Top Ten Tips for Towns
SOLAR ELECTRIC GENERATION FACILITIES:
Things to Consider Requesting in
MOU Negotiations and CPG Proceedings
When a project developer applies for a §248 Certificate of Public Good to build a solar electric generation facility in your Town, how can you help ensure that the project, if approved, will benefit your community? These tips suggest some items that you might consider requesting be included in any CPG issued for a solar project, or in an MOU with the developer that is entered into the PSB record and included as an enforceable condition of the CPG. Your leverage for successfully negotiating favorable conditions to a CPG is increased if you are prepared to fight the project through the PSB process and on to appeal at the Vermont Supreme Court if agreement is not reached.
SOLAR ELECTRIC GENERATION FACILITIES:
Things to Consider Requesting in
MOU Negotiations and CPG Proceedings
When a project developer applies for a §248 Certificate of Public Good to build a solar electric generation facility in your Town, how can you help ensure that the project, if approved, will benefit your community? These tips suggest some items that you might consider requesting be included in any CPG issued for a solar project, or in an MOU with the developer that is entered into the PSB record and included as an enforceable condition of the CPG. Your leverage for successfully negotiating favorable conditions to a CPG is increased if you are prepared to fight the project through the PSB process and on to appeal at the Vermont Supreme Court if agreement is not reached.
1. Setbacks.
Check the setbacks required by H.40. These are now mandatory -- but you can also consider waiving them if something about the particular site would make this more appropriate. For example, tucking a project right up against a side property line if the ground drops off steeply there might make the project less visible from a roadway or adjoining residence. Consider what the Town’s required setbacks are for the same area, and whether it would be more appropriate to request those. Site plans often do not include GPS coordinates for the proposed project, or the property lines of the parcel. Be sure to request this information as soon as a pre-filing notice comes in so that you can accurately determine on the ground and on Google Earth where the project is proposed to be built, and make an assessment of what setbacks would work best.
2. Screening.
Does your town have a screening bylaw as authorized by H.40? If so, H.40 says that the PSB is supposed to defer to it unless it is unreasonable. If not, does your Town have other clear screening standards in the Town Plan or zoning bylaws that you can request?
3. Agreement with neighbors and payment for landscape architects.
In appropriate circumstances, consider taking the position that the Town will not oppose the project if the developer works out agreement with the project neighbors regarding siting, screening or other mitigating measures. When a Town or neighbors wants better screening options than those presented by the developer, the Town and neighbors are often pressed to come up with their own aesthetic mitigation plan. This means hiring someone with landscaping expertise to devise a siting and screening plan. Consider requesting instead that the project developer be required to pay for a landscape architect to work with the Town and neighbors to devise an appropriate plan that all can agree on.
4. Information, compliance and costs regarding construction.
Although solar electric generation facilities are built swiftly in most cases, don’t forget to request information, compliance, and potentially costs and fees regarding construction-related activity. This could include road access permits and driveway upgrades within the Town right-of-way; overweight truck permits; limits on hours of construction work; personnel to direct traffic during construction (especially where the construction access driveway is at a difficult-to-see location).
5. MOU for payment in lieu of taxes, or other economic concessions.
Be sure that you fully and accurately understand the amount of property taxes that the project will generate for the Town. Because of steeply discounted tax rates set by the State, the property taxes paid by solar generation facilities may well be significantly less than you anticipate. Depending on siting, the project may also result in a reduction of surrounding property values and a corresponding drop in property tax revenue to the state. Consider requesting, in MOU discussions, an annual payment in lieu of taxes from the developer, or a one-shot payment to help compensate the Town for the cost of reviewing and addressing the proposed development.
Check the setbacks required by H.40. These are now mandatory -- but you can also consider waiving them if something about the particular site would make this more appropriate. For example, tucking a project right up against a side property line if the ground drops off steeply there might make the project less visible from a roadway or adjoining residence. Consider what the Town’s required setbacks are for the same area, and whether it would be more appropriate to request those. Site plans often do not include GPS coordinates for the proposed project, or the property lines of the parcel. Be sure to request this information as soon as a pre-filing notice comes in so that you can accurately determine on the ground and on Google Earth where the project is proposed to be built, and make an assessment of what setbacks would work best.
2. Screening.
Does your town have a screening bylaw as authorized by H.40? If so, H.40 says that the PSB is supposed to defer to it unless it is unreasonable. If not, does your Town have other clear screening standards in the Town Plan or zoning bylaws that you can request?
3. Agreement with neighbors and payment for landscape architects.
In appropriate circumstances, consider taking the position that the Town will not oppose the project if the developer works out agreement with the project neighbors regarding siting, screening or other mitigating measures. When a Town or neighbors wants better screening options than those presented by the developer, the Town and neighbors are often pressed to come up with their own aesthetic mitigation plan. This means hiring someone with landscaping expertise to devise a siting and screening plan. Consider requesting instead that the project developer be required to pay for a landscape architect to work with the Town and neighbors to devise an appropriate plan that all can agree on.
4. Information, compliance and costs regarding construction.
Although solar electric generation facilities are built swiftly in most cases, don’t forget to request information, compliance, and potentially costs and fees regarding construction-related activity. This could include road access permits and driveway upgrades within the Town right-of-way; overweight truck permits; limits on hours of construction work; personnel to direct traffic during construction (especially where the construction access driveway is at a difficult-to-see location).
