The Patrick County Board of Supervisors heard presentations on solar at its November 20 meeting.
Christopher Dadack, of Guynn Waddell, P.C., which serves as the county attorney’s law firm, said the General Assembly has generally delegated the land use authority through zoning ordinances.
“So, typically the way I’ve seen utility-scale solar regulated is through zoning ordinances. Patrick County doesn’t have zoning, and that’s not highly unusual for rural counties. It does leave you less options on how to regulate solar development,” he said.
Dadack said a review is really the only meaningful way for Patrick County to regular solar development on its own.
There is also a siting agreement where a county can negotiate with a solar developer and put together an agreement as to how these fully-scale developments will progress.
“It can be very detailed in terms of the project itself, the financial terms involved, but that is a conversation, a negotiation if you will, in terms of them imposing approval or denial,” he said. “The 50.2-2232 review is the main opportunity the county has to unilaterally regulate utility-scale solar.”
Traditionally, Dadack said those types of reviews have been considered a big-picture view of a project because the reviews include the general and approximate locations of the features.
“Traditionally, the language will be broader and not as detailed as you may see in a zoning ordinance,” he said.
The board recently adopted and amended its Comprehensive Plan to incorporate a policy on siting development. Dadack said that is a best practice in terms of providing guidance for a review, “but traditionally speaking, that’s where review has not been as detailed as a zoning ordinance.
“Even if you compare the Comprehensive Plan and your policy, you’ll see it probably may be shorter than zoning ordinances in other counties,” he said.
Dadack said there are exemptions through the 50.2-2232 review, for example, the siting agreement.
“Should a county enter into a siting agreement approval after a public hearing, the code provides that that automatically satisfies the 2232 review. The statute also provides that if you have zoning and you allow a utility-scale by right, no such review is necessary. So, there are exemptions to a review,” he said.
Dadack said the contours of a review are not as well defined as a zoning ordinance. There are also a lot of case laws on zoning ordinances, with few for the 50.2-2232 review.
“So, the bounds of that review have not been fully tested as they have with the zoning ordinance,” he said.
Dadack said no matter what regulations a county has, a review, or a zoning ordinance, certain preemptions may occur in either federal law, federal regulations, state law, or state regulations.
Denise Stirewalt, of the Peter’s Creek District, asked if the board could potentially not vote for any solar company to come into the county, or if the state and federal government could mandate that it has to accept them.
Dadack said his best guess is two things would occur. One is there would be lobbying, but the greater risk is potential litigation.
“If you do an outright ban, which I think your question entails, that may prompt a lawsuit. That may be worthwhile for someone to litigate an outright ban,” he said. “There’s no specific case law on solar as it relates to that, so I can’t tell you the answer for sure, but I do anticipate probably litigation. Then if not, I know there’s already pushes to preempt some local authority to regulate solar.”
Regarding timelines to get everything set up, Dadack said unfortunately it’s out of the board’s hands to some extent because of the General Assembly.
“In some instances, already in a zoning ordinance, your powers to regulate solar are restricted to some areas. Not as much in utility-scale, but residential for example, there are specific statutes” you’re restricted in, he said.
For example, Dadack noted the board would be restricted in what it can regulate residentially for people who have solar panels on their roofs, and agriculturally if there is solar purely for the property or the adjoining parcels.
Stirewalt also asked if the county could have just solar zones without adopting any other zoning like residential or commercial zoning.
Dadack said that would be complicated, and will require more research.
Brandon Simmons, of the Dan River District, asked if the board wants to adopt one type of zoning, would it have to be across-the-board zoning.
“I don’t know if any of us want” to become a zoning locality, “but I don’t know, moving forward in the future, it may be what comes to protect us more,” he said.
For better or for worse, Dadack said zoning does give the county more tools to work with.
“Probably one of the biggest benefits I’ve seen for my clients is it provides a lot of guidance to your Planning Commissions, to your boards. They know what your priorities are, and they’re all spelled out. It gives guidance to” solar companies “as to what your requirements are, and they can decide if they’re interested in coming to this county or not,” he said.
Energix Senior Director of Development Dominika Sink also gave a presentation on the company’s project for Patrick County.
Energix is a global company that has operations in the U.S., Poland, and Israel, where its parent company is also located.
“The U.S. is our primary market, it’s our main growth market. We employ over 90 people in the U.S. We’ve invested over $1 billion in energy infrastructure, and we’re proud of that,” she said.
The company has an American-made policy, with the majority of its equipment coming from American manufacturers and companies, including solar panels, wiring, steel products, and any on-site components.
Sink said there are 10 operational projects in Virginia, with six currently under construction. There are two operational sites in Henry County, with two more starting construction in the upcoming weeks.
“We have projects in Wythe County, the city of Chesapeake, the town of Mount Jackson, and Prince William. So, coverage all over Virginia,” she said.
