A group of ten residents say Norwich Upper Loveland Solar LLC engaged in “bait and switch” behavior in obtaining preferred site status, from the Norwich Planning Commission and Selectboard, for its over 8-acre solar project off of Upper Loveland Road, near the cell tower. The project is in the Ridgeline Protection Overlay zoning district of Norwich.
The ten residents also say the visual impact of the project has changed, since the Planning Commission and Selectboard blessed the project.
The residents make these claims in a motion to dismiss the company’s petition for a certificate of public good (CPG). The PUC case number is 21-3587-NMP. Documents related to the case are on ePUC. See them here.
Notably, preferred site status is necessary for a project of this size (500 kW) to be eligible for a net-metering CPG. Also, according to the Vermont Secretary of State’s website, the principal of Norwich Upper Loveland Solar LLC is Norwich Technologies, Inc., in White River Junction. Norwich Technologies is a/k/a Norwich Solar.
Motion to dismiss.
In essence, the residents allege that Upper Loveland Solar, LLC misled the Town. They say the company provided “SITE PLAN B” and a Viewshed Analysis to the Planning Commission and Selectboard. However, to the PUC, the company submitted “SITE PLAN D.” In the latter, the footprint of the project shifted eastward by about 175 feet.
As a result, the ten residents say the visual impact of the project changed. They allege that the representations made to the Town – that the array will be hidden behind trees – is no longer true. The motion asserts that the new location “will fundamentally alter the view of the project from the east and significantly affect stormwater impacts to the abutting neighbors’ properties who reside immediately below the ridge.”
The photo above is from the motion. The residents say it simulates “the view from neighboring Hanover, New Hampshire if the SITE PLAN D project proposal is allowed to be relocated to the top of the ridge and down the eastern steep slopes of the ridge.”
In addition, the ten residents ask that the PUC impose sanctions against Norwich Upper Loveland Solar for its misconduct. They assert “the project’s Preferred Site Letter approvals were acquired through the use of false and/or material misleading information, resulting in the perpetration of a fraud upon this Tribunal.”
In their reply memorandum, filed on June 20, the ten residents further allege that the solar developer knew in advance of meeting with Town officials that the footprint of the project would change. But the company told the Planning Commission it would be “very minor.”
The response by Norwich Upper Loveland Solar, LLC
Upper Loveland Solar, LLC does not dispute that the project’s footprint shifted by about 175 feet. But, the company indicates the location changed to create a buffer for a vernal pool identified by the ANR. The change “was entirely consistent with the iterative process for development and review of solar projects,” says the LLC in its response filed with the PUC on June 6.
The company does not directly address the visual impact issue. However, it challenges the admissibility of the simulation photo. “The simulation appears as exaggerated features with warped array rows, rather than parallel, as if viewed through a round lens, and it appears as though the remaining trees have been removed.”
Observations by the Norwich Observer
First, I would love it if Upper Loveland Solar, LLC submitted a simulated photo of the solar farm from Hanover. Notwithstanding the LLC’s objection to the residents’ simulation photo, the impression is that the project will be very visible from parts of Hanover. What parts of Hanover? What does Upper Loveland Solar, LLC say the project will look like, from the same vantage point?
Second, the Town is getting shortchanged, I think. The solar developer presented one visual impact analysis to the Town and a different one to the PUC. See Aesthetics, Orderly Development and Above-Ground Historic Sites Assessment Report, August 30, 202, Exhibit NUL MS-6, filed with the PUC.
That does feel like bait and switch. But only if the footprint shift of 175 feet matters.
Location matters?
Here, location seemingly matters. At the February 23, 2022 Selectboard meeting, Town Manager and Director of Planning Roderick Francis noted the project sits on a depressed area of ground. He described it as an “almost like a bowl shape which that lends itself to being easy to shield or screen from visual impact.” YouTube video of February 23, 2022 meeting at 1:40:10.
Does moving the project 175 feet take it out of that bowl? I don’t know. Will it affect the visual impact in a meaningful way? And again, I don’t know. What strikes me, however, is that the Planning Commission and Selectboard never got the chance to make that review. If the solar company can make changes after the fact, is the preferred site approval process by the Town a pointless exercise?
As a comparison, the Norwich zoning rules have the concept of a development envelope. The DRB delineates an area on a plot of land where structures may be built. That protects other resources such as wetlands and viewsheds. It also gives the landowner some leeway on where it can build. Building outside the envelope is a no-no, unless the DRB approves the change. Is preferred site approval like delineating a building envelope?
Lots of questions. No answers.
All this seems to indicate that “someone or some entity” did not play by the rules.