Legal Update July 13, 2021
JCV vs. CITY OF RANSON (REZONING CASE) Summary — On...
UPDATE: September 1, 2021
Several Jefferson County residents filed a lawsuit against the County and Planning Commissions regarding the illegal approval of a zoning ordinance allowing solar energy facilities. They WON, invalidating the Commissioners amendment. In response, added to the JCC agenda for 9:30 AM on September 2nd, is discussion of legal issues regarding solar and a “potential amendment of [the] Comprehensive Plan to include provisions for solar facilities.” It looks like the Commissioners are trying to move the goal post and amend the Comprehensive Plan to circumvent the ruling of the Court.
UPDATE: April 12, 2021
On April 12th, The Jefferson County Commission ignored the vast majority of the public input they received, immediately granted the wishes of a developer and approved the Solar Zoning Ordinance Amendment with a few changes, none for the better. This amendment allows Solar Energy Wholesale Generator facilities to be installed as a Principal Permitted Use on over 80% of Jefferson County’s land surface. The setback from adjoining property lines was reduced from 100 feet to only 50 feet, with vegetation as a buffer. Also decided was that no decommissioning or bonding agreements need to be in effect at this time, which is a complete reversal of the Commission’s stance from last October. The vote to approve was 3 to 1, with Commissioner Jane Tabb voting against and Commissioner Stolipher recusing himself due to possible conflicts of interest.
Josh Compton’s first motion to approve the amendment was halted, following Commissioner Hudson’s suggestion that maybe they should hear from Legal Counsel first. After the executive session, Compton revised his motion to approve. This Commission got around W.Va. Code that zoning must be consistent with the comprehensive plan by declaring that, “there had been major changes of an economic, physical or social nature which were not anticipated when the comprehensive plan was adopted and those changes have significantly altered the basic characteristics of the area.” No identification of what changed was given.
In addition to ignoring the citizen comments calling for Conditional Use approval of each project versus Principal Permitted Use, Compton accused them of, “being against everything and wanting to delay and delay.”
The Amendment is to go into effect immediately on April 13. One might wonder, why the rush to put the ordinance into effect? A lawsuit had been filed against the Planning Commission’s earlier advancement of the Ordinance with a court date set for the 14th. It seems obvious why they hurried the motion.
What happened is, sadly, not an aberration in our local government, but proof the elections have consequences and the vigilance of the citizens must be constant. Supporting JCV is one way to help, but every citizen has to be involved to have good government.
UPDATE: March 9, 2021
Jefferson County Vision formally intervened on the Wild Hill Solar EWG and an evidentiary hearing was held on January 29, 2021. On February 11, 2021 the PSC awarded the site certificate to Wild Hill with several conditions. The ruling can be acquired here: http://www.psc.state.wv.us/scripts/WebDocket/ViewDocument.cfm?CaseActivityID=560640&NotType=%27WebDocket%27
At the local level the Jefferson County Planning Commission voted to approve the solar amendment on March 9, 2021, stating that it was consistent with the Comprehensive Plan.
The approved amendment regarding permitted use was the same as originally proposed by the Jefferson County Commissioners (JCC), which was challenged in the courts. At the time of the court challenge Jefferson County Commissioners vacated the amendment presumably for legal reasons. The Planning Commissioners’ approved amendment now returns to the JCC for review and action. JCV will provide updates as they become available.
On March 9th, the Jefferson County Planning Commission (PC) voted that the solar energy facility amendment as previously proposed was consistent with the Comprehensive Plan and will advance the recommendation to the JCC. Before the vote, Nathan Cochran, the county attorney, immediately recommended that the PC go into Executive Session to receive legal advice on the potential for litigation and “some issues.” Mr. Cochran provided the PC findings of fact and conclusions of law, which they accepted to support the decision.
Very little public discussion occurred, other than a statement by President Mike Shepp as to what influenced the decision. The statement was to the effect that solar facilities allowed as a permitted use is consistent with the Comprehensive Plan adopted in 2015 to the extent that circumstances have changed due to economic, physical and social situations that were not anticipated, and these have substantially altered the area.
