After 12 years of legal disputes, the town of Bennington agreed to support two controversial solar projects before the state, following lawsuits from the developer that jeopardized a major local revitalization effort.
Plans for two adjacent solar projects on a forested, 27-acre plot between the Apple Hill residential area and highway have garnered pushback from residents over the years. The main concerns have been that the project locations are in violation of town plan and zoning rules and could negatively affect the scenic hillside and neighboring community.
The proposed Apple Hill and Chelsea solar fields — each designed to produce 2 megawatts of power — have gone through multiple iterations but were repeatedly denied by the state’s Public Utility Commission.
But solar developer and lawyer Thomas Melone has continually appealed the commission’s decision to dismiss his plans to the courts, though the Vermont Supreme Court struck down his appeals in the past, sending the decision back to the commission in 2019. There are four administrative agency appeals regarding the applications for Apple Hill Solar LLC and Chelsea Solar LLC pending in Vermont Supreme Court.
Thomas and his son, Michael Melone, have also filed lawsuits against state regulators, Bennington residents, the town of Bennington and the Apple Hill Homeowners Association. Even Gov. Phil Scott has been caught in the legal crossfire, according to Vermont Public.
Annette Smith, executive director of Vermonters for a Clean Environment, said she views the amount of litigation initiated by the solar developers as unusual and unprecedented in the history of Vermont utilities cases.
Bennington resident Dianna Leazer said at a June 9 Select Board meeting that locals and the town had “successfully defended our beautiful small town from a corporate solar developer who would scar our hillside with a huge commercial size solar development.” Leazer said residents “deserved to know all the factors that led to this decision” to ratify the agreement.
What’s in the agreement?
In a special Select Board meeting on June 3, the board voted 5-1 to ratify the settlement, agreeing to direct the town’s planning commission to consider rezoning the land as rural residential instead of rural conservation.
“There were a number of factors and risks in either accepting the agreement or rejecting it,” Select Board Chair Tom Haley said at the June 9 meeting. “We want to make clear that after consultation and in consideration of the town’s goals and needs, the Select Board approved the settlement agreement.”
According to the settlement, the town agreed the two projects are in a “preferred area,” are not prominently visible on a hillside, do not violate the town plan or town documents and do not have “adverse regional impact.” The town agreed to support the Melones’ various iterations of Apple Hill and Chelsea solar projects under consideration by the Public Utility Commission and the Vermont Supreme Court, as long as the projects maintain the same footprint or less.
“The town, having had an opportunity to fully review and assess the solar projects, agrees that it is not under any duress (economic or otherwise) and stipulates and agrees that the projects are in a ‘preferred area,’” the settlement stated.
Under the terms of the agreement, the Melones agreed to drop six lawsuits against the town, including an Open Meeting Law complaint and appeals regarding the Bennington High School redevelopment project — a yearslong plan to transform the vacant building into affordable housing, office spaces and a hub for child care and community resources under a private-public partnership.
The father-son duo also agreed not to file or threaten any lawsuit regarding the redevelopment project or the “validity of the Town Plan” against Bennington.
The town supported different versions of the solar development plans in 2018 after making changes based on public input in which the Melones agreed to drop the legal challenge to the town’s energy plan, damage claims and allegations of constitutional rights violations. But, the Public Utility Commission rejected those versions of projects.
‘Critical juncture’
Lawsuits the Melones filed against the town regarding the Bennington High project placed pressure on the town to support the solar projects, according to court documents filed by the town’s attorney and local officials.
In a now-dropped lawsuit, Thomas Melone under PLH Vineyard Sky LLC, challenged the town’s support for the Bennington High School redevelopment, calling it a “municipal waste” due to an alleged lack of site remediation and the funding structure of the project.
The complaint, filed May 2 in the Superior Court, also argued the town’s 10-year tax stabilization agreement for the $54 million project violated the Vermont Constitution’s proportional taxation clause by shifting the tax burden to residents.
In a May 26 affidavit, project developer Zak Hale said a lead bank investor who was set to provide $15 million was spooked by the pending lawsuit and paused funding on May 21. According to Hale, the lawsuit came at a “critical juncture,” jeopardizing construction just after it began on May 20. Hale wrote that the project could collapse, putting him at risk of bankruptcy and the town at risk of losing $1.5 million in American Rescue Plan Act funds.
Assistant Town Manager Dan Monks wrote in a separate affidavit that Melone had filed repeated lawsuits to pressure Bennington into supporting his solar projects, most of which courts have found baseless. Monks said Melone indicated he would withdraw the complaint if the town backed his plans and the “meritless complaint” threatened the future of the project unless it was resolved.
