JCC green lights solar farm projects

Solar panels outside a prison near Hagerstown, Maryland.

CHARLES TOWN – A Jefferson County Circuit Court judge struck down efforts that began 21 months ago to allow industrial solar farms to operate in Jefferson County.

Judge Debra McLaughlin invalidated a zoning ordinance change adopted by the Jefferson County Commission in April that was designed to permit solar farms in eight of 12 zoning areas, including land zoned for rural uses. 

Issuing a ruling in a lawsuit filed by a group of citizens living near a proposed 795-acre solar farm project near Kabletown, McLaughlin concluded that the county commission failed to show how allowing solar farms on rural-zoned land would conform to the county’s comprehensive development plan. 

Formally called the “Envision Jefferson 2035,” the county’s comprehensive plan outlines the reasons for permitting or restricting different kinds of development. The 255-page comprehensive plan was last updated in 2015, before solar farms were contemplated as a particular development activity proposed in the county, officials say. 

McLaughlin agreed with the county commission that the comprehensive plan supports solar energy developments. She also acknowledged that the comprehensive plan recognizes the need for farmers to diversify their agricultural operations to remain financially viable.

However, McLaughlin disagreed with the commission that solar farm projects on rural-zoned land reflect the type of commercial activity the comprehensive plan envisions to help farmers preserve farms to support “a viable rural economy to maintain the rural landscape.” 

McLaughlin determined that solar farm projects on farmland constitute a commercial activity rather than an ancillary agricultural activity as intended under the comprehensive plan. 

Leasing farmland to solar projects, which involve contracts lasting 30 years or more, removes farmers too far from the activity allowed for rural zoned land, she concluded.

McLaughlin wrote that the comprehensive plan would accommodate solar farms outside rural-zoned areas. But she did not indicate which of the county’s 11 other development zones could accommodate solar farms in keeping with the comprehensive plan.

In response to McLaughlin’s ruling, passing a motion made by Commissioner Tricia Jackson, a 3-1 majority of the county commission voted last Thursday to “consider amending the comprehensive plan to clarify solar facilities be recognized as a principal permitted use” in rural zoning districts “and to do so as quickly as possible.”

Any process to amend the comprehensive plan would involve public hearings before the planning commission would forward a recommendation of any text changes to the county commission, according to county attorney Nathan Cochran. The county commission would also hold a public hearing before it would take any final vote to make changes to the comprehensive plan, he said.

Jackson and Commissioners Clare Ath and Caleb Hudson voted for the measure. 

Commissioner Jane Tabb voted against the measure. “I understand where we are with the court case and what has been worked on the [inaudible] facilities, but I think we’re bending over backwards to make it work. And I don’t think that’s the right approach at the moment.” 

Tabb twice voted against two previous ordinance changes allowing solar farm facilities in favor of a case-by-case “conditional use” review and approval of solar farms that the adopted ordinances didn’t provide. 

Commissioner Steve Stolipher, a real estate broker who lives on a farm near a proposed solar farm project, elected to not participate in the vote.

The commission’s previous two actions to allow solar farms would potentially affect about 70 percent of county land. However, according to solar industry representatives, solar farms need to be within a half-mile of five existing electrical utility substations. That requirement that would significantly limit the number of such projects in the county, they said.

Defending its decisions in circuit court against the citizen lawsuits, the county commission in part argued that its authority to pass local legislation, including changes to the zoning ordinances, carries more legal discretion and weight than a comprehensive plan. 

“Nonetheless, comprehensive plans do not carry the weight of law,” the commission maintained in a 31-page court brief filed in June. “They are guidelines that lay the foundation for zoning ordinances, but they are not legislative in nature.”

But in her 18-page ruling, McLaughlin underscored the importance of having zoning ordinances follow the comprehensive plan’s guidelines. And she maintained that the county commission’s record of public deliberations over the adopted solar farm text amendment “shows that there is very little discussion about the comprehensive plan.”

“The County Commission,” she continued, “makes no factual findings and leaves this Court to guess that it is adopting the finding of the Planning Commission when it votes to conclude the [zoning ordinance change] is consistent with the comprehensive plan.”

Meanwhile, McLaughlin called the commission’s “factual basis” that the adopted zoning change conformed to the comprehensive plan “woefully lacking.” 

She wrote: “The arguments cited by the attorney’s arguing their points in favor or against the [zoning ordinance change] are contained nowhere in the record of the County Commission, who is statutorily required to make such factual findings if the Court and public is to have trust in its legal conclusion.”

The commission has 30 days from McLaughlin’s Aug. 16 ruling to file an appeal with the West Virginia Supreme Court. The commission could also ask McLaughlin to reconsider her ruling. 

The court ruling puts on hold the Kabletown Road project proposed by Wild Hill Solar, a San Diego, California subsidiary of EDF Renewables Development, an international French-owned firm.

In June, the planning commission approved a concept plan for the Wild Hill project.

In February, the West Virginia Public Service Commission ruled that the $125 million Wild Hill project could move forward under whatever regulations the county might adopt. The PSC determined that the project was consistent with the state’s goal to support renewable energy development.

Hindered by the citizens’ lawsuits that were filed, withdrawn and then refiled, the county commission, working in concert with the planning commission, twice adopted the zoning ordinance change to permit solar farm developments in rural, commercial and residential areas.

Throughout several public hearings, some citizens remained concerned that fields of black solar panels would be allowed to dominate the county’s landscape. However, some local farmers argued that solar farm leases would help some farmland avoid the residential developer’s plow, at least for a few decades. Selling their farmland to developers is available to them now, they pointed out.

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