In effect, the PC approved the same amendment that the County Commission (JCC) had vacated and returned to the PC for further review and consideration. The amendment will now be sent to the JCC for its review and action. Stay tuned for further developments.
UPDATE: February 23, 2021
On February 23rd, the Jefferson County Planning Commission held a Special Meeting on the Zoning Amendment Proposal to allow Solar Energy Facilities in Jefferson County.
The special meeting opened with the reading of the solar facility text amendment, the only item on the agenda. Before discussion, Counsel Nathan Cochran, recommended the PC enter executive session to receive advice on potential legal issues surrounding the zoning ordinance.
After the 20-minute session, several components of the text amendment were reviewed between Commissioners and staff, including:
The buffer screen, either a vegetative or opaque fence, placed between the facility and any residences, churches or historical resources, etc., within a 200’ radius and how it corresponds to the 100’ setback from property lines.
A decommissioning plan including surety – to return a site to its original condition covering any cost associated with removing panels and accessories – is a requirement that is still being drafted. This agreement is the responsibility of the Jefferson County Commission (JCC) and Counsel informed members he anticipates the document will be provided to the JCC and visible to the public before the JCC would reach a decision on the amendment.
Still unresolved, was the question of compatibility with the 2014 Comprehensive Plan. In its proposed form, the ordinance allows for facilities as a principal permitted land use vs. a conditional use process. The meeting was adjourned following a motion by President Mike Shepp, and seconded by Jack Hefestay, for a legal evaluation to be received before the amendment is further considered.
Beforehand, a public hearing was held by the Planning Commission on February 9th to reevaluate the zoning amendment proposal to allow Solar Energy Facilities in Jefferson County. This action was taken after the County Commission reversed its previous approval and advised the PC to further review the recommendation.. The hearing had a great turnout with sixty participants and nineteen people who gave comments.
The predominant request of most speakers was for the specification of a Conditional Use process to review each solar project opposed to the permitted land use throughout 80% of the County. Support was expressed for careful consideration of project size and standards if renewable energy expands, helping diversify local agricultural operations and create job opportunities.
After 45 minutes of public comments, the Commission entered into executive session for 45 minutes at the advice of Legal Counsel to assess the matter and potential for litigation. Upon return to the meeting, without further debate, a motion was made to postpone action on the amendment until a February 23rd Special Meeting while the Commission considered the “well thought and well-intentioned comments from the public.”
CLEAN ENERGY VS CLEAN GOVERNMENT
Jefferson County Vision previously provided a notice of the first application before the Public Service Commission to site a solar energy facility in Jefferson County. Our mission is to fight for a clean environment and transparent government. We see the proposed installation of a Solar Exempt Wholesale Generator (EWG) here as a conflict between these two goals. This information is provided to explain what an EWG is, our position on the installation of facilities in Jefferson County, and recommendations of what citizens can do.
DEFINITION: A Solar EWG facility – as determined by the Federal Energy Regulatory Commission – generates electricity solely through solar photovoltaic or other solar methods, includes only interconnecting transmission lines and is not owned by a utility. The term “exempt” in the designation refers to exemptions from the Public Utility Holding Company Act of 2005. The statutory definition of an EWG requires that an EWG be exclusively in the business of owning or operating, or both owning and operating, all or part of one or more eligible facilities and selling electric energy at wholesale.
The first EWG application, recently approved by the Public Service Commission, is Wild Hill (CASE Number 20-0845-E-SCS-PW, www.psc.state.wv.us.) A virtual public comment hearing was held on January 28, 2021. This one installation involves 795 acres and is located between Kabletown Road and Route 340, adjacent to the Cloverdale Heights subdivision. There are several more EWGs in the pipeline for Jefferson County. With the recent recommendation of Zoning Amendment ZTA19-03, EWGs would be allowed “by right” on up to 80 percent of the land in Jefferson County.
