Solar Suits: This Battle In Bennington Touched Off A Tangled Web Of Litigation
Thomas Melone’s solar projects planned for the Apple Hill neighborhood in Bennington have so far generated more litigation than electrons.
The New York-based lawyer and businessman has pursued a pair of projects through the regulatory process and into state and federal courts. Along the way, he’s sued local citizens, the town of Bennington, state regulators — even Gov. Phil Scott.
It’s part of a pattern of aggressive litigation that seems to characterize Melone’s work.
Vermont's solar power industry has seen a 20-fold increase in less than a decade, and now accounts for 11% of the state's energy needs. For the most part, the build-out has met with little controversy. Not so in Bennington.
In Apple Hill, Melone’s plan to clearcut much of a 27-acre forest to construct two projects totaling 4 megawatts has encountered fierce local opposition.
As he’s pushed his various projects, Melone – a lawyer who represents his own companies – frequently turns to the court system. He’s filed at least ten appeals to the state Supreme Court. Last year, Melone sued a critic who lambasted him on social media for defamation and interference with his projects. He's sued state regulators alleging, among other claims, that the regulators conspired with project opponents to block his development. He started work on the Apple Hill development last summer without regulatory approval – and then challenged the state’s stop work order all the way to the Supreme Court.
"I went through pretty much 20 years before I got into the energy area without too much controversy in terms of legal issues. But then in the energy area, it seems like everyone sues everybody else." - Thomas Melone, lawyer and solar developer
Melone said all this litigation is just part of the business.
“You know, I went through pretty much 20 years before I got into the energy area without too much controversy in terms of legal issues,” he said. “But then in the energy area, it seems like everyone sues everybody else.”
But that’s not how those who’ve faced him in court or at the Public Utility Commission see it. Attorney Brooke Dingledine – a frequent legal adversary – says Melone tries to use lawsuits to crush his opponents.
“It's scorched earth; it is retribution. It is, 'I will sue you until you have no money left. If you can’t afford a lawyer, good,'” she said.
Dingledine made those comments outside the state Supreme Court last year, after yet another Melone appeal. She represents Libby Harris, an Apple Hill resident who fought Melone’s developments planned near her home.
“And some of the claims made in this case are astonishing,” she said. “And I just don’t understand why these folks feel it necessary to become a bully and try to harm … a woman who is just standing up for her own rights.”
Dingledine’s not alone in her opinion. The Department of Public Service, which represents the public in energy and utility issues, also characterized Melone’s tactics as “scorched earth” in a legal brief filed during one of the state’s many rounds with Melone.
Burlington lawyer Justin Barnard defended Bennington homeowners when Melone sued them in a dispute over a right of way for his solar project. Barnard said he represents solar developers as well.
“I’ve represented them in litigation, sometimes with neighbors. I’m a big proponent of renewable energy,” he said. "But the tactics that Tom Melone has employed, at least in the case I’ve been involved in, are counter-productive, and give renewable energy in Vermont a bad name.”
Barnard said Melone goes too far with his litigation.
“I don't think there's any question that in suing the neighborhood association and individual homeowners in Bennington who were adjacent to his property there, his intent was to cow them and get them to back off from engaging in the public process,” he said.
Melone is a soft-spoken guy who sounds more like a professor than a legal flamethrower. He's a former IRS agent who later, as a lawyer, began financing and developing renewable energy around the country.
He's also had some success in Vermont. He completed a separate solar project in Bennington and one in Sudbury. Other projects in Rutland are under review by regulators.
Melone said his legal challenges are all in pursuit of a greater good – fighting climate change.
“I just wanted to do something that was worthwhile, from a social perspective,” he said. “And greenhouse gases, you know, are destroying the planet.”
Melone said his suit against the homeowners dealt with a real dispute over access to property and was not an intimidation tactic. He said they threatened to sue him first.
“So from my perspective, I said, ‘Alright, well you’re saying you’re going to sue us. Why don’t we just get this resolved now?’” he said.
Debate over a changing regulatory environment
Vermont, Melone said, was once supportive of projects like his. But he says that the state and local opponents have thwarted needed new solar generation.
