New Haven takes regulator to court over solar array

NEW HAVEN — After years of disagreements with the state utility regulator over the size and number of solar arrays being sited in the town’s scenic vistas, the New Haven selectboard has appealed to the Vermont Supreme Court.
The town has asked the Vermont Supreme Court to reverse a Public Service Board order granting a Certificate of Public Good for a 500-kilowatt solar array that would sit 900 feet west of Route 7 on the Russell Farm property. In a May 18 legal brief, the town contends that the PSB was “arbitrary and capricious” in its procedures for reaching the decision and that the PSB acted “in violation of its own rules” and “outside the scope of its legal authority.”
Vermont Law School’s Jared Carter noted that increasingly Vermont towns want a say in determining where solar arrays are erected. The Legislature last month approved S.230, a bill that seeks to answer some of those concerns; it awaits Gov. Shumlin’s signature or veto.
“This is a conversation that’s going on in the state of Vermont right now: What role do communities play when it comes to energy siting and energy production?” said Carter, who specializes in legal activism and environmental law. “It’s not surprising that you see towns being more involved both politically and in the legal realm in the courtrooms and in the PSB in those conversations.”
Green Lantern Group is a Waterbury company whose portfolio of activities includes solar development in Panton and Ferrisburgh. Last July, it asked the Public Service Board to OK the Route 7 solar project known as New Haven GLC Solar. The array would be sited at 3423 Ethan Allen Highway on 3.8 acres of a 59-acre parcel owned by the Russell family, who no longer live or farm at that location.
The PSB granted the Certificate of Public Good for the 500 kW solar array on March 4. The New Haven selectboard voted unanimously to appeal to the Supreme Court on March 22.
According to Project Manager Sam Carlson, the project is designed to be set back 900 feet west of Route 7 and at least 80 feet from abutting properties, such that the array would not be visible from Route 7 or from abutting properties. The site is down a steep incline, west of the white farmhouse and barn facing the state highway a little north of New Haven Power Equipment.
The sloping open land is currently used as a cornfield.
Carlson said his company worked with the New Haven Planning Commission in an effort to make the array invisible.
“We went to a really extreme level to be sensitive about the siting of this project, knowing that New Haven specifically and other municipalities around the state are looking very closely at aesthetics and siting and that that is a top concern,” said Green Lantern Managing Partner Luke Shullenberger. “So we’re unclear as to what the controversy is and why the selectboard would choose to spend taxpayer dollars to appeal a CPG for a project that is not visible.”
Although the CPG in question is for the proposed GLC solar array, the town’s main beef is with the Public Service Board itself.
In essence, the town’s 44-page brief to the Supreme Court (posted in its entirety at the end of this article) asserts that the Public Service Board did not play by the rules in its handling of and ruling on the GLC case. In legal terms, the town asserts that the Public Service Board has been “arbitrary and capricious” and has acted “in violation of its own rules” and “outside the scope of its legal authority.”
Main arguments in the brief include the following:
•  The PSB held no hearings on the proposed array, despite being required to do so by law and despite the town’s presentation of “a substantial showing of significant issues.” The town asserts that the PSB’s authorization “to ‘modify’ the hearing process” does not authorize it to “deny or deeply curtail” hearings entirely.
•  The town asserts that the PSB did not give “due consideration” to a clause in the town plan that limits solar arrays to 300 kW and other aspects of the town plan.
•  The town claims that the PSB’s March 4 order authorizing the Certificate of Public Good inaccurately described the project in a number of significant ways, such that its order issuing a CPG for the GLC array is in many instances “devoid of factual support.”
•  The PSB “arbitrarily and capriciously” rejected a portion of the town’s comments. The PSB said that that particular set of comments arrived after a cutoff; the town claims they arrived well within the deadline.
One of the most extensive arguments in the brief is that “the PSB was arbitrary and capricious and acted outside its legal authority when it waived its own mandatory rules regarding interconnection procedures, without statutory or regulatory authority to do so.” Specifically, the town claims that when the project failed part of the “Fast Track” review for sustainability and reliability in connecting to the electric power grid, the PSB should have followed the rules and required GLC to do additional studies at its own expense. Instead, the PSB accepted Green Mountain Power’s assertion that that particular Fast Track criterion was “no longer relevant.”
Contrary to the PSB’s order granting the Certificate of Public Good, the town’s brief asserts that the criterion in question “is not mere administrative protocol to be brushed aside when inconvenient for a net metering project, but rather reflects a standard necessary for system reliability and public safety.” The brief also draws attention to the fact that for another project on the same distribution circuit the PSB ordered a hearing.
“What we wound up asking for at the end is for the Supreme Court to remand this back to the Public Service Board so that the application could be done correctly, which we maintain, of course, it wasn’t,” said Selectman Doug Tolles, who has acted as the New Haven selectboard’s point person on a range of solar issues.
Important to the controversy is whether a 500 kW array violates the spirit or letter of the current New Haven Town Plan, written in 2011. The town plan states that:
“in addressing commercial power generation, we suggest the following power generation guidelines:
•  The total capacity of the generation project is less than 300 kW;
•  The project is proposed to meet the needs of Vermont electric consumers; and
•  The generation facilities are sited and designed so that they do not have an undue adverse impact on the scenic and rural character of the town.”
Interpretations differ as to whether 300 kW is a firm or a suggested limit.
An update to the town plan, currently under development, uses a differently worded approach to balancing the town’s desire to support renewable energy with its desire to protect its rural, scenic and agricultural character. This updated plan has not yet been officially approved by the selectboard nor voted on by the public.
A draft can be found on the town’s website and at http://tinyurl.com/hazoq22; amendments to that draft are at http://tinyurl.com/jn65rro. The planning commission held its first public hearing last Wednesday.
“We believe that the Public Service Board applied a very thorough and rigorous review of this project the way it does to other projects,” said Shullenberger. “We believe it used the same process to assess the merits and the public good of this project that it has done on hundreds of others around the state.”
Reporter Gaen Murphree is at [email protected].

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