Why it’s better to let counties review solar projects case-by-case

A journey through rural Virginia, especially the Southside, will reveal that large-scale solar development is widespread. As of October 2023, around 200 projects have been approved at the county level, totaling over 7,000 megawatts AC (MWac) in electrical generation, and there were 27 projects in commercial operation statewide. Many  forthcoming projects are in the process of obtaining the permits, financing and utility-related arrangements necessary to make a solar facility a reality.

It all starts at the county level, and Virginia counties now have many levers to pull in exercising their general zoning powers over large solar projects.  

A clear trend has emerged of Virginia counties purposefully limiting their own options. An increasing number of them are imposing explicit moratoria or near-bans on solar development. 

Counties generally review special use permit (SUP) applications for solar projects through their planning commissions and boards of supervisors. Many counties have built into their zoning codes detailed provisions specifically for large-scale solar installations. The Center for Infrastructure and Economic Development, an organization founded to encourage balanced ordinances and policies related to renewable energy development, has advised on such “solar ordinances” in Virginia and other states.

Over the last year, at least ten counties have imposed an acreage or density limitation on the aggregate amount of solar that is allowed to be built in the county, with caps as low as 0.32% of total county acreage. In some of these counties – such as the current hot button example of Mecklenburg County – the cap has already been met by existing projects, or will soon be reached, effectively establishing a moratorium on solar development. This is not what the Center would view as balanced. 

The SUP review process is not the only way a county can weigh in on a project.  Virginia law requires each planning commission to determine whether a solar project is “substantially in accord” with the county’s comprehensive plan (known colloquially as the “2232 Determination”). This determination is sometimes made instead by the county’s board of supervisors.

And, not insignificantly, 2020 legislation gave counties the explicit authority to enter into potentially lucrative siting agreements with project developers. That and other avenues for revenue generation have made solar projects a boon for counties looking to fund critical infrastructure needs.

The Center believes that local governments, armed as they are with the ability to make case-by-case evaluations and impose reasonable development requirements, are in a good position to ensure balanced land use for solar development in their counties. In contrast, per-project acreage caps, county-wide caps on the acreage used for solar projects and caps tied to percentages of a county’s prime farmland or forest land can be arbitrary and unreasonable.

Several other counties have set a radius restriction between solar projects, either absolute (such as in Southampton County) or combined with a density restriction, which limits the number of projects that may be located within a particular area (this is the case in Pittsylvania County). Other existing or under-consideration approaches we’ve seen gathering some popularity is a rural jurisdiction limiting county-wide solar megawatts to that county’s own relatively small energy demand. Another is requiring projects be a certain distance from substations.  

Numeric restrictions seem to have caught on across the Commonwealth, as at least five additional counties are currently considering acreage caps, application pauses, or absolute moratoria as I write this. Caps, in particular, may be attractive in a temporary, political sense because they provide justification for counties allowing particular solar projects to proceed while signaling that county leaders take the opposition to solar seriously. That this vocal opposition is often based on misinformation from regional and national anti-solar groups – a phenomenon recently highlighted in several national publications – is typically ignored.

Entire counties shutting themselves off to solar development will have a significant impact on the commonwealth’s ability to meet its clean energy goals. The Virginia Clean Economy Act requires state electric utilities to become 100% carbon neutral by 2050 and to build over 1,600 MWac of solar and wind capacity by 2035. Obtaining local project approval will be critical for meeting these goals. 

One notable issue concerns the previously referenced 2232 Determination. The 2232 statute requires planning commissions to review all zoning and development through the lens of a county’s comprehensive plan. One could view a solar acreage cap as an order to the planning commission that it must violate state law by refusing to consider projects beyond the cap. It is arguable that counties have no authority to block the state-mandated process of a review against the comprehensive plan. 

So where does this leave us and where do we go? 

If counties continue to interfere with Virginia’s ability to meet its clean energy goals, it is conceivable that the General Assembly may seek to curtail local control over solar siting, as other states have already done. However, we are not aware of any such efforts and view that as an unlikely scenario at the present time.  

If presented with the right fact pattern, a Virginia court could block bans, moratoria and quasi-moratoria by requiring all projects to be evaluated individually as the 2232 statute requires, and not be preemptively rejected under an acreage cap or other numerical limitation. This would make it difficult for counties to implement either explicit or effective bans on new solar development. 

Blanket acreage caps and similar limitations on solar project development prevent counties from doing their jobs: individually reviewing solar projects based on balanced land use principles. This is an evolving situation, which is sensitive to shifts in the political balance at both the county and state levels. However, regardless of how the moratorium issue is ultimately settled – by court decision, legislation, or local decisions to listen to solid legal advice – the Center believes case-by-case project review is the right way to approach solar development in Virginia.