Melone’s history in Vermont does, in part, track the arc of the state’s relationship with solar development. A decade ago, regulators and lawmakers worked to jump start the industry with programs that paid above-market rates for electricity generated by qualified projects. Now, regulators have raised concerns about consumers paying those higher rates.
Melone said he’s been the victim of both political interference and the changing regulatory environment.
“When we first went up to Vermont to look at developing solar projects, Vermont had projects right on the side of the road, [in] plain view, and you think, well, ‘This is a friendly place to develop solar,’” he said.
"He [Melone] was trying to take as full advantage of our generous standard offer rates by essentially taking a large project and cutting it into a couple of pieces, so that it would qualify under the megawatt limit. And we turned him down on that basis and he was frustrated by that." - James Volz, former Public Utility Commission chair
Melone said that changed for him when local opposition began building to the Apple Hill project. In a federal lawsuit against members of the Public Utility Commission and Gov. Phil Scott, Melone charged that lawmakers conspired with project opponents to pressure regulators to reject the development.
A judge recently dismissed the case.
Former PUC chair James Volz said there was clearly no conspiracy to block the projects
“I totally reject that. The only communications we had with anybody about his projects were the comments filed publicly,” he said.
Volz recalled that Melone wanted the project to qualify for high rates, under a program designed to get renewable energy off the ground. But at 4 megawatts, it was too big for the program, so he filed it as two separate developments.
“He was trying to take as full advantage of our generous standard offer rates by essentially taking a large project and cutting it into a couple of pieces so that it would qualify under the megawatt limit,” Volz said. “And we turned him down on that basis and he was frustrated by that.”
A history of litigation
Melone has also been involved in litigation in several other states.
In Connecticut, he sued regulators four times over its solar subsidy program. In Massachusetts, he fought against the massive Cape Wind project, arguing that the wind turbines would impede the view from his vacation home, and that debris from turbines damaged by storms would wash up on his beach.
Melone defended his actions. He says offshore wind turbines could get destroyed by hurricanes and that solar – his business – is a much safer and more cost effective way to generate renewable electricity.
“I guess the biggest problem of pursuing off-shore wind, under the circumstances that they are, is that it prevents at least in my view, what you should be doing, which is building distributed solar all throughout the region,” he said.
In Bennington, Melone's solar development would involve clearcutting a forest, which upsets neighbors like Libby Harris. She said she’s feeling the strain of six years of litigation.
“It gives me a feeling of despair, that this will never end, and that I’ll be dead before this is over,” she said.
"It gives me a feeling of despair, that this will never end, and that I'll be dead before this is over." - Libby Harris, Bennington homeowner
Harris has faced off against Thomas Melone numerous times, but she said they’ve never actually had a conversation.
“Well, let’s say that I’ve been at hearings with him, many hearings with him. I don’t think I’ve ever talked with him,” she said.
Their method of communication these days seems to be lawsuits and counter-suits. In court papers, Harris alleges that Melone has used his aggressive litigation to try to get her to drop her opposition.
“So this has been an unrelenting attack on me to force me into finally saying 'uncle,'” she said. “And you know, I don’t know, I come from a tough family and we stand up to wrong.”
A retired New York City high school teacher, Harris has fought Melone’s development in Bennington since 2015. She traces her willingness to stand up to a well-heeled developer to her family history. Her grandfather was a union organizer and her father, a baker, was also heavily involved in New York City unions.
“And it was like a religion to us, that you just do it, that you stand up for the little guy, and what is right,” she said.
A worthy adversary
Although they have vastly different backgrounds, Melone and Harris seem matched in their tenacity,
Melone is an experienced energy developer who handles his own legal cases. Harris had never been involved in energy issues until she challenged Melone’s project in Bennington at the Public Utility Commission.
Harris got involved when one of Melone’s companies filed an application to build solar arrays next to her Apple Hill neighborhood. She said members of her homeowners association decided to settle with Melone. But she decided not to because she was still concerned about truck traffic during construction and the impacts on the aesthetics and character of the area. She was also concerned that clearcutting the trees would remove a valued sound buffer between her home and busy Route 7.
