More Virginia Counties Are Seeking Solar Moratoriums, But Are They Legal?

Special thanks to Alexis Laundry, University of Richmond Law ’23, for her assistance in researching and writing this post.

 

We are seeing a trend with Virginia localities proposing or enacting solar moratoriums to allow for the updating or creation of solar-specific solar ordinances, including the newly enacted revenue share ordinance.[1] These are important developments that those in the solar power industry should be aware of as they are planning and executing solar projects. And, as discussed in this article, there are questions as to whether such moratoriums are legal in the first place.

 

Recent Solar Moratorium Developments in Virginia Counties

In response to the state’s new mandatory Renewable Portfolio Standards, over the past year localities have seen a drastic increase in the number of applications for special use and conditional use permits for utility-scale solar projects. The total amount of solar installed or under development increased by more than 700 MW between 2019 and 2020.[2] This has put strain on county planning offices, who have limited capacity and expertise to evaluate applications. The unprecedented increase has caused several county administrations to request their Board of Supervisors for a reprieve.

 

Last month, the Southampton County Planning Commission asked the Board of Supervisors to approve for public hearing an ordinance establishing a one-year moratorium on utility-scale solar applications starting September 10, 2021, to give the Planning Commission time to draft and pass new zoning ordinances for solar projects.[3] After substantial debate, and the defeat of a motion to limit the moratorium to six months, the Board approved a one-year moratorium, which began September 10, 2021.[4]

 

Southampton may be the most recent to seek a reprieve, but is by no means the only county to do so. Before them came Orange County and Gloucester County, and Nottoway County, among others. The Orange County Planning Commission voted in April to ask the Board of Supervisors for a temporary moratorium to allow the county time to modify the zoning ordinance provisions for solar development.[5] The planning commissioners voted 4-1 in favor of the moratorium, citing the need to further educate themselves on the merits of solar and the possible revenue streams that could come from future projects.[6] There was some discussion of recommending a time limit, such as 90 or 120 days, but ultimately left that decision to the Board. Unfortunately for the Commission, the Board declined to take any action on the resolution at their meeting in May and subsequently approved a utility-scale solar project in the county in August.

 

In February 2021, the Gloucester County Planning Commission recommended to the Board of Supervisors a moratorium on new utility-scale solar applications until the county could hold in person meetings again, citing the difficulty of conducting the required public hearings online.[7] It appears issues related to COVID played a part in the decision, but no doubt pressure from anti-solar community members also played at role. At the February meeting, the Commission received several public comments expressing opposition to further solar development in the county, citing concerns ranging from the cost and difficulties associated with decommissioning solar farms, the chemical composition of solar PV panels, various environmental issues, and overall county land use.[8] Similar concerns were expressed in Southampton County’s public hearings last month.[9] However, like in Orange County, the Board of Supervisors declined to take action on the recommendation. Instead, the Board agreed to form an advisory committee to give the Commission more guidance on solar permitting.[10]

 

On July 18, 2019, the Board of Supervisors of Nottoway County unanimously imposed a solar moratorium which remains in place today.  The Board notes that they wanted to better understand the ramifications of solar in the County. Its notable that this moratorium has been in place since well before the changes imposed by the Virginia Clean Economy Act and subsequent legislation, and has been in place for more than two years.

 

Questions as to the Legality of Solar Moratoriums

The solar moratoriums in Southampton and Nottoway, if challenged in the courts, may not withstand legal scrutiny.  As a “Dillon Rule” state, Virginia localities may only exercise powers specifically delegated to them by the state. In Board of Supervisors v. Horne,[11] the Supreme Court of Virginia ruled that Fairfax County’s zoning amendment imposing an emergency moratorium on the filing of site plans and subdivision was invalid, citing Dillons Rule, among other precedent. The General Assembly has also acted in the past to specifically prevent the imposition of zoning moratoriums in other contexts, for instance, in the case of wireless service or wireless infrastructure providers.[12] It is possible that certain developers or advocates for solar development in Virginia may lobby for legislation of a similar nature in the coming General Assembly session.

 

Impact on the Solar Industry on Virginia

With or without a moratorium in place, numerous counties in Virginia are evaluating solar specific zoning ordinances or updating their existing ordinances to better reflect the changes imposed by the Virginia Clean Economy Act and other related legislation and regulation. Interested parties should keep their eyes out for opportunities to provide feedback on any amendments and stay updated on any changes that could affect project proposals. GreeneHurlocker will continue to provide regular updates on the local county solar landscape in this blog.

 

[1] Va. Code § 58.1-2636 (2021).

[2] Va. Solar Energy Dev. & Energy Storage Auth., 2019 Annual Report 51 (2019); Va. Solar Energy Dev. & Energy Storage Auth., 2020 Annual Report 73 (2020).

[3] Southampton County, Va., An Ordinance Establishing a One-Year Moratorium on Receipt of Applications for Utility Scale Solar Energy Projects (drafted Aug. 24, 2021, adopted Sept. 9, 2021).

[4] Titus Mohler, Southampton County board establishes solar moratorium, Tidewater News (Sept. 10, 2021, 4:28 PM), https://www.thetidewaternews.com/2021/09/10/southampton-county-board-establishes-solar-moratorium/.

[5] Jeff Poole, Dark clouds? Planning commission asks supervisors for solar permit moratorium, Orange County Rev. (Apr. 24, 2021), https://dailyprogress.com/community/orangenews/news/dark-clouds-planning-commission-asks-supervisors-for-solar-permit-moratorium/article_2effed8c-a443-11eb-9928-cf1cd4658975.html.

[6] Id.

[7] Melany Slaughter, Planners recommend moratorium on solar applications, Gloucester-Mathews Gaz.-J. (Feb. 10, 2021), https://www.gazettejournal.net/planners-recommend-moratorium-on-solar-applications/.

[8] Gloucester County, Va., Planning Commission Regular Meeting Minutes (Feb. 4, 2021).

[9] See Mohler, supra note 3.

[10] Tyler Bass, Committee to consider future county solar projects, Gloucester-Mathews Gaz.-J. (Feb. 17, 2021), https://www.gazettejournal.net/committee-to-consider-future-county-solar-projects/.

[11] 216 Va. 113 (1975).

[12] Va. Code § 15.2-2316.5 (2021).

Andy Brownstein
abrownstein@greenehurlocker.com
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