Derby wind: Attorney apologizes, asks for no delays 

DERBY – An attorney for the Derby Line Wind Project admits that some abutting landowners did not receive proper notification as required by state utility regulators.

Leslie Cadwell of Gravel & Shea has apologized by letter to the property owners who found the error – John and Sherry Wagner of Holland, and to state utility regulators on the Vermont Public Service Board. She accepted responsibility on behalf of her client, Encore Redevelopment.

Cadwell said a person at her law firm left out some names on the official notification list by accident. She said it was her fault and said Encore should not receive any blame.

“I deeply regret the error, and I apologize to the board and to the parties for my oversight,” Cadwell said Monday in a letter to the board’s clerk.

She urged the board’s hearing officer to allow these neighbors to participate in hearings.

But she pointed out that the lack of notification about pending hearings on energy projects did not violate any laws and said that the process should not be delayed as a result.

Hearing officer John Cotter has already told Encore that they should have notified abutting landowners in nearby Stanstead, Quebec. Cotter did not indicate if they would be able to get into the hearing process late in the game. The town of Stanstead has applied to participate in the hearings.

Experts with the state are already interviewing Encore experts about the project. Deadlines on various parts of the quasi-judicial process are looming.

A delay in the hearings could slow or kill the project. One of the two proposed turbines on Derby farms must be operating by the end of the year under special state rules created for some small renewable projects. And both need to be online this year so the developer can earn federal production tax credits which expire by the end of the year.

“The Wagners are correct in their assertion that they were omitted from the adjoining landowner service list at the time this petition was filed,” Cadwell wrote to the PSB clerk.

“I sincerely apologize for the error. However, the error does not arise to any substantive impact enough to warrant the Wagners’ request that this board stop all proceedings.”

She said the Wagners are more than one mile from the turbine proposed for the Smugglers Hill Farm near Holland and are outside of the impact zone for shadow flicker, noise and other impacts. Board rules do not intend for errors like this to hurt petitioners like Encore Redevelopment, Cadwell said.

The lack of notification came to light when the Wagners told Chad Farrell of Encore, at a meeting in Holland last month, that they did not receive notification that Encore has applied for certification for two industrial-sized wind turbines in nearby Derby.

John Wagner said they would sue over it.

The Wagners wrote to the Public Service Board soon afterward, saying they knew that a turbine was slated for the Davis farm in Derby but not on the Chase farm closer to Holland.

They said their due process rights were violated, and that they didn’t have time to respond to the project. The deadline to seek to be a party in the hearings passed more than a month ago.

“It is also our opinion that Encore may have misled the PSB by stating that they did adequately notify neighboring property owners, when in fact they did not,” the Wagners said.

They listed concerns such as health impacts from noise and shadow flicker, property impacts and lack of information. They demanded a stop to the hearings until all neighbors were notified properly, they got a copy of all documents filed since Encore applied for certification in December, and extra time to prepare a response to the project.

Cadwell wrote to the Wagners and thanked them for bringing attention to the oversight.

“My error should in no way be taken as a lack of good faith on the part of Encore,” she wrote.

She sought to allay their fears about health impacts.

Cadwell also wrote a general notification letter to the Wagners and 14 other abutting residents, some of whom had already spoken out about the project at recent hearings and meetings. She described the project, said it would have limited impacts and said any damage caused by blasting, if needed, would be repaired at Encore’s expense.

Cadwell told the PSB clerk that the project has been well publicized by legal notices and local news coverage. She also said that abutters are not guaranteed notification as a statutory or constitutional right.

“No defect in the provision of notice to adjoining property owners under this rule shall invalidate an action by the board on a petition for a certificate of public good,” Cadwell wrote, citing state statutes.

The statute allows the board to act within the public good on a project despite errors like this, she said.