Update on the Upper Loveland Road Solar Project: Developer Objects to PUC Order for Town Review

Is the controversial Upper Loveland Road solar project coming back to the Town of Norwich for review?

The Public Utility Commission (PUC) recently issued an order directing the developer of the solar panel farm, an entity related to Norwich Technologies, to confirm ongoing support from the Town as a “preferred site.” The PUC order in that case (21-3587-NMP) specifies four significant changes to the project, since the developer made its presentation to the Planning Commission in July 2021, including increased deforestation and visibility.

However, in a motion filed with the PUC on April 30, the developer is requesting that the PUC withdraw its recent order. The developer asserts the PUC order is “arbitrarily re-open[ing] and second-guess[ing] the Town’s very clear decision, made numerous times, would be contrary to the evidence, extremely prejudicial, and clear and reversible error.”

The motion also takes exception to a footnote in the PUC order. In footnote 5, the PUC intimates that the developer may not have provided “forthright information” to the Norwich Planning Commission.

Notably, this is not the first time the PUC noted a lack of transparency by a Norwich Technologies related entity. In October 2023, the PUC criticized the developer of a Randolph project for making “factually incorrect verbal statements” to the Randolph Planning Commission and Selectboard at meetings seeking preferred site status.**

Background

The proposed project is a 500 kW (AC) group net-metering solar electric generation system, located off of Upper Loveland Road, near the cell tower. The project, which has an 8.2-acre footprint, is located in the Ridgeline Protection Overlay Area of the Town of Norwich and the Resource Protection Planning Area of the Town Plan.

Local zoning rules do not apply to solar projects. Instead, the developer needs to obtain a certificate of public good (“CPG”) from the PUC. However, local authorities exercise some control over the siting of projects through the issuance of a “preferred site” letter of support. More on preferred sites later.

In August 2021, the developer filed its petition for a CPG. At least nine residents living near the site oppose the project as a group. (“Norwich Neighbors”). A December 2021 VTDigger article about the project is here.

The Hearing Officer conducted an evidentiary hearing in April 2023 and the record closed in August 2023. On March 27, 2024, the Hearing Officer issued a 51-page Proposal for Decision that recommended that the PUC issue a CPG.

The Norwich Neighbors filed their comments to the proposed decision on April 11. Among the concerns raised was that the developer made “misrepresentation of material fact” that led to the issuance of the preferred site letter.

Changes to site plan

The PUC Order notes four significant changes to developers plan since its July 13, 2021, presentation to the Norwich Planning Commission.

• The limit of disturbance, including tree clearing, increased from approximately 6 acres to 8.2 acres.
• The current proposal reduces the 500 feet of screening described to the Norwich Planning Commission to approximately 250 feet of screening between the array and the nearest residence on Upper Loveland Road.
• The Facility will now clear the trees on the ridgeline, and the clearing will extend down the upper one-third of the eastern slope facing Upper Loveland Road and Interstate 91.
• The tree clearing on the ridgeline and eastern slope will likely be visible from Upper Loveland Road and Interstate 91, particularly during seasons when the remaining trees do not have leaves.

Preferred site status

By PUC Rule, the Upper Loveland Road solar project must be located on a “preferred site” to qualify for the above market rates paid under the Vermont net-metering program.

This preferred site requirement aims to encourage the development of solar energy on less environmentally sensitive locations. The PUC definition of preferred site includes already disturbed land such as rooftops, parking lot canopies, brownfields and landfills, as well as locations supported by both the municipality and the regional planning commission.

However It is overly simplistic to say all solar projects are equal and therefore the Town should grant preferred site status to every project, wherever located. Ratepayers subsidize power sales under the net-metering program, amounting to $49 million in subsidies in 2021, according to a 2023 Department of Public Service report.

Moreover, the PUC considers projects larger than 150 kW as “merchant generators,” according to the Act 99 Legislative Report on Net-Metering.  In that report, the PUC (then the Public Service Board) declared it was in the “public good” to mandate that large net-metering systems be located on preferred sites. This requirement ensures that “the significant financial and procedural advantages that net-metering systems receive in comparison to other generation projects” are justified. †

Accordingly, it is appropriate for Norwich to judiciously assess applications for preferred site status to safeguard the public good.

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Whether the Planning Commission and Selectboard have the opportunity to review preferred site status awaits the PUC’s ruling on the developer’s pending April 30 motion.

End notes

** See Petition of Randolph Davis Solar LLC, PUC Case No. 21-2939-NMP, ORDER REMANDING CASE TO HEARING OFFICER FOR FURTHER PROCEEDINGS dated October 11, 2023 at page 31.

† The Report to the Vermont General Assembly on the Net-Metering Program Pursuant to Act 99 of 2014 at page 21 says:

Several comments opposed the requirement that systems larger than 150 kW must be located on “preferred sites.” These comments assert that this provision exceeds the Board’s authority under Act 99 and will result in a significant reduction in the number and capacity of community net-metering systems developed in Vermont. The comments assert that this provision will hinder achievement of the state’s renewable energy goals and that firms developing large net-metering systems will suffer economic losses.

The Board has considered these comments and finds them unpersuasive. Larger net-metering systems that are not built on preferred sites are more like merchant generators. Such systems rely on the grid to export power to other retail users. As a matter of policy this type of development should be compensated through bilateral contracts or through participation in the regional wholesale market and not through the preferential terms offered by net-metering. Furthermore, given the size and scope of these facilities, it is appropriate to review proposals for these facilities that are located on green fields using the full procedures of Section 248. For these reasons, the Board finds that it is in the public good to require that large net-metering systems be located on preferred sites in order to justify the significant financial and procedural advantages that net-metering systems receive in comparison to other generation projects.

See also, the PUC’s discussion on forest clearing in 2023.

When it originally adopted the “preferred site” incentive framework, the Commission intended to ensure that the very largest ground-mounted net-metering systems – between 150 kW and 500 kW – were sited so as to have minimal environmental impacts. … Vermont ratepayers pay above-market rates for power generated by net-metering systems. Because ratepayers provide a subsidy for the development of these smaller in-state renewable energy projects, the Commission believes it is essential that these projects limit their impacts on forests, which play a vital role as carbon sinks and provide important habitat. Vermonters should not have to choose between protecting forests and supporting renewable energy development.

in re: Proposed revisions to Vermont Public Utility Commission Rule 5.100, Case No. 19-0855-RULE, ORDER RESPONDING TO PARTICIPANT COMMENTS (May 17, 2023).

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