MONTPELIER — The Senate Natural Resources & Energy Committee has passed out a bill that would among other things set up minimum setback requirements for solar energy projects and require the Vermont Public Service Board to ensure the projects comply with screening requirements that would be established by host communities.
Sen. Chris Bray, D-New Haven, and chairman of the committee, called the proposed legislation “a sea-change for the relationship between municipalities and the PSB on energy. (Municipalities) are given deference and control that they’ve never had before in this sort of development. It’s my hope that this gives them some comfort as these things develop, that they are not just going to be consulted, that they are going to be able to shape how these things are built in their communities.”
But some town officials are very concerned about the language in bill H.40, saying the prescribed minimum setback requirements are far too small and that many communities would have a tough time devising screening plans that would ultimately be difficult to enforce and could be disregarded if deemed to be too onerous on a developer.
“I don’t think it’s good for the state,” New Haven Selectman Jim Walsh said of the bill. “We anticipated a larger setback requirement on the larger facilities.”
The proposed minimum setback rules in H.40 would be less onerous on solar farms of around an acre than the New Haven zoning rules are for sheds and homes, Walsh said.
“It’s not logical… We’re worse off with these proposed setbacks than we were before,” he said, noting that the minimum setbacks start at 25 feet from a residential home and 40 feet from a roadway, which, Walsh said, wouldn’t even be out of the town’s right-of-way in some cases.
Bray said the new legislation is a product of many hours of talks between lawmakers, town officials and solar project developers and accomplishes three primary objectives:
• Guarantees municipalities party status in Vermont Public Service Board (PSB) reviews of solar projects. As it currently stands, municipalities have to ask for party status in such PSB proceedings, according to Bray.
• Establishes minimum setback requirements for solar projects, on a statewide basis. For solar projects generating 150 kW or more, the minimum setback would be 100 feet from a road. For proposals of 15 kW to 150 kW, the minimum setback requirement from a road would be 40 feet. There is no prescribed minimum for projects generating less than 15 kW.
Some flexibility has been built into the proposed law, Bray added.
“The PSB might require a larger setback than the minimum,” Bray noted. “On the other hand, if there is an agreement between the municipality, the solar applicant and each adjoining property owner, they can actually ask for a smaller setback.”
The bill would also require projects generating 150 kW or more to be set back at least 50 feet from a neighboring property line, and a minimum of 25 feet for projects of 15 kW to 150 kW. Again, the PSB could require a larger setback, or allow a smaller setback if the parties involved in the case come to a mutual agreement.
• Allows municipalities the right to define screening requirements for solar projects, and the PSB must ensure that the projects comply with those local requirements.
“It’s not optional,” Bray said.
There is a caveat, though. The communities are not allowed to draft screening requirements that are so onerous as to have the effect of prohibiting a solar array, or interfering with its “intended functional use.” The screening requirements related to solar also can’t be more restrictive than the screening requirements applied to other sorts of land development.
“You can’t just pick on (solar),” Bray said in interpreting the bill. “Treat them like other development; don’t ask them to be more screened than you ask any other similar development to be screened.”
The minimum setback requirements, Bray said, would give developers predictable guidelines, instead of the potential of all 251 municipalities coming up with unique requirements.
“At least this defines from the outset a minimum; it’s some consistency,” Bray said.
But that minimum is not enough, some officials are saying. They voiced hopes that the Legislature would reject H.40 or substantially change it before passing it.
“Do you want a 500 kW solar array 50 feet from your border?” asked Annette Smith, executive director of Danby-based Vermonters for a Clean Environment, a nonprofit whose stated mission includes “fighting for the economic well-being of all Vermonters assuring appropriate use of our resources — our people, our land, our air and our water.”
“… the distinction between the sizes of projects and the distances proposed is ridiculous and doesn’t solve problems,” Smith added. “In fact (provisions of H.40) bless what has already resulted in litigation in New Haven, where a proposed 150 kW project 25 feet from the neighbor’s property line was moved to 100 feet away, but the landowner is suing SunCommon. This is not good language. It will result in more litigation, not less. Twenty-five feet is a ridiculously close distance, some of the projects I’m reviewing have really upset neighbors when the arrays are proposed so close to the neighbor’s property line.”
Smith believes the bill would have the effect of “usurping authority from the towns,” while undermining property values.
And Smith is not convinced that the proposed screening requirements would do any good.
“The town can do a lot of work and then the PSB can ignore it if the developer claims it would have the effect of prohibiting the installation,” she noted. “Not helpful, and worse, creates a lot of work for towns that is likely to be ignored.”
Walsh said New Haven is fortunate enough to have a conservation commission that could draft some screening requirements in line with H.40.
“But other towns might not be able to pull something together,” he said.
Walsh also noted the possibility that many developers might devise solar projects just under 150 kW to avoid the greater setback requirements. He pointed to a master list of projects statewide showing a substantial number of projects in the 130 kW to 149 kW range.
It would be difficult for the Legislature to expand the solar project setback requirements in the future once the baseline has been set, Walsh said. He is hoping that the current draft of H.40 is reworked, or killed.
The legislation was passed out of the Senate Natural Resources and Energy Committee with a 5-0 vote on Wednesday, May 6. Bray said the bill could reach the Senate floor by Monday, May 11. If the Senate endorses the bill, it would then go back to the House. If the House concurs with the Senate, H.40 would go to Gov. Peter Shumlin’s desk.
Walsh doesn’t want the bill to get that far.
“It’s not over until they’ve left Montpelier, and they are still there,” Walsh said. “Maybe this is not the final draft.”
It was a month ago that Bray sought legislative approval for a “working group” to study the manner in which the PSB approves energy projects, and propose ways to improve that review process. The group would have been made up of various stakeholders who would have recommended legislation for introduction during the 2016 session.
But that idea was taken off the table, Bray said, for two reasons. First, lawmakers reasoned the state already has a joint House/Senate energy committee that could study the issue. Second, Bray said many legislators felt it was important to tackle the issue this session, rather than defer action.
Bray believes this latest legislative attempt, through H.40, will be the first in an ongoing effort to adjust and tweak the state’s solar siting rules in a manner that satisfies residents, communities and renewable energy advocates. The bill calls for a report on solar siting pertaining to screenings and setbacks to be made to House and Senate on Natural Resources and Energy by 2017, but Smith and some town officials think that’s too late.
“We are going to see a lot of damage to our state’s aesthetics by then,” Smith said. “The gold rush is happening now, and is going to ramp up through 2015 and 2016 to take advantage of the Investment Tax Credit. (It would be) no help with this report due Jan. 2017, except maybe it will report just how badly everything has gone.”
But Bray remains optimistic that a more thorough and thoughtful approach would prove useful.
 “I still believe there is a big opportunity to do better work in the coming years if we engage the primary stakeholders in these projects,” Bray said. “These are meaningful steps that are in H.40 now… But I think as we have more experience (with the new rules), we’ll want to do better, still.”
Reporter John Flowers is at [email protected].