Wild Hill Project Site Location
OUR POSITION: JCV supports renewable energy. While renewable energy, whether by solar, wind or other methods is not perfect, we believe it is better for our environment than using fossil fuels. In addition, renewable energy can be an economic boon as more companies demand access to renewable energy. However, we do not support our county’s farmland being turned into solar industrial installations that provide limited benefits to the local community. These installations are not “solar farms” but large-scale power generation facilities. Unlike public utilities, EWGs have no consumers, and all electricity generated would be for wholesale, most likely to out of state entities. We support reasonable development of EWGs that take into account the opinions and concerns of the citizens that will be having them as neighbors. Recent changes to our zoning ordinances have paved the way for what amounts to being another extractive industry to be established in West Virginia with virtually no local control that could turn thousands of acres of prime farmland into utility sites. How we lost local control is an example of good intentions waylaid by bad government.
HOW WE GOT HERE: In December of 2019, a landowner came to the Jefferson County Planning Commission with a request for a Conditional Use Zoning change in the rural district. This meant that he was requesting a zoning change so solar facilities could be installed on his farmland. The request was taken into a private working group away from attendees and came out 5 months later recommended for “permitted use” of solar energy facilities. This meant that large-scale solar utility installations would be allowed “by right” on about 80 percent of all property in Jefferson County. This alarmed many citizens, not just JCV, and the Jefferson County Commission (JCC) had concerns as well.
This summer the JCC held workshops and a hearing where every person that spoke, including JCV, supported solar energy, but not all supported the permitted use. On October 1, 2020 the JCC approved the zoning amendment. Early in November, Wild Hill Solar, LLC applied for a solar siting certificate with the Public Service Commission (PSC). The advertisement for Wild Hill was printed on November 18, two days after the revised zoning ordinance was supposed to have gone into effect.
However, on November 12 a group of citizens filed suit against the JCC’s passing of the zoning amendment and received a temporary restraining order (TRO) against the amendment. The TRO was extended until a continuation hearing that was held by Circuit Court Judge, The Honorable Debra McLaughlin on December 15.
On the 10th of December a settlement was reached in this case and the Jefferson County Commission vacated their approval of the zoning amendment and returned it to the Jefferson County Planning Commission. JCV applauds the action these citizens took on behalf of all of us. At the January 12, 2021 meeting (agenda packet, including the December 10th JCC action) the Planning Commission voted to schedule a Public Hearing on February 9, 2021 to receive public input on the draft text amendment ZTA19-03.
And who is Wild Hill?
Wild Hill Solar, LLC is a Delaware corporation that was registered in WV in May of 2020. It’s primary address is in San Diego CA. Wild Hill is indirectly owned by EDF Renewables, which is in turn owned by a French company that is largely owned by the French Government. It is evident that profits from the EWG will not stay in West Virginia. While the total cost of the project is estimated at $125M, WV’s electric utility is a fully regulated industry and without Power Purchase Agreements, residents will be unable to directly benefit or contract for use of power. Operation of the facility after 1-year of construction will only require around four employees.
Wild Hill Project Site Plan
WHAT YOU CAN DO: There are still unanswered questions concerning the proposed installation and thus JCV recommends the following actions:
Examine the amendment. You can review a copy of the draft amendment to the zoning ordinance, which includes the proposed revisions to the Stormwater Management Ordinance, here.
Stormwater revisions require 1) vegetal cover restoration without chemical fertilization; 2) panel modules situated on mild slopes allowing the passage of runoff underneath; and 3) an erosion and sediment control plan.
Write the Jefferson County Commission. The Planning Commissioners approved amendment now returns to the JCC for review and action. If you have any questions, email info@jeffersoncountywv.org.
Familiarize yourself with the scope of the Wild Hill application at: http://www.psc.state.wv.us/WebDocket/default.htm
-Search by the Case Number 20-0845-E-SCS-PW ; Choose Activities to view associated documentation. The full site application is the third document from the bottom and is a very large file.
Jefferson County Vision’s petition to intervene was accepted by the PSC and a virtual evidentiary hearing was held on January 29, 2021. JCV took the step of intervening because it is only through intervention that evidence may be discovered and presented to the PSC for formal review. We thank all those who exercised their rights by submitting comments.
