Augusta Board of Supervisors further restricts where solar farms can locate
VERONA — Did the Augusta County Board of Supervisors just enact a "moratorium" on solar energy systems? Despite contention over the specific word, the supervisors did approve four ordinance changes, placing new restrictions on where solar energy systems can be built in the county.
The area of Augusta County in which a solar project application can be considered has been significantly reduced by the new restrictions, which include a ban on any solar project within two miles of another solar project and a ban on any solar projects in urban service area zoned parts of the county.
The four ordinances update ordinance sections 25-70.1 Solar Energy Definitions, 25-70.4 Small Energy Systems, 25-70.6 Large Energy Systems, and 25-70.8 Large Energy Systems Proximity. The changes include:
- A two-mile radius around every solar project that prohibits any other solar project.
- Prohibiting solar projects in specific districts: the general industrial zoning districts, urban service areas, and the community development areas listed in the current comprehensive plan.
- Making ‘small solar’ even smaller. Previously, projects under 50 acres were small-scale projects. Now a small-scale project must come in under 25.5 acres.
- Changing what counts as part of the solar farm. When dealing with solar energy systems, there are acre counts for the acres under solar panels, the fenced- in area required to be enclosed by the National Electric Code, the total acreage of the project. Applications have used different acreage numbers because which count should be used had not been specified. Now the fenced- in area is the standard.
- Changes to what’s inside the fenced-in area. The new definition includes stormwater management facilities as part of the fenced in area “whether or not said facility/facilities are located within an area required to be enclosed by the National Electric Code.”
The board passed each ordinance in a four to two vote, with Supervisor Gerald Garber recusing himself. Supervisors Pam Carter and Scott Seaton voted against all for ordinance changes. Upon request, the board included an amendment to exempt solar projects that submitted their applications before the ordinance changes.
The joint public hearing hosted 21 speakers, including several attorneys, folks with solar farms on their land, solar energy system company applicants, residents, and other interested parties, for over an hour of additional input on the four ordinances.
Wayne Ave Solar II LLC was approved, but would it be now?
Previously approved projects can serve as a lens to understand how the rule changes affect projects.
Wayne Solar II was approved by the Augusta County Board of Zoning Appeals (BZA) on Dec. 8.
The project is located immediately adjacent to an approved community scale solar facility. The application states county staff is “concerned that the sitting of two solar facilities this close to one another could be in conflict with [county] policy” and could potentially “result in undue adverse visual impacts on rural viewsheds for the neighborhood to the north.” The application process reviewed the site's visual buffers, spacing panels back from the road and planting trees to grow and block the view of the solar panels.
Despite the concern, staff recommended the BZA approve the project anyway, citing “the natural buffer of the railroad, the distance from the single-family neighborhood to the north, the topography of the land where the solar panels would be situated below the railroad, and the extent of the project being approximately six acres under panel.”
If the two-mile radius had been enacted before the application, the project would have been rejected.
Seaton moved to remove the two-mile radius from the rule changes, pointing to location restrictions currently in the solar ordinance.
"Are some of these things in the comprehensive plan, as far as clustering?" Seaton said. "Yes, they're already there."
Carter seconded the motion, but it was defeated on a four to two vote, with Seaton and Carter voting in favor.
The Planning Commission recommended denial for two ordinance changes
According to the BOS agenda, two of the ordinance changes were not recommended by the Planning Commission.
The two-mile radius prohibition is the reason for the denial recommendations.
“There was a lot of discussion about the two-mile radius and how there might be some sites that are possibly over a hill or something of that nature that would [make it] appropriate to site [a solar project] there … in close proximity,” Julia Hensley, Planner for Augusta County, told the BOS.
The rest of the changes were supported by the Planning Commission.
The appropriate work burden on staff is contested
“The slew of applications that we’ve received need a little more clarity and cohesiveness," Hensley also told the BOS. "That’s how we started this conversation and, over several months, came up with these ordinance amendments."
After questions from Seaton, County Administrator Timothy Fitzgerald noted the board approved drafting ordinance changes in October.
“This is not something that what just thrown at us,” said Wells. “We requested this information from the ordinance group. The question in our mind is ‘what can we do to help make their job easier?’ … That’s why I plan to approve these amendments tonight.”
However, when current applications came up later in the meeting, the tone of the discussion changed.
“Does that mean we only have five applications out there right now for solar?” Carter asked. “That’s it?”
“There are five applications that have been submitted to our office currently, yes ma’am … We currently have five that are approved, two of those are under construction,” said Doug Wolfe, director of community development for Augusta County.
Supervisor Caroline Bragg said that 15 projects were in various "stages" of preparation, such as having approached county offices but have not formally applied.
“So we’re creating a lot of fuss over five applications?” Seaton asked. “You made us believe we were being inundated by these projects.”
