Town and state spar over solar projects with developer
BENNINGTON >> The developer behind two controversial solar projects, one which was denied a state permit, has filed numerous motions and requests with the Public Service Board.
The New York City based company demanded hearings for amended proposals, criticized the agency on procedural grounds, and alleged the board and another agency violated a written agreement.
But state agencies, the town and a resident have blasted the company for what's been called in Act 250 documents as "frivolous filings."
The Apple Hill and Chelsea Hill solar projects were both proposed by Otter Creek Solar LLC, a subsidiary of Allco Renewable Energy Limited. In February, Chelsea Hill's request for a "certificate of public good" was denied by the state's Public Service Board, which in its decision relied heavily on the town plan. The board found the project violated three of the four requirements the town plan has for the Rural Conservation District. No decision has been issued for Apple Hill.
Since March, Michael Melone, vice president and general counsel for Allco, has filed numerous motions with the board, among them: That the order denying a CPG for Chelsea Hill be vacated; that the board consider amended proposals for both projects; and that it strike responses from the Agency of Natural Resources and Public Service Department from the docket. Melone also argued the board's review of the town plan "represents unfair surprise and a violation of due process."
The developer "should not only be denied its motions, but also should be sanctioned for filing reams of paper requiring intervenors to expend resources in terms of time and money to respond to the endless filings," Libby Harris, an Apple Hill Road resident, wrote in a June 3 response to the board.
Both were filed as separate projects, but would be sited right next to each other and share a 27.3 acre parcel near Apple Hill and Willow Brook Roads, near the Apple Hill neighborhood.
Chelsea Hill Solar LLC first petitioned for a CPG in June 2014. An amended site plan the developer filed in March, which was not formally accepted by the board, reduced the footprint from 14.85 acres to 10.2 acres and the amount of cut forest from 14.85 to 12 acres.
Apple Hill Solar LLC first petitioned for a CPG in March 2015. An amended site plan, which also wasn't accepted, reduced the footprint from 12.5 acres to 8.3 acres; reduced the amount of cut forest from 12.5 acres to 10.6 acres; and increased the setback between the southern property from 20 feet to 228 feet.
The developer hasn't yet petitioned for solar arrays it intends to build on 76 acres of land between the Home Depot and Carbone Motor Group on Route 67A, and west of the Publyk House and Bennington Project Independence on Route 7A. A 45 day notice letter sent on April 7 detailed three projects totalling 4.99 mw and collectively dubbed Battle Creek Solar.
For the Chelsea Hill project, the developer in March submitted a request for judicial notice with some 750 pages of material; a motion to reopen discovery; and a motion to vacate the board's order which denied a permit. The same month for Apple Hill, the developer requested judicial notice and filed a motion to reopen discovery.
Jeanne Elias, special counsel for the Public Service Department, argued in an April 29 response that the board should deny the motions on the grounds it had already denied the original petition.
"In other words, as there is no petition, there is nothing to amend," Elias wrote.
On May 12, Melone filed motions to strike responses from the Agency of Natural Resources and Public Service Department. He argued that the responses represent a breach of contract, their "duty of good faith and fair dealing."
But Donald J. Einhorn, general counsel for ANR, stated in a May 25 response that the developer misinterpreted a Memorandum of Understanding it entered with the agency and that the board should dismiss the motion with prejudice.
"Filling basis motions...serves no productive purpose, requires the expenditure of additional agency resources, and should not be condoned," he wrote in the response.
"[The developer] has the arrogance to think that if it objects to the judgment of [the board] in denying the project, and keeps coming back offering baseless, willy nilly arguments... then it will be victorious," Harris wrote in a June 3 response. "Enough time and massive amounts of energy have been spent in considering this project and it was denied on the strength of the many reasons given by [the board]."
Contact Edward Damon at 413-770-6979
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