Recommendations that were included in comments to the PSC:
-PSC rules require that a formal hearing be held unless waived, not waived unless protest is substantial;
-PSC should not have ignored the opinions of Staff in waiving solar siting rule requirements of transmission line support drawings in the application;
-The information in the advertisement was unclear and unreadable;
-This facility serves little benefit to the people of Jefferson County and an unknown amount of tax income. The economic impact study is severely flawed in many ways. (pg 92-104);
-The permitted use of solar facilities zoning for the rural land was under litigation; required local permits may not be forthcoming;
-Affidavit of Emily Dalager (EDF Project development Manager) has an incorrect date for start of operations and her timeline for construction contradicts the plan of Environmental Consultants Potesta & Associates in removal of trees;
-There is no proof that Wild Hill has provided information to adjacent landowners as noted by the State Historical Program Officer (pg 30-31 of the application) This notification should be done before the requested hearing to allow for those citizens most affected to be aware of what is occurring in their backyard.
Zoning and Land Development Amendment
Background
Ordinance #ZTA19-03 to allow solar energy facilities consisting of photovoltaic panel technology to process as a principal permitted land use was proposed by the Jefferson County Planning Commission to the Jefferson County Commission (JCC).
Click here to view the timeline, supporting documentation, presentations and drafts of the amendment on the Planning Commission website.
Solar renewable energy facilities site development standards must be provided in a concept plan including screening, fencing and decommissioning large arrays of photovoltaic panels, as defined in the amendment. In response to the proposed solar Zoning Ordinance, the County Engineering department recommended revisions to the Jefferson County Stormwater Management Ordinance, which will be addressed after the solar facilities amendment.
The JCC held a public hearing virtually (online) on file #ZTA19-03, an amendment to the JC Zoning and Land Development on Friday, September 11, 2020.
JCV’s recommendations can be found below, or for a shortened version, you can download this PDF guide.
Our Recommendations
JCV recommends the County Commission revise the zoning ordinance guidelines modifying the proposed principal permitted use to a conditional use process.
Consider these factors:
A requirement for minimum or maximum acreage is undefined.
It is unknown how many facilities are planned, or their size or location.
Principal permitted and conditional land use table (page 17) recommended to be modified to include Solar Energy Facility, in the Jefferson County Zoning and Land Development Ordinance.
Large-scale solar utilities by right would be allowed as long as the developer’s concept plan incorporates the text amendment guidelines.
The facility construction could include accessory components of inverters, transformers, and connections to transmission lines and substations, following local, state and federal permitting regulations.
In proposal #ZTA19-03, as a principal permitted use, solar facilities could be located by right within 80 percent of county land zoned general commercial, highway commercial, light industrial, major industrial, rural, residential growth, residential-light industrial-commercial, and industrial commercial.
JCV recommends that as part of the conditional use for development, an environmental impact assessment is conducted and includes appropriate soil samples (borings) and geotechnical analysis.
Suggested conditional use requirements include: documentation of surrounding archaeological, historical and wetland designations; documentation of flood risk; documentation and reporting of identified sinkholes; documentation on loss of wildlife and species habitat; documentation of impacts on surrounding property owners including value, viewshed, noise and light.
A conditional land use may be permitted in a particular zoning district only after review by the Board of Zoning Appeals and upon issuance of a conditional use permit, subject to requirements of each district and/or other requirements of the Zoning and Land Development Ordinance.
The amendment defines these main guidelines that a large-scale solar installation of photovoltaic panel technology must meet:
Screening. Solar panels must be set back 100 feet from all external/perimeter property lines and from the edge of any state road. Accessory components require 25 feet setback from the perimeter. A 20-foot buffer screen (vegetative or opaque fencing) is required when panels are located within 200 feet of a residence.
Fencing. A security fence between 6 to 10 feet with secured gates shall be erected around the operating areas of the facility.
Decommissioning. An outline of the lease duration and plan for proper removal and disposal of the panel system, mounting structures and the reasonable restoration of real property must be approved. The facility must post surety to enable the decommissioning completion.
The development of alternative energy can be viewed with benefits and disadvantages as Jefferson County pursues the creation of and use of a variety of energy sources (including renewable energy) within the County while converting rural land to non-agricultural uses. The form and types of development that take place in the rural environment should be respectful of the rural culture and historic nature of the community.
