Basin Harbor solar heads back to court

FERRISBURGH — A solar array erected on Basin Harbor Club property and opposed by some neighbors, particularly on nearby Mile Point Road, is headed for the second time to Vermont Supreme Court.

Neighbor Mary McGuire and her family are appealing to the Supreme Court an April 24 Public Service Board (PSB) denial of McGuire’s Motion for Reconsideration.

That denial meant the PSB upheld its original November 2014 decision that granted the Basin Harbor Club a Certificate of Public Good — essentially a permit — to install the 1.5-acre, 150-kilowatt array.

Elizabeth McGuire, Mary McGuire’s daughter, confirmed on Tuesday, without comment, the appeal had been filed in May.

Meanwhile, the PSB has also determined — and Basin Harbor Club officials have acknowledged, according to PSB documents — that the club stated falsely on its application for a Certificate of Public Good that the solar array was not near any historic structures.

According to the documents, the PSB is seeking testimony from the McGuires, the club and the Department of Public Service (DPS), which represents the public interest before the PSB, to determine what penalty the club should face for misrepresentation.

To this point, only the DPS has responded in writing on the PSB website. On May 22 DPS Director for Public Advocacy James Porter recommended a $20,000 fine, but not that the array should be removed.

RECONSIDERATION, APPEAL

The McGuires won their first round in the Supreme Court. First, in January 2015 the PSB denied Mary McGuire’s original Motion for Reconsideration, ruling she did not have official party status and the PSB thus did not have to respond.

But in October 2015 the court ruled the PSB had treated McGuire as if she were a party to the proceedings, and ordered it to reconsider its decision.

In its April 24 denial, the PSB anticipated the McGuires’ just-filed Supreme Court appeal. The PSB wrote that because of the slow pace of the investigation into Basin Harbor Club’s application misrepresentation, “we have decided to issue this Order so that jurisdiction of the case can be returned to the Vermont Supreme Court to consider Ms. McGuire’s pending appeal.”

The critical issues argued by McGuire and the PSB appear to be those of “orderly development” and “aesthetics.”

As for the orderly development issue, the PSB decision states that “Ms. McGuire contends that the Board failed to give effect to plain language in the Ferrisburgh Town Plan that limits development in the Shoreland District in which the Project is located. According to Ms. McGuire, the Board ‘ignored’ language in the Plan that requires development in the Shoreland District to be visually, functionally, and physically related to Lake Champlain.”

The PSB wrote in response, “the language cited by Ms. McGuire is general in nature, does not provide a clear standard for the Board to apply, and does not constitute a prohibition of development in the Shoreland District.”

In opposing the PSB approval, McGuire also pointed to the PSB’s statement that the project does have an adverse impact: “Ms. McGuire contends that the Board’s conclusion that the Project would have an adverse impact … conclusively demonstrates that the Project is counter to the Plan’s vision for development in the Shoreland District.”

But the PSB countered, “Also informing our decision is the presence of the intervening hedgerow, road, and the location of the lakefront homes … The presence of these features serves to isolate the Project from the lake and thereby lessen its impacts on the lake.”

On aesthetics, the PSB writes that McGuire makes three central points:

•  “That the language in the Plan that states that development in the Shoreland District should be visually, functionally, and physically related to Lake Champlain constitutes a clear, written community standard that is violated by the Project, resulting in an undue adverse aesthetic impact.”

•  “That (Basin Harbor Club) failed to undertake all generally available mitigation that a reasonable person would take to lessen the impacts from the Project.”

•  “The Board erred in concluding that the average person viewing the Project would not be shocked or offended.”

On the first point, the PSB replies, “the language cited by Ms. McGuire is general in nature, does not provide a clear standard for the Board to apply, and does not constitute a prohibition of development in the Shoreland District.”

On the second point, the PSB claims the club “chose a site with existing vegetative screening to reduce the Project’s visual impacts,” moved the array to “take advantage of the screening offered by the existing hedgerow,” and added “vegetative screening … to further reduce views of the Project from Ms. McGuire’s property. We again conclude that these steps constitute sufficient, reasonable mitigation.”

The final point represents what could be argued is a Catch-22 for neighbors of any such project: The PSB considers them by definition not to be “average persons” for the purpose of determining whether these projects are aesthetically offensive, and cites court precedent from a Rutland case.

“For several years now the Board has been clear that it does not consider owners of adjoining properties to be ‘average persons’ for the purpose of performing an aesthetics analysis under Section 248, reasoning that such property owners have particularized interests that set them apart from average persons … Our analysis in this case is consistent with the Supreme Court’s ruling in the Rutland Renewable Energy decision.”

MISREPRESENTATION

There is no disagreement that the Basin Harbor Club (BHC) should have represented in its application that there are historic properties in the general area of the array. A letter dated Dec. 30, 2014, from project neighbor Suzanne Fay alerted the PSB that there are historic properties near the project site.

PSB hearing officer John Cotter wrote on March 23, “It is uncontroverted that several historic resources are located nearby the project and this fact should have been disclosed in the application.”

Cotter also noted that the club has cooperated with the Vermont Division for Historic Preservation (DHP) to mitigate the impact of the array to the DHP’s satisfaction: “DHP states that … it believes that a stipulation it reached with BHC in Docket CPG #NM-5006 will be protective of the nearby historic sites and DHP’s interests.”

The PSB has a series of deadlines for receipt of testimony and discovery scheduled over this summer, as well as requests to the McGuires and the club for their opinions on appropriate penalties. Elizabeth McGuire did not respond to emails seeking comment, and attempts to reach Basin Harbor Club owner Bob Beach by phone before deadline were not successful, although Beach tried to return calls.

In making his recommendation for a $20,000 fine, DPS Director for Public Advocacy Porter on May 22 wrote, “First and foremost, the provision of false and misleading information in the application was very harmful to the regulatory oversight process. Provision of accurate information is the cornerstone of the Board’s application process.”

Porter wrote that the club received an “economic benefit from providing false and misleading information” because it otherwise might have had to pay for “a historic resource and archeological resource inventory,” deal with “additional conditions” on its Certificate of Public Good (CPG), or move the array.

He wrote a penalty should be enough “to deter other CPG applicants from similar conduct,” and did not rule out that the misrepresentation might have been “part of an intentional effort to avoid properly addressing the true nature of the historical context that existed at the project site.”

But Porter concluded in recommending the $20,000 penalty he did “not believe that revocation of the Certificate of Public Good for this project is necessary at this juncture. However, the importance of filing accurate and truthful information in applications to construct generation facilities can not be underscored. The integrity of the process to award Certificates of Public Good must be protected.” 


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