“That’s a lot of work for staff,” Bragg said. “We are getting inundated with projects.”
“Five is not an inundation,” Seaton said. “I’m sorry, but it’s not.”
What it takes to qualify as large scale was cut by over half
"We’ve had a lot of confusion in past applications about what the total acreage is that we’re dealing with," Hensley explained. "For clarity, we decided to use fenced-in area since that is the area that will be taken out of land use taxation.”
Wayne Solar II’s application shows the project will lease 35 acres, will contain 23 fenced-in acres, and six acres under panels. To determine the project size, the BZA used the six acres under panel. The rule changes would require the fenced-in area to be the project size reference. In this case, using the fenced-in acreage means the project is a 23-acre small-scale solar energy system, rather than a six-acre system.
Consider another hypothetical example of a solar farm with eight acres under panel and 29 acres fenced. The rule change would elevate the project from a small-scale solar energy system of eight acres under panel to a large-scale solar energy system with 29 acres fenced in. The change means the project's application would not be considered by the Board of Zoning Appeals but instead by the Board of Supervisors.
Seaton objected to this, explaining “the members of the BZA are appointed by a judge, they’re not appointed by a political body here. What this will effectively do is send any project that’s over 25 [acres] to [the board of supervisors] and politicize the decision-making process, rather than at the BZA. We debated this two or three years ago, debated it for a long, long, long time. The majority felt 50 acres was enough.”
Bragg disagreed, stating “when solar first came to Augusta County … as a locality we had to come up with our own guidelines. … As with any other policy process, there are always going to be tweaks and adjustments that need to be made as we gain the real-life experience of going through the approval processes."
Seaton introduced a motion to keep 50 fenced-in acres as the large-scale solar system cut off. Carter seconded the motion. The board rejected it four to two, with Seaton and Carter voting in favor.
Elm Spring Orchard demonstrates another project that would have been denied
prohibiting solar projects in the general industrial zoning districts, urban service areas, and the community development areas listed in the current comprehensive plan.
Although currently zoned for general agriculture, the Wayne solar project falls within an urban service area of the comprehensive plan, meaning the project would be rejected if it applied after Dec. 13.
Virginia Reynolds Badgett spoke during the public hearing, explaining how her family has operated Elm Spring Orchard for 89 years. According to the July BZA minutes, the project is a 25-acre system on the over 200-acre property located between Goose Creek Road and Jefferson Highway in the Wayne District. Consolidated Edison Development Inc. applied for the permit, which was approved by the BZA on a three-to-one vote.
She emphasized that the income from the farm “ensures that my family will continue to own the land and operate the farm for the future.”
“My family did not buy an orchard in an urban service district,” she said. “The county mapped [the district] over our farm. We have no interest in selling or developing our land. … Our neighbors do not want to see a subdivision at Elm Spring and neither does my family. … We want to keep it as a multiuse farm as it has been for decades. There’s a path to do this with small scale solar … The proposed changes to the solar ordinances strip away the rights of family farm owners to make the best decisions for their land in their circumstances.”
Seaton introduced an amendment to change the December 13, 2023, date to “the date that they acquired the land.” This would have allowed potential solar projects in the urban service area to move forward despite the new prohibition if the land was zoned for General Agriculture, General Business, or General Industrial when the land was acquired.
“That person knew they were buying urban service area when they bought that land,” Seaton explained. “But the people who bought the land before that should not be held to the urban service area. … They haven’t been compensated and we’re taking away their rights.”
The motion failed in a five to one vote, with only Seaton voting in favor.
Augusta Water is in support of all changes
During the Wayne Solar II BZA approval, an Augusta Water representative asked the BZA to consider Augusta Water’s infrastructure investments before making a decision. Phil Martin, Executive Director of Augusta Water, echoed this and took it further during the supervisors’ meeting.
“I am here to voice Augusta Water’s support for the changes to the solar ordinance,” said Martin. “Developing water sources can cost an excess of a million dollars. Building pump stations and water storage tanks can cost several million dollars. Building treatment plants can cost tens of millions of dollars. …. A reasonable expectation of future water and sewer customers is essential when taking on debt for our ratepayers to cover. ... We believe that the proposed revisions to the solar ordinances make it less likely funds already spent on water and sewer infrastructure will have been spent needlessly and will make it more likely that future decisions and expenditures will be prudently made.”
When asked further questions during the supervisors meeting, Martin noted the board specifically supported the urban service district prohibition and codifying of fenced-in area as a solar energy system’s measure of size.
“If you’re trying extend a waterline up through [an area], and you have one [site] here that’s not going to be using [the water system to capacity], and you have another one half a mile up that’s not going to be using it, another one a quarter of a mile up that’s not going to be using it, ... it makes it less economically feasible to extend [the line] to any of them,” Martin explained. “If it’s outside of the urban service area, … if those get approved, I think that will resolve the issue for us.”
