Brattleboro settles solar suit

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BRATTLEBORO — Ending its legal battle with NextSun Energy, the town is now entering into a net-metering agreement with a different solar company.

Brattleboro will join other local municipalities and school districts in purchasing net-metering credits from Sky Solar, which are tied to a solar array being planned for the Windham Solid Waste Management District's closed and capped landfill.

On Tuesday, the Select Board decided to dismiss a lawsuit against NextSun.

"We brought a suit to reinstate the contract that had been unilaterally terminated by NextSun and NextSun then moved to dismiss that complaint in court last summer," Town Attorney Bob Fisher said at the meeting. "We opposed that motion to dismiss and the court found in our favor so the case could proceed if we wanted to."

NextSun would be willing to walk away from the litigation if the town was, Fisher told the board, then the town could move forward with the new agreement. That would also allow for the return to the town of about $33,000 from an escrow account. The money was enough to cover the figure NextSun claimed it was owed by the town.

In April 2013, the town entered into an agreement with Green Lantern, which was later sold to NextSun. When the town was billed by NextSun, the price came into question.

"We paid the amount the way the town interpreted the contract and set aside the difference, just so that if indeed a court found in their favor, we'd have the money which to pay," said Fisher.

Town Manager Peter Elwell told the board the town's three biggest electric accounts — there are about 20 accounts that cover facilities throughout the town — would now be freed up to take advantage of the agreement offered through the landfill project. Fifteen smaller accounts can also be connected to the net-metering credits, which are purchased at a discounted rate then applied to power bills.

The town expects to save about $85,000 a year once the solar array is up and running. An application has been submitted to the Vermont Public Service Board. If all goes well, construction could begin this summer.

Another benefit to the town is revenue, as the landfill is located on Old Ferry Road in Brattleboro. Elwell estimated the array, when finished, would bring in about $60,000 annually in property taxes. Windham Solid Waste is anticipating about $100,000 a year in lease payments made to the district.

"It has a better chance of going forward if we participate in the project," Elwell told the board. "We'd be a large off-taker."

Board Chairman David Gartenstein said hundreds of hours have been spent by town administration, Fisher and the board, dealing with net-metering agreements.

"Such that I'm not convinced at this time that the town of Brattleboro has saved any money over the course of the last four years when you balance out what we had to spend in order to get the money off the net-metering credits," Gartenstein said. "Based upon all the complicating factors, I was very skeptical about entering into another agreement. But I've come around and I'm in favor of entering into this new contract right now because I think we are at a much higher level of sophistication than we were before in negotiating. I think we've taken steps to try to protect the town's interests better in this agreement."

Gartenstein called for the board to be more aware in the future.

"I think the town needs to be very wary about getting sucked into complicating litigation moving forward and needs to be prepared to walk away instead of fighting it to the extent that it becomes a problem later on," he said.

The board voted unanimously to dismiss the lawsuit and enter the new agreement.

Reach staff writer Chris Mays at 802-254-2311, ext. 273, or @CMaysBR.

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