“I’ve seen over the course of my long life – I was 76 yesterday – that most people just cave, like the Apple Hill Association, just caved,” Harris said during an interview last month.
Thomas Melone is a self-made millionaire who found a lucrative niche in renewable energy. He said he worked his way through college and law school, becoming the first in his family to get higher education. After leaving the IRS, he worked for New York City law firms and then joined an investment bank, where he put together financing deals for assets like airplanes and rail cars.
In 2005 the investment firm started financing renewable energy projects, and in 2011 Melone decided to go out on his own.
"It's scorched earth; it is retribution. It is, 'I will sue you until you have no money left. If you can't afford a lawyer, good.'" - Brooke Dingledine, lawyer
“My professional expertise was in financing projects, and how to get projects built, and we just decided to build projects on their own, and make small contributions here or there,” he said.
Those contributions, Melone said, include reducing greenhouse gases to combat climate change. That issue, he says, is what motivates his life’s work.
“So I mean, I could have retired in 2012 or whenever we started this, but I wanted to do something that would be making a meaningful contribution to society,” he said. “So that’s when I started to focus on building clean energy projects, trying to engage in challenging state policies.”
He's challenged state policies in California, Connecticut and Vermont. Melone said he has been treated unfairly in Vermont, including by the PUC, and that he simply fights for his rights.
“It really fell apart in 2016 when they basically — we feel — targeted us because the PUC was under political pressure to make it seem like they wouldn’t approve every solar project,” he said.
A question of footprint
Although he’s sued Harris, Melone seems less focused on the retired teacher than he is on her main ally, environmental activist Annette Smith.
Smith, the executive director of Vermonters for a Clean Environment, helped Harris prepare for PUC hearings and works closely with attorney Brooke Dingledine, who represents Harris for free. As part of her research, Smith looked into Melone’s real estate holdings, which include multi-million dollar homes in Florida, New Jersey and Massachusetts.
Melone said Smith is obsessed with him. He’s tried to subpoena her in the federal defamation lawsuit he brought against the social media critic.
“It certainly is distressful for me and my family for her to be telling everyone where we live. She’s obsessed with how big our homes are, what their value is,” he said.
Smith said it’s important for regulators and the public to know Melone’s own, sizeable greenhouse gas footprint, given his claims that his projects will reduce global warming. She's responded by asking the court to quash the subpoena.
“I am pointing out that he, as a very affluent person, has a responsibility to the planet too, in his consumption,” she said. “But that’s not stalking; that’s being honest about the impacts we all have on this earth.”
Smith alerted the state last summer when Melone started clearing land near Harris's home without permission. Melone said the land clearing was actually for a hemp and sheep farm, although he’s continued to try to get state approval for solar arrays. The Public Utility Commission and later the Supreme Court upheld the stop-work order. The Supreme Court has also affirmed the PUC's denial of the project.
Melone now also wants to build a barn to process hemp adjacent to Harris’ property. The building would be 165-feet long, 30-feet high but just 16-feet deep, almost like a wall.
“And now he wants to put up this huge barn to block her view,” Smith said. “How much of more of an attack can he make on a neighbor who has simply been exercising her rights to have a say in the regulatory process?”
Melone said he wants to develop the property somehow, and that he’s not building the barn or clearing the land to get back at Harris.
"This has been an unrelenting attack on me to force me into finally saying 'uncle'... I come from a tough family and we stand up to wrong." - Libby Harris, Bennington homeowner
Libby Harris said she’d like some kind of final judgment that would at last stop all the legal appeals and lawsuits.
“That’s what I’ve been hoping will happen, that with all the ins and outs and all the different courts, all the lawsuits that are around, that whatever it takes to make it final, it’s ‘You can no longer come back here. You’re done,’” she said.
That may not happen anytime soon. Just last month, Melone filed a motion to reargue the Bennington solar case before the Vermont Supreme Court.
Harris promised to keep fighting against Melone’s plans. It’s all part of her upbringing, she said.
“It’s sort of like if Tom Melone wanted to pick the wrong person to attack,” she said. “My whole life has been about this.”
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