Guiding Development Decisions
From Jefferson County’s Comprehensive Plan, Envision 2035, Appendix D – Goals and Objectives:
Goal #10: Maintain and Enhance Community Services and Infrastructure Capacity for Water, Sanitary Sewer, Storm Sewer, and Other Utilities; and Enable the Provision of Orderly and Efficient Services and Advanced Technologies
Objective #9: Encourage the creation of and use of a variety of energy sources (including renewable energy) within Jefferson County in ways that respect the character of the County.
From Jefferson County’s Stormwater Management Ordinance:
In 2014, Jefferson County adopted a new stand-alone Stormwater Management Ordinance that effectively regulates the quantity of stormwater generated by local development. This includes standards related to water quality and provisions for low impact design stormwater provisions.
These standards help to protect, maintain, and enhance the environment of Jefferson County and the public health, safety, and general welfare of the citizens of Jefferson County by controlling discharges of pollutants to Jefferson County’s stormwater system, and maintain and improve the quality of the receiving waters into which all stormwater flows, including, without limitation, lakes, rivers, streams, ponds, wetlands, and groundwater of the community.
Additional Information
A copy of Jefferson County’s Comprehensive Plan, Envision 2035, and the Future Land Use Planning Guide is available here.
Jefferson County’s Stormwater Management Ordinance is available here.
News
The Observer, Feb/March 2021 – WV Independent Observer LLC
https://wearetheobserver.com/wp-content/uploads/2021/02/21-03-Observer.pdf
The Observer, Observer Map and Connecting Solar to the existing grid https://wearetheobserver.com/connecting-solar-to-the-grid/
WV Metro News, 01/29/21 – PSC considers evidence concerning large solar energy project in Jefferson County
WV Metro News, 01/28/21 – Public Service Commission to decide on large solar energy project planned for Jefferson County
The Observer, https://wearetheobserver.com/solar-in-jefferson/
The Observer, 7/30/20 – Perspectives from a Local Solar Professional: https://wearetheobserver.com/perspectives-from-a-local-solar-professional/
The Observer, 9/1/20 – Sparking A Conversation: Local Farmers Discuss Large-Scale Solar Development: https://wearetheobserver.com/sparking-a-converstation/
Jefferson County Development Authority, 08/19/20 – JCDA recommendations on alternative energy amendment. Page 89 http://www.jeffersoncountywv.org/Home/ShowDocument?id=18801
The Journal, 08/06/20 – Commissioners mull solar facilities in Jefferson County, public hearing set for Sept. 11: https://www.journal-news.net/journal-news/commissioners-mull-solar-facilities-in-jefferson-county-public-hearing-set-for-sept-11/article_5200d0f0-81e5-5df0-a244-74dbea9b3f84.html
The Journal, 05/06/20 – Jefferson Co. Planning Commission approves solar energy text amendment for public comment: https://www.journal-news.net/journal-news/jefferson-co-planning-commission-approves-solar-energy-text-amendment-for-public-comment/article_cb1fde11-c349-572e-9411-c4899a24dbc1.html
Spirit of Jefferson, 8/26/20 – EXPERTS: Few Jefferson County sites can accommodate solar farms: http://www.spiritofjefferson.com/news/article_ebbbebec-e71a-11ea-a0bf-cbc866ea69b0.html
Spirit of Jefferson, 8/19/20 – Commissioners continue raising questions on solar farms: http://www.spiritofjefferson.com/news/article_697d4830-dca0-11ea-b096-37db25cf5340.html
Spirit of Jefferson, 7/1/20 – County planners give solar farms a favorable nod: http://www.spiritofjefferson.com/news/article_20731858-bbae-11ea-ab0c-c730a2eae913.html
Sierra Club, 01/20 – Clean Energy Works in West Virginia: https://www.sierraclub.org/sites/www.sierraclub.org/files/blog/2130%20Clean%20Energy%20Works%20in%20West%20Virginia_05_web%20%281%29.pdf
The Nature Conservancy -Solar Development in WV, A pathway to a brighter economic future: https://www.nature.org/content/dam/tnc/nature/en/documents/solar-in-WV.pdf
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