On May 20, town attorney Merrill Bent filed an emergency motion to stay discovery in the civil case before the Vermont Superior Court, asserting that the lawsuits challenging the Bennington High School redevelopment was part of a “spate of litigation against the town” to gain state approval of the solar projects.
This litigation waged against the town included seven state court and three federal court actions and “meritless accusations” against the town’s counsel and town officials, Bent wrote. According to the motion filed by Bent, the Melones also engaged in “ongoing, repeat threats to bury the town in lawsuits” under the Racketeer Influenced and Corrupt Organizations Act and the False Claims Act.
“The Plaintiff, along with its counsel, Thomas Melone, continue to weaponize the courts against the Town of Bennington in their singularly focused effort to force the Town to support their solar projects,” Bent wrote.
The community’s response
At the June 9 meeting, Leazer expressed disbelief after learning Bennington settled with the Melones, saying it’s apparent that “the Benn High redevelopment project was the major catalyst to ratification.”
“Essentially, if not ratified, the solar developer would continue to sue the town and delay the Benn High redevelopment project indefinitely, because the solar developer can, because their pockets are deep and they are attorneys,” Leazer said.
Leazer also expressed concern that the Melones could sue the town again if the agreement is nullified. Under the terms of the settlement, if the Bennington High project falls through or is not finished by the end of the year, both sides would be allowed to sue each other over any unrelated issues.
Smith said the Melones can also sue the town again if the town does not begin the process of reclassifying the parcel as rural residential within 10 days of ratification under the terms of the agreement. The Select Board has referred the discussion to the town’s planning commission, which plans to meet June 18.
Peter Lawrence, a retired attorney and Apple Hill resident, raised concerns at the June 9 meeting about how the settlement was ratified. He said the meeting violated Vermont’s Open Meeting Law by not disclosing the agreement to the public before ratification and not allowing the public to offer comment at the meeting.
Lawrence urged the Select Board to rescind its decision and hold another meeting “at which the public can be fully informed of all the details of the matter being considered and there be opportunity for public comment.”
But Monks said at the June 3 meeting that settlements deliberated in executive sessions are exempt from the law and are required to be negotiated outside of the public, so agreement could not be disclosed unless it was approved. Board member Ed Woods added that the meeting agenda was only warned for the ratification vote, not for public comment, so the board could not open the meeting for public discussion.
Thomas Melone said he’s pleased the disputes with the town have been resolved.
“My view is that the open meeting law was satisfied,” he wrote in a statement to VTDigger. “The Select Board took the vote in a public meeting and my view is that with respect to litigation that is all that is required under section 313 (of the Vermont statute).”
Bill Knight, Bennington resident and president of the Apple Hill Homeowners Association, said at the June 9 meeting that the two solar farms will be an eyesore for the town, as the elevation of the plot would make development visible from tourist attractions such as the Bennington Battle monument, the Mount Anthony Country Club and Welcome Center.
Thomas Melone said the last time the Public Utility Commission denied the petition for a Certificate of Public Good, it was due to the project fence’s partial visibility during off-leaf seasons. “That is no longer the case,” he wrote in an email. He added that concerns that the projects will be visible from the Welcome Center are “simply counterfactual.”
State Rep. Mary Morrissey, R-Bennington, said she was concerned the agreement did not stipulate the plans the solar developers could implement. She said the area is contaminated with PFOA, also known as perfluorooctanoic acid, and that previous iterations of the solar development plan included blasting the ledge of the area which would further spread PFOA into the air.
The Bennington region has the most severe PFAS contamination problem in the state, and PFOA groundwater and soil contamination has spread and increased over time in the area, according to research published this year.
Melone said he thinks the PFOA issues were addressed in testimony submitted to the Public Utility Commission in 2018 by a senior hydrologist, who studied the groundwater and soil and concluded that the projects were unlikely to cause PFOA levels to rise in Apple Hill’s residential drinking water wells.
A Public Utility Commission final order in September 2018 recommended the commission find no evidence that the projects would exacerbate PFOA groundwater contamination, but denied the Certificate of Public Good.
Smith said the commission is tasked with making the final decisions regarding the solar projects. After years of rejections by the commission and the Vermont Supreme Court, Smith said the efforts of the developer to gain town support “does not mean that the projects will ultimately be approved.”
Resident Lora Block expressed concern that the Bennington Select Board and Planning Commission may reclassify the site and that the Public Utility Commission could reverse its stance to support the projects if the zoning is changed.
“The town has certain aesthetic standards, and this sort of development will be visible from everywhere, from the highway and from the Bennington monument and from the beautiful golf course,” Block said. “The reason why we’re trying to prevent these solar farms is not because we’re against solar, but because the siting of these are against our town plan.”
Clarification: This story has been updated to clarify the conditions under which the town and solar developer could resume legal action, and the correct title of the Public Utility Commission.