However, he noted that he could not provide specific reasons for supporting each part of each ordinance change. For example, when asked by Seaton why the Augusta Water board would support the two-mile radius limit, Martin said the board “did not give me a specific reason for that.”
Public speakers raise legal issues
Jared Burden is an attorney serving as policy advisor to the Center for Infrastructure and Economic Development (CIED). According to the CIED website, his work focuses on solar infrastructure. Burden spoke during the public hearing.
“The CIED is of the strong opinion that numerical caps, density percentages, and radius restrictions, like the [two-mile] radius restriction you have before you, are ill-advised on a policy level and are perhaps, more importantly, suspect under Virginia state and constitutional law,” Burden said. “We believe boards should not tie their own hands … and address solar on a case-by-case basis.”
Burden explained, just as other attorneys did during public comment, that the ordinance changes as written could invite legal issues.
“It can be argued that under the Dillon rule … the state legislature has not delegated to counties the authority to choose, without much study or thought, a number like two ... and build that number into an ordinance-based prohibition of what otherwise might be a good use of the land," Burden said. "Another legal challenge point may be that by saying one solar facility in a two-mile radius, namely the one at the center of that circle, is okay to get a special use permit, while a materially similar solar facility that is … say 1.7 miles away, in the same [agriculture] district can’t even be reviewed. [This] means the two applicants with the same use in the same district have been treated disparately under the ordinance, which is not legal.”
Carter pointed to these potential issues before voting against the ordinance changes.
"It’s been pointed out that there are some potential policy and legal implications that are associated with these ordinances," said Carter. "I appreciate you bringing that up to us. I think everyone of us up here wants to get it right. ... We want to treat people equal, particularly when it comes to landowner’s rights. ... Why shouldn’t we wait and see and gather more concrete, scientific information than what we have right now, instead of voting on ‘I feel’ or ‘I think’? I’m against that methodology. ... Slow down and get it right."
Another lawyer, Karen Cohen with Gentry Locke Attorneys, asked the board to exempt any project that has applied before the rule changes were excepted from complying with the new changes. This request was the only change approved by the board while passing the amendments.
The Comprehensive Plan is being revised, so why not wait?
Many of the speakers called for the ordinance changes to come after the county finished updating its comprehensive plan. Carter also pointed to the comprehensive plan as a potential reason to delay any ordinance changes, saying the board approved $317,780 towards the plan’s revisions.
Chair Michael Shull explained that the ordinances are “not set in stone" and "it’s going to take 15 months to do the [comprehensive] plan. We cannot put a moratorium on taking any [ordinances] in until we see what the public input is. … I respect the farmers and making money in other projects, but we’re so focused on solar. … If there’s an overwhelming majority that wants solar at that time, then you kind of look at how do you set it up, then make the changes in it at that time. That’s my feelings on where we need to be.”
Is this a 'moratorium' on solar? Depends who you ask.
The word moratorium was not used in any of the ordinances, but the word was on the minds of several boardmembers.
“This sounds like we’re creating a moratorium, despite the amendments being legally questionable, knowing that no one will tie up their capital,” Seaton said just before a vote. "I have to ask why do we need these four amendments. I coudn't come up with a good reason," he said. "I don't think it'll benefit Augusta County at all. I don't think it'll make it easier to locate a business here."
After the second ordinance change was approved, Bragg pushed back against the word.
“I will add that there are, I think we counted three, counties that have a moratorium on solar projects. This is not a moratorium, what we’re doing.”
Wells agreed, stating “there’s nothing that tells me that if we pass these tonight that they’re going to be locked in concrete. … I tend to see these as temporary changes. I might not even be here to see the final product of the comprehensive plan. I don’t mean that I plan to pass away, but I’ve only got two years left on my term and I will not be here at the end of two years. In 10 years, 20 years, I can’t even fathom what solar will look like in Augusta County.”
Shull, however, used language similar to Seaton.
“I think this is a way to put the moratorium on it right now until we got through the comp plan … and get the input from the neighbors that live around it, and the farmers,” Shull said. “By doing this, it kind of puts it on hold to not taking any [solar applications] for the urban service and community development areas. That puts it on hold until we get the comp plan in. … It’s kind of hard for staff to decide [which can be approved] until we are able to get more of a handle on where [solar] can be and where it can’t be. We need to have more definition of where we’re at.”
Seaton remained skeptical the ordinances would be changed, saying “I walked a lot of houses during the campaign. We walked 2,140 houses. One of the most common things I heard from people, business owners and other people, was [about] the creation of ordinances that people can’t or won’t spend the money to overturn.”
This article originally appeared on Staunton News Leader: Supervisors further restrict solar farms in Augusta County
