they’re suing not only the town of Bennington and the BCRC, but also the citizen volunteers who served on the solar siting committee who were simply doing their civic duty and following Act 174 as volunteers to help identify over 500 acres of preferred solar sites.”

The 60-page complaint includes numerous allegations about the energy plan’s adoption process, as well as the role of a town Siting Committee, which included some residents and town officials and was involved in development of the plan.

The plan includes maps showing where commercial-scale solar projects would be preferred and where they are restricted in whole or partially.

“Defendants have entered in a civil conspiracy to wrongly injure plaintiffs, and to create unconstitutional and unlawful restrictions against development of solar energy on plaintiffs’ properties,” the complaint states.

Part of the suit challenges the legality of the state in delegating such approval authority to a regional entity.

And the suit contends that the BCRC should have to conduct a formal adoption process with hearings before making any decision on a municipal energy plan.

Listed as plaintiffs are PLH, LLC, which owns property in Bennington, and limited liability corporations involved with the developer’s Apple Hill, Chelsea and Otter Creek solar project proposals. All the entities are headquartered in Shelburne.