Solar issue could set precedent

FERRISBURGH — Residents of the Mile Point lakefront area in Ferrisburgh continue to fight on multiple fronts against what a recently installed 150-kilowatt solar array on a corner of Basin Harbor Club’s 700-acre property — in a case that could have statewide implications.
Some neighbors of the 1.5-acre, net-metering array at 4800 Basin Harbor Road have appealed to the Vermont Supreme Court to reverse the approval for the project that was granted Nov. 25 by the Public Service Board (PSB). Residents also appealed the board’s Jan. 14 denial of project neighbor Mary McGuire’s motion to reconsider project approval, which took the form of a Certificate of Public Good.
The solar array is sited about 100 feet from the gravel Mile Point Road, which provides the only access to dozens of year-round and seasonal homes on Mile Point, just north of the Basin Harbor Club resort. It is 900 feet from the more heavily traveled Schoolhouse Road, which runs north-south to the east of Mile Point.
The Vermont Supreme Court appeal, filed in January by McGuire and family members, focuses in part on the PSB’s working definition of an “average person” and how he or she is affected by solar installations. A ruling in favor of the McGuires could undermine the PSB’s logic in approving arrays, and the McGuires say they have precedent on their side.
At issue is the “Quechee test,” used by Act 250 and other Vermont zoning and development review boards to determine if a proposal would have an adverse impact on a neighborhood. Essentially, boards gauge whether a development would offend “an average person.”
The original Nov. 25 PSB approval of the Basin Harbor array stated, “The Project will introduce a significant built element into what is currently an open field. Therefore, we find that the Project will be out of context with its surroundings. Accordingly, we determine that the Project will have an adverse impact on aesthetics.”
But the board ruled that the array would not offend the average person, with language that included the following:
“The Mile Point Neighbors cite the Basin Harbor Club’s decision to locate the Project out of view from its guest facilities as proof that the Project will be shocking and offensive. We do not dispute the Mile Point Neighbors’ objection to the visual impacts of the Project from the vantage point of adjacent landowners. However, in reviewing the aesthetic impacts of a project under Section 248, the Board must determine whether a project’s visual impacts will be shocking or offensive to the average person. As interested landowners, the Mile Point Neighbors are most likely to be impacted by the view of the Project, and therefore have an individualized perspective which, by definition, is different from the viewpoint of the average person.”
The McGuires say they have examined other PSB decisions and have learned this logic is central to issuances of other Certificates of Public Good. And they do not agree.
Elizabeth McGuire, Mary McGuire’s daughter, emailed the Independent:
“The PSB appears to take the position that the ‘average person’ is one who views the project from afar, may drive by the project on occasion, likely has no ties to the project, and is not impacted by the project in any way. Naturally, it is rare that this ‘average person’ would find a solar installation shocking or offensive.”
McGuire believes a Supreme Court case involving East Middlebury wind turbine installer Tom Halnon sets a different precedent.
“Interestingly, the VT Supreme Court took a different position on this issue,” she wrote. “They did consider the impact a project had on a neighbor and held that a project would offend the sensibilities of the ‘average person’ if the project would be in the direct view from a neighboring residence, and would significantly diminish the neighbors’ enjoyment of the scenic view from their home. (In Re: Petition of Tom Halnon, CPG NM-25, at 17, 27 (3/15/01).”
In the most recent development, another Mile Point resident, Suzanne Fay, convinced the PSB to follow up on the issue of historic homes in the area.
On Feb. 5 the PSB sent a memorandum to Basin Harbor Club noting that the club’s Sept. 26 application “represented the Project would not be sited on or near any historic sites or districts.”
That memo also cited a Dec. 30 letter to the PSB from Fay “alleging the Project is adjacent to several properties that are on the Vermont State Historic Register. The Board would like to receive a response from Basin Harbor to these allegations.”
That response should include, the memo said, a list of those properties and a description of the project’s potential impact on them, and a description “with particularity” of the club’s process “regarding historic sites” in the area.
The memo also requests responses from the Department of Public Service and the Vermont Division of Historic Preservation, due by Feb. 27.
Penalties for “false or misleading statements” can include “revocation of any approval granted,” according to the project application.
Club co-owner Bob Beach last week said solar array installation firm AllEarth Renewables was preparing Basin Harbor’s response for the PSB, but noted there is no “historic district” along the lake.
Beach said there are properties designated as historic lakeside homes that were listed in the state historic register 20 or 30 years ago, some near the array and on Mile Point, and some that are part of the Basin Harbor Club.
“All the lakeside camps are historic because of when they were built and their viewpoint of Lake Champlain. And this is not taking away from that perspective of Lake Champlain,” he said.
