NEW HAVEN — Officials in New Haven, long frustrated by the proliferation of solar arrays in the rural Addison County town and the town’s lack of control over regulating them, is taking a new approach in court.
Until now, municipalities have not held any official weight in hearings on proposed utility developments; the Public Service Board has sole discretion on such matters.
In an April 15 court filing in front of the Public Service Board, the town asserts that state law does, in fact, permit municipalities to regulate some solar projects — setting up a showdown with state regulators that could have statewide implications.
“This could significantly impact the development of solar,” said New Haven Selectman Doug Tolles. “This is somewhat of a test case.”
At issue is whether nor not the Public Service Board must abide by town plans and municipal ordinances when reviewing applications for solar arrays not proposed by utility companies, which are already under the jurisdiction of the PSB.
TEST CASE
The New Haven Town Plan, adopted in 2011, limits utility projects, such as solar arrays, to 300 kilowatts.
This month, solar firm New Haven Solar LLC proposed a 350-kilowatt array on the east side of Route 7 near the Vermont State Police barracks. Tolles said it would be built to the north and south of an existing 150-kilowatt array, bringing the total electricity output of the site to 500 kilowatts.
Because the array is larger than the 300 kilowatts permitted in the town plan, the New Haven selectboard opposed the project in a filing to the Public Service Board.
“As a selectboard, our job is to defend the town plan,” Tolles said. “This violates the town plan, so we oppose it.”
The town also believes the proposal violates a section of the town plan that mandates that utility projects not “have an undue adverse impact on the scenic and rural character of the town.”
But beyond stating its position, New Haven argued that the Public Service Board is bound by state law to abide by its town plan. If the board agrees, it would have to reject the application or require New Haven Solar to amend its proposal to adhere to the town plan.
Representing the town, Middlebury attorney Cindy Ellen Hill argues that the 350-kilowatt New Haven Solar proposal does not fit under Vermont’s definition of a “public utility power generating plant,” because it does not distribute energy as a power plant would.
“The applicant does not comprise a ‘public utility’ under state or federal definitions of that term or under its common usage,” Hill wrote in the filing.
Hill further argued that state law only precludes cities and towns from regulating power generation plants proposed by public utilities, which the PSB does not consider New Haven Solar to be.
“A plain reading of the statute indicates that any other power generation facilities proposed by anyone other than a public utility are subject to municipal regulation,” Hill wrote, citing 14 V.S.A. § 4413.
New Haven also asked the Public Service Board to prohibit solar firms or landowners from filing applications for adjacent arrays smaller than 300 kilowatts, as a ploy to subvert New Haven’s limit.
Hill cited the example of this New Haven Solar LLC array, in which the 350-kilowatt array was proposed just four months after the PSB approved a 150-kilowatt array on a neighboring site.
If the board does not step in and consider adjacent projects as one, large project, solar firms have a loophole to exploit the regulatory process, Hill argued.
“To do otherwise would not only allow, but encourage, applicants to file sequential applications for small segments of their projects which can ‘slip through’ with fast-tracked, small-project status instead of undergoing the rigorous public and board review afforded to larger project proposals,” she wrote.
NEW PRECEDENT
If the Public Service Board is swayed by Hill’s argument, it could set a major precedent in how towns across Vermont can control how solar projects are sited within their borders. That’s because many arrays proposed in New Haven and statewide would meet Hill’s definition of projects that are subject to municipal regulation.
Tolles acknowledged the potential impact of the future ruling, but said that in the short term, New Haven is looking for a definitive answer from the state about how it can and cannot regulate solar projects in town.
“The ending may well be that we get a determination from the PSB about whether or not town plans count, and to what extent they count,” Tolles said. “That’s what I’m looking forward to.”
Tolles said in the past the PSB has ruled that it does not have to consider municipal zoning laws — a major point of contention when it last year approved a solar array in New Haven on a plot zoned for rural/agricultural use — but whether town plans must be followed remains unclear.
Tolles said the answer to this question is especially important because New Haven is in the process of rewriting its town plan. Tolles said he’s also heard rumors of other arrays that will soon be proposed in the town.
“If we find that town plans don’t count, we may change what we do,” Tolles explained.
The scope of the board’s decision will determine the extent of its impact. But even if it addresses only New Haven’s case, without addressing smaller-scale arrays in general, other towns would likely cite it as precedent.
“This could turn out to be nothing, or it could turn out to be an incredibly important case,” Tolles said. “Time will tell.”