Approximately 300,000 homes will be powered by the energy produced by all its Virginia projects, Sink said, adding the Fairy Stone Solar project is located on Commerce Drive, and the proposed capacity for the Patrick County project is 12 megawatts, or approximately enough to power 2,000 homes.
“The project is located, the entire parcel associated with the project, is over 200 acres, but we’re going to be using a fraction of that. So, we’re right now anticipating using around 100 acres,” she said.
Currently, Sink said the land produces $6,000 annually in taxes.
“With the proposed project, that revenue will be over $40,000. That’s six times the (current) amount, and over the anticipated lifetime, the project will yield over $2.4 million. That’s approximately 40 years,” she said.
Sink said the company is voluntarily proposing several things for its siting agreement, which is being proposed to the board. Those same conditions were voluntarily presented in its comprehensive plan.
“The reason for that is, we understand there is no zoning,” she said. “We wanted to make sure that we provide some guardrails, some minimal guidelines, for us to follow so that you all know what project is coming to your community.”
One guideline is a minimal distance from nearby properties and roads, with a proposed 50-foot setback from property lines.
“We’re maintaining existing vegetation where it’s available and under areas where there is no existing vegetation, we’re going to be planting additional trees to provide for screening for the” nearby property owners “or folks traveling down Commerce Drive,” she said.
Sink said Energix has also spoken with one of the neighbors who is uniquely positioned where they will be exposed to the project.
“We met with them, we spoke with them, and we changed our plans. We increased the setback so there’s no real close residential dwelling to the project, and in their case, it’s over 1,000 feet that we’re able to move the project to accommodate” them, she said.
Sink said the project’s fencing will also be internal to the buffers and will be behind the vegetation.
“So, the neighbors or passersby will not see the metal fencing. They will see first the vegetation and then the fencing will be behind it. That fencing will be done in accordance with the National Electric Code,” she said.
According to the Comprehensive Plan review the project went through, Sink said it would have no impact to surface or groundwater and is outside of flood zones. The project is also already in an area where there’s existing industrial development, with the Transfer Station and Patrick County Sheriff’s Office nearby.
“This is a location where there already is some commercial/industrial use,” she said. “The project will produce no noise, odor, pollution, or any long-term increased traffic. The only traffic will be experienced during construction and decommissioning.”
Sink said the land will also be leased from the current landowners for a period of time. The landowner will maintain the ownership of the property.
“After that lease expires, we will either have the option to renegotiate with the landowner, and if the landowner does not want to pursue that any further, then we will decommission, remove the project, and in that case, the landowner can pursue any other type of development,” she said.
Sink said Energix will work with the Department of Environmental Quality (DEQ) on a permit called the Permit By Rule (PBR), which requires the company to go through extensive field surveys to work on finding any cultural resources, historical resources, threatened or endangered species, and then consult with other departments like the Department of Conservation, Department of Historic Resources, and the Department of Wildlife.
Sink added that Energix is not legally allowed to control the flow of water from before the proposed solar project.
“We show the finding, and we try to make sure we don’t impact any resources. Once that is done, we’ve spoken to the agencies and they don’t have any concerns, we are granted” the PBR, she said.
In addition to the comprehensive plan, Sink said Energix has proposed a siting agreement that provides protection for a lot of the items discussed and clarifies the minimal requirements of the project.
“We also wanted to participate and contribute to the community. We hope we can support the county’s budget with a voluntary additional payment of $100,000. That would be when the project starts construction,” she said.
“It’s a shame that there’s a lot of misinformation out there,” Sink said, adding that the solar technology used for the project would be developed by First Solar, Inc., an American manufacturer of solar panels.
“This is a technology that is protected by patents. Of the top 10 manufacturers, only one American company, the rest are Chinese. So, this is an American manufacturing success story,” Sink said. “In business for over 25 years, 250 million panels installed. It’s installed by government institutions, schools, and Oceana Naval Air Station uses this technology.”
Sink said Energix has used this technology for years as it is tried and tested and is the higher quality equipment.
“There are over 50 researchers worldwide that have tested this technology, and that’s from universities to federal laboratories,” she said.
Sink also quoted a March 2019 study from Virginia Polytechnic Institute and State University’s Virginia Center for Coal and Energy Research, which found “the panels pose little to no risk under normal operating conditions and foreseeable accidents such as fire, breakage, and extreme weather events like tornadoes and hurricanes.
“This is the same conclusion that consistently adheres across all the 50 researchers,” she said, adding that the solar panels also pass the U.S. Environmental Protection Agency’s (EPA) toxicity leaching procedure testing, the test Toxicity Characteristic Leaching Procedure (TCLP).
“Which essentially means it does not leach, it is fairly classified as nonhazardous material. It is a piece of electronics, so of course it is not for consumption, but for it to be out in the field, operational,” she said. “It absolutely doesn’t pose any risk to the environment or human health.”