Fay remains upset about the timing of the PSB’s response to her letter on Dec. 30, when she said “only wooden stakes were in the ground.” When the PSB acted on Feb. 25, she wrote, it was essentially too late.
“By the time the PSB sent a memo to BHC opening the inquiry,” she wrote, “the installation was complete.”
The McGuires are also challenging the PSB’s Jan. 14 refusal to consider Mary McGuire’s December Motion for Reconsideration of the PSB’s initial approval of the project, both through another filing with the PSB and through the Supreme Court.
The PSB refused to consider Mary McGuire’s motion because it ruled she was not an official party to the approval process, even though her home is 200 feet from the array and she commented throughout.
“The record for CPG No. NM-5006 does not reflect that Ms. McGuire was accorded party status in this proceeding. There is no record that Ms. McGuire filed a motion to intervene or a request for party status … Therefore, Ms. McGuire lacks the requisite legal standing to file a motion for reconsideration,” the PSB wrote.
Elizabeth McGuire wrote that her mother “had complied with all of the PSB rules and met all of the required timelines” during the approval process.
The Jan. 25 filing to the PSB on Mary McGuire’s behalf, which Elizabeth McGuire said echoes the issues to be raised before the Supreme court, states: “the facts suggest the board treated Ms. McGuire as a proper party, and the Board’s actions gave Ms. McGuire a reasonable belief she was in fact a party,” and the PSB “procedures and timelines are not set up to allow for intervention by an adjoining landowner.”
Neighborhood residents have other specific complaints — that the club chose to site what they call an unsightly array in a rural area next to several homes and next to Mile Point’s access road.
Those on both sides say relations between Mile Point and the club have been good over the years.
Mile Point residents Stewart and Rena Diana said in an email their issues are not the club or solar energy, but the process and the location and appearance of the project:
“Our argument is not against renewable energy, which we wholeheartedly support. Nor is this an attack on Basin Harbor Club, which is a wonderful place that we have enjoyed for decades. Our argument is FOR a transparent, measured, mindful process of planning and approving alternative sources of energy, considering all the facts and the ramifications, both short and long term.”
Beach also expressed regret about any hard feelings. He said the club had concrete reasons for picking that site, including availability of three-phase power and the larger club goal of creating an “Environmental Innovation Center” by combining the array with the club’s existing composting center, increasing use of a nearby greenhouse, and hiring a gardener/educator to provide vegetables for the club kitchens and offer tours to guests.
“I’m sorry that our neighbors have felt so conflicted about this. That’s very troubling for us,” Beach said. “But we didn’t choose that site because it was on Mile Point Road and we had no caring interest in their eyes. We chose it because it had additional value to us that we will be using that land in that area in the future for continuing initiatives.”
Residents do not like the look of the now installed array. The Dianas called it a “football field-size power plant” that is “totally inappropriate within a small, rural, historic community.”
Fay said the array is unwelcome to those who must see it up close every time they drive, walk, jog or bike past it.
“It dramatically changes the entrance to our properties, which has been, for the 125 years we’ve been neighbors, rural and agricultural,” Fay wrote. “Imagine a farm field, full of wild flowers now transformed into an industrial power plant — a sea of steel 20 feet high.”
Neighbors also remain upset and skeptical of the club’s plans.
“When we asked if there might be a different location for this project we were told that this is the most desirable location because it is not visible to the tourists who come to BHC,” wrote Mile Point property owner and Salisbury resident Marcy Wisnowski. “While clearly the motivation is to keep BHC pristine and attractive for its guests the same cannot be said for the impact this project may have on its neighbors.”
But Beach, who also notes the project is legal per town zoning and meets all setback requirements, said the club hopes guests will often visit the site.
“We’re actually drawing more focus to that area than we have in the past. We had done composting seminars in the past, but now with the garden center, the person we’ve hired has a background not only in gardening but also in youth education, and we’re going to take advantage of those assets. So our guest experience will be visiting that site,” he said.
Residents also point to the larger questions of siting and permitting solar arrays.
New Haven and Mile Point resident Candy Davidson asked for reform in an email.
“Growing up in a state that valued rural aesthetics by passing a billboard law, it is shocking to see our fields being filled with steel and glass. The proliferation of the arrays is pitting neighbor against neighbor — not the Vermont way,” she said. “Is it reasonable for one neighbor to ask another neighbor to bear the negative effects of solar arrays when the first neighbor profits? Should the decision about the siting of these arrays be made by just three people on the Public Service Board? How can three people handle all projects being proposed throughout the state?”
And the Dianas described what it has been like to participate in the PSB process.
“The process has run roughshod over the legitimate concerns of the neighbors,” they wrote. “The Public Service Board process has been confusing, opaque and terribly rushed.”
Andy Kirkaldy may be reached at [email protected].

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