Supreme Court sends Basin Harbor array back to PSB

FERRISBURGH — An opponent of Basin Harbor Club’s 150-kilowatt solar array last week won a Vermont Supreme Court decision against the Public Service Board.

However, the decision addressed procedure, not the issues at the heart of the case, such as the array’s impact on the lakefront neighborhood.

On Friday, Oct. 16, the Vermont Supreme Court ruled that the PSB erred in not honoring neighbor Mary McGuire’s motion that the board reconsider its Nov. 14, 2014, award of the Certificate of Public Good (CPG) that allowed Basin Harbor Club to build the array on 1.5 acres at 4800 Basin Harbor Road.

The project is sited about 100 feet from 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.

On Jan. 14, the PSB denied McGuire’s motion to reconsider its CPG, ruling that McGuire lacked party status because she had not filed as an “intervener” in the case.

But last week the court, in a decision written by retired Justice James Morse, disagreed.

“Although McGuire disputes BHC’s (Basin Harbor Club’s) claim that party status was required to appeal or move for reconsideration, she also asserts that she became a party in effect in the course of the proceeding and therefore properly appealed and moved for reconsideration,” Morse wrote. “We agree with the latter assertion.”

Although the court decision did not touch on the issues McGuire raised in her motion to reconsider, her family members said they are happy with the ruling and confident moving forward.

“We are very satisfied,” said Elizabeth McGuire, McGuire’s daughter. “In order for the PSB to consider our Motion for Reconsideration they needed to acknowledge us as a ‘party.’”

LOOKING AHEAD

McGuire said as of Tuesday she had yet to hear from the PSB as to what the next step would be.

“It is not clear whether we will be required to re-submit it or whether they will review the motion we filed earlier this year,” she said. 

PSB clerk Susan Hudson said on Tuesday she could not describe how the PSB would go about responding to the decision or how long a response might take.

“It’s been remanded back to the board for consideration, so we will act accordingly. I’m sorry I can’t give you any more information than that, because this is something pending before the board,” Hudson said. “If there was a set time on it, that would be one thing, but there isn’t, and the board will move as expeditiously as it can.”

If the PSB denies a motion of reconsideration — one that raises a number of issues, including impact on the neighborhood and alleged misrepresentation on Basin Harbor Club’s application — McGuire said the family would appeal that denial to the Vermont Supreme Court, which already has heard some of the arguments.

“This time our appeal would only be on the merits of the case. We would no longer have to address the questions regarding party status,” she said, adding, “based on our oral arguments we are very confident regarding a ruling on the merits of the case.”

McGuire said she hopes last week’s ruling on the PSB’s procedures will help change what she calls a “confusing and convoluted” PSB solar siting process.

“This decision draws attention to the confusion and challenges inherent in the PSB process. Property owners find themselves fighting to protect their homes and the aesthetics of their communities against solar developers who are unfortunately incentivized by tax credits and motivated by their own financial gain, with little concern about the immediate and long-term impacts on Vermont,” she said.

“We hope that this ruling encourages the Legislature and the PSB to create a clear and reasonable process for solar permitting and siting that is fair to all parties involved.”

RULING DETAILS

The Supreme Court decision noted that generally “non-parties to a suit do not have standing to appeal,” but, “There are, however, a number of generally recognized exceptions to this rule.”

The decision stated that McGuire “maintains with some validity” that “she was not notified of the need to apply for party status, reasonably believed she was a party, and was effectively treated as such.”

The decision pointed out a PSB mailing to McGuire included a list of all “Notified Parties,” on which her name was stated; said “nothing about the need to intervene”; and “appeared to imply she already was (a party) by stating that comments were due within 10 days of the notice to ‘all required parties.’” In a footnote, the decision pointed out the PSB has changed that language to “all required recipients.”

The Oct. 16 decision specifically leaves untouched the grounds upon which neighbors opposed the project. “Our disposition renders it unnecessary to address McGuire’s claims that the Board erred in issuing the CPG,” Morse concluded.

ARRAY OF ISSUES

Issues raised by McGuire and other opponents include:

•  The impact of the array on the view and property values of the neighborhood.

•  The refusal of the PSB to consider the opinion of the array’s immediate neighbors under the “Quechee test,” which is often used in zoning and Act 250 applications. Boards use the Quechee test as a yardstick to determine whether a proposed development would offend an “average person.”

The PSB has maintained in many cases that immediate neighbors cannot be considered “average persons” simply because of their proximity to projects, and McGuire’s motion challenges that interpretation.

•  Basin Harbor Club’s alleged failures to consider the array’s impact on the historic nature of the area, to disclose in its application that historic structures were in the area, and to conduct a full archaeological survey of the site.

•  Claims that the Ferrisburgh Town Plan encourages “small-scale” solar and other renewable energy projects, not larger solar arrays and that the PSB “overlooked evidence presented by neighbors,” including a 2004 case involving a quarry and an access road that the motion argues should have been used as a precedent.

•  A claim that proposed landscape buffering is inadequate between Mary McGuire’s home, 200 feet from the solar array site, and from Mile Point Road traffic.

•  A statement that glare from the panels will affect pilots of planes landing at the Basin Harbor Club’s private airport at certain times of day at certain times of year.

Basin Harbor Club owners have maintained that the area is not a historic district, even if some seasonal homes are individually considered historic; that the project meets all town zoning criteria and renewable energy is supported in the town plan; and that the site was chosen because of proximity to three-phase power and other environmental initiatives, both existing and planned.

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