5. MOU for payment in lieu of taxes, or other economic concessions.
Be sure that you fully and accurately understand the amount of property taxes that the project will generate for the Town. Because of steeply discounted tax rates set by the State, the property taxes paid by solar generation facilities may well be significantly less than you anticipate. Depending on siting, the project may also result in a reduction of surrounding property values and a corresponding drop in property tax revenue to the state. Consider requesting, in MOU discussions, an annual payment in lieu of taxes from the developer, or a one-shot payment to help compensate the Town for the cost of reviewing and addressing the proposed development.
6. Contribution to local firefighters due to the unique fire hazards of solar facilities.
Solar arrays present unique hazards to firefighters. Solar arrays generate power whenever there is a
light source -- including, according to UL, emergency light banks -- and can not be switched off.
This means that when there is a fire, firefighters face a serious risk of electrocution. Consider
asking the developer for a contribution towards training or equipment for local fire services.
7. Public education regarding archaeological, historic or environmental resources.
If the project implicates cultural or environmental resources like wetlands, consider asking the project developer to have their related consultants prepare informational or educational materials regarding that resource for display in the local library, town offices or school, or to create a public or school workshop. Some developers may welcome the chance to generate good public relations as well as contributing to local knowledge about Town cultural and environmental resources.
8. Contribution to land conservation efforts.
Consider asking the project developer to mitigate negative project impacts by contributing to land conservation efforts. This could involve buying a conservation easement for a buffer area around the project, or contributing to the Town purchase of parkland at another location to make up for the loss of open space. There can be room for creativity where the landowner of the parcel underlying the project may be able to take a tax credit for donating a conservation easement to the Town which can help offset the income from the lease or sale of the property to the developer.
9. Agreement that there will be no additional projects by this developer.
Solar projects have a troubling tendency to experience ‘mission creep’: a small one goes in, then another right next door, then another 50 yards away, then another by the same developer on the next parcel over. Consider requesting in MOU negotiations that the developer agree that there will be no further expansion of the proposed project, and no additional solar development by that developer (be sure to include all their related personnel, LLCs and other entities) within the Town.
10. Decommissioning and site restoration.
Decommissioning solar electric generation facilities is being given short shrift in most PSB solar proceedings. At present, there are no solar panel recycling facilities, and it is quite unclear how solar panels -- which contain a number of toxic and hazardous materials -- will be disposed of. Since most solar facilities are built and owned by single-purpose LLCs created to take advantage of tax breaks, it is also unclear who will even own the array by the time it reaches the end of its useful life or if panels malfunction. Request a clear, enforceable, and amply capitalized decommissioning fund along with strong guarantees that the site will be restored to its prior condition. Think about whether the construction access should be removed or remain in place. Consider requesting a provision in the CPG mandating that the parcel not be used for subsequent commercial and industrial development; this may help prevent bootstrapping, where a developer proposes a new use for the parcel based on the fact that it’s been in industrial energy production for some time.
7. Public education regarding archaeological, historic or environmental resources.
If the project implicates cultural or environmental resources like wetlands, consider asking the project developer to have their related consultants prepare informational or educational materials regarding that resource for display in the local library, town offices or school, or to create a public or school workshop. Some developers may welcome the chance to generate good public relations as well as contributing to local knowledge about Town cultural and environmental resources.
8. Contribution to land conservation efforts.
Consider asking the project developer to mitigate negative project impacts by contributing to land conservation efforts. This could involve buying a conservation easement for a buffer area around the project, or contributing to the Town purchase of parkland at another location to make up for the loss of open space. There can be room for creativity where the landowner of the parcel underlying the project may be able to take a tax credit for donating a conservation easement to the Town which can help offset the income from the lease or sale of the property to the developer.
9. Agreement that there will be no additional projects by this developer.
Solar projects have a troubling tendency to experience ‘mission creep’: a small one goes in, then another right next door, then another 50 yards away, then another by the same developer on the next parcel over. Consider requesting in MOU negotiations that the developer agree that there will be no further expansion of the proposed project, and no additional solar development by that developer (be sure to include all their related personnel, LLCs and other entities) within the Town.
10. Decommissioning and site restoration.
Decommissioning solar electric generation facilities is being given short shrift in most PSB solar proceedings. At present, there are no solar panel recycling facilities, and it is quite unclear how solar panels -- which contain a number of toxic and hazardous materials -- will be disposed of. Since most solar facilities are built and owned by single-purpose LLCs created to take advantage of tax breaks, it is also unclear who will even own the array by the time it reaches the end of its useful life or if panels malfunction. Request a clear, enforceable, and amply capitalized decommissioning fund along with strong guarantees that the site will be restored to its prior condition. Think about whether the construction access should be removed or remain in place. Consider requesting a provision in the CPG mandating that the parcel not be used for subsequent commercial and industrial development; this may help prevent bootstrapping, where a developer proposes a new use for the parcel based on the fact that it’s been in industrial energy production for some time.
Hill Attorney PLLC 802-989-6906 hillattorneypllc@gmail.com
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