Responding to a solar facility pre-filing notice or application to the PSB can be a daunting task, especially if you don’t see many of them. Towns and neighbors often feel disempowered by the state-level administrative process. PSB rules are far more mysterious than ordinary court rules, and often the rule says one thing but in practice something different happens. These tips should help you get started and feel a bit more confident about municipal participation in the §248 Certificate of Public Good process for solar electrical generation projects.
1. Carefully review the applicant identity and site information.
Check the applicants’ name against the Vermont Secretary of State corporations database to ensure that they are a Vermont-registered entity. Determine if address of the project site is a 911 listed address in your town, and that you can associate that address with a parcel number. Note any conflicting subdivision, easement or development permits as well as if there are any other solar arrays on the same parcel. It can be difficult to determine from an application where a project is being proposed for construction. Promptly request clarification -- GPS coordinates, stakes in the ground, parcel numbers, etc. Also check the abutters list -- did the applicant serve everyone required to be served?
2. Compare the proposed project to your Town Plan and zoning bylaws.
Does your town have specific standards for this area or zone? Clearly stated goals regarding development? Special concerns like scenic viewsheds? Have you adopted a screening bylaw as authorized by H.40?
3. Promptly calendar your response deadlines.
Deadlines in matters before the Vermont Public Service board run from the date something was filed with the Board, to the date the Board receives your response. This means if an applicant sends you a pre-filing notice for a 150kW solar array, your 30-day timeline for commenting runs from the date that notice was filed with the PSB -- which might be several days before you received it. By close of business on the 30th calendar day from when it was filed, your comments must be in the PSB’s hands. Overnight mail in Vermont frequently does not get there overnight. You must make sure your comments get there in time, which often means hand-delivering them. Given that most Town boards especially in small Towns may meet infrequently, it’s critical to determine the deadlines the minute a pre-filing notice or application arrives.
4. Submit comments even if the Town approves of the project.
Your Town may approve of the project as presented on the application. However, projects are not always built the way they are presented on the application. They may install the array at a different location on the parcel; they may use larger panels than indicated; they may never plant the screening, or the landscaping may die. Frequently site plans show trees for screening that would scale out to 40’ across in the real world. Consider submitting comments indicating that the Town approves of the project -- but only if built exactly as indicated in the application file. This gives you standing to challenge or enforce against changes later.
5. Comment on both the pre-filing notice and the application.
You’ll receive a pre-filing notice as well as the application on solar arrays larger than those that serve a single house. If you comment on the pre-filing notice, be sure to re-submit comments, or at least send a letter re-confirming your earlier comments, when the application is filed. This ensures that the comments are entered into the appealable record.
6. Check the application for project changes.
The project proposal may well change between the pre-filing notice and the actual application. Project proponents may respond to agency or neighbor issues or to market forces -- such as buying larger, cheaper panels -- so the application may look different than the pre-filing notice. Don’t assume that they are the same -- compare them carefully.
7. Assert your party status.
H.40 gave town Selectboards and Planning Commissions party status in solar energy projects. Previously, Towns had to apply for intervenor status, the granting of which was in the discretion of the PSB. It will be a few years before cases work their way through the Vermont Supreme Court establishing the parameters for exactly what that party status means. In the mean time, clearly state on your pre-application comments and on your application comments that your Town is a party to the proceedings.
8. Check for impacts on Town assets and property.
It is generally assumed that the Vermont pre-emption law precludes Towns from regulating solar facilities. While this question has not yet been clearly litigated to the Vermont Supreme Court, there is no indication that PSB matters are exempt from municipal regulation on non-land-use issues. For example, if the project construction and maintenance will require access to the parcel from a Town road, the Town may require a road-access permit, and overweight truck permits for hauling construction equipment into the site. A project that would involve access over Town- owned lands would also require Town permission.
9. Assemble a working team to address a §248 Checklist.
Solar and other energy facilities are reviewed by the PSB for compliance with the criteria listed in 30 VSA §248. Some of those criteria have been conditionally waived for smaller solar projects under PSB rules. Put together a team of town officials and residents who can review solar applications with knowledge about these criteria -- aesthetics, historic structures, public safety -- and offer expert testimony if necessary. Expert witness costs can often be minimized when knowledgeable local residents lend a hand.
10. Be certain that you understand economic impacts on the Town.
Most Town interventions on solar development proposals relate to aesthetics and orderly development. Be sure that you understand the economic impacts of the project as well. Speak with your lister about how much the project will be paying in property taxes to the Town. Given favorable state treatment of these facilities, it will not be much money. Also examine whether surrounding property values will go down -- will nearby homes be reduced in assessment value given the change in their view, thus lowering the Town tax revenue?
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