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Home My WebLink About011-20 (ConsentFilingCUPAppBartonsvilleSolarFacilityRightsOfWayInSubs BOARD OF SUPERVISORS RESOLUTION CONSENTING TO THE FILING OFA CONDITIONAL USE PERMIT APPLICATION FOR A UTILITY-SCALE SOLAR POWER GENERATING FACILITY ON RIGHTS-OF-WAY WITHIN THE SPRINGDALE GLEN AND CARROLLTON ESTATES SUBDIVISIONS WHEREAS, Frederick County has received a conditional use pen-nit application (the "Application") for a utility-scale solar power generating facility (the"Solar Facility") on approximately 957 acres, generally located along Passage Road (Route 648), Marlboro Road (Route 631), and Springdale Road (Route 649), west of the CSX rail corridor and partially within the limits of the Town of Stephens City; and WHEREAS, among the parcels that the Application includes are the entirety of the Springdale Glen (Tax Parcel Numbers 74-7-1 through 74-7-12) and Carrollton Estates (Tax Parcel Numbers 74-5-1 through 74-5-52) Subdivisions (the"Subdivisions"), which are owned by the Applicants for the Application; and WHEREAS, the Subdivisions, which are presently unbuilt, also include various unbuilt road rights-of-way(the "Rights-of-Way"), which have been dedicated to Frederick County pursuant to applicable law; and WHEREAS, operation of the Solar Facility would require the use of the parcels within the Subdivisions, which parcels are owned by private party applicants, and of the Rights-of-Way, which are owned by the County by virtue of their previous dedication, but only the private party applicants are parties to the Application; and WHEREAS,the Applicants for the Application also desire to include the Rights-of-Way as part of the Application, subject to the vacation of the Subdivisions in the event of and subsequent to the approval of the Application; and WHEREAS, the Applicants for the Application need the consent of the Board of Supervisors to include the Rights-of-Way in the Application, subject to the vacation of the Subdivisions in the event of and subsequent to the approval of the Application; NOW, THEREFORE, BE IT RESOLVED, that the Board of Supervisors consents to the filing of the Application to include, in part, the Rights-of-Way, subject to and expressly conditioned, however,upon the vacation of the Subdivisions, in the event the Board approves the Application and adopts a condition as part of any such conditional use pennit, to the effect that the conditional use permit shall not be effective unless and until the vacation of the Subdivisions is approved and recorded. ADOPTED this 12t' day of August, 2020. Charles S. DeHaven, Jr., Chainnan Aye Shawn L. Graber Aye J. Douglas McCarthy Aye Robert W. Wells Aye Blaine P. Dunn Aye Gene E. Fisher Aye Judith McCann-Slaughter Aye Kris e ey Clerk, Board of Supervisors County of Frederick, Virginia BOS Res. #011-20 COUNTY OF FREDERICK Roderick B. Williams County Attorney 540/722-8383 {GfA Fax 5401667-0370 E-mail rwillia@fcva.us MEMORANDUM TO: Board of Supervisors FROM: Roderick B. Williams, County Attorney DATE: August 4,2020 RE: Bartonsville Solar Facility—Conditional Use Permit Application—Consent for Inclusion of Public Rights-of-Way in Encompassed Subdivisions Attached please find a proposed resolution by which the Board would consent to the inclusion of unbuilt but County-owned road rights-of-way within two unbuilt subdivisions as part of a pending conditional use permit(CUP) application for a utility-scale solar power generating facility. The resolution would have no effect on the County's proprietary interest in the rights-of-way, as the resolution would expressly condition the Board's consent on the vacation of the subdivisions, as the vacation, by operation of law, would cause reversion of the ownership of the rights-of-way to the subdivision owners. By way of background, last month, the County received a CUP application from Bartonsville Energy Facility, LLC (and associated landowners) for a utility-scale solar power generating facility, to be comprised of approximately 957 acres (with the rights-of-way constituting an additional 15.22 acres, more or less), generally located along Passage Road (Route 648),Marlboro Road(Route 631), and Springdale Road(Route 649), west of the CSX rail corridor and partially within the limits of the Town of Stephens City. In this memorandum, I refer to the subject facility as the"Bartonsville Solar Facility". At present,the Planning Commission public hearing on this application is scheduled for September 2.1 The parcels that would be subject to the Bartonsville Solar Facility include 64 lots that currently comprise two platted but unbuilt residential subdivisions, Springdale Glen and Carrollton Estates. Because of this,the geographic scope of the Bartonsville Solar Facility presents a unique situation. Specifically, as is typical of subdivisions, the act of creating the subdivisions resulted in dedication of the internal subdivision street rights-of-way to the County. Dedication of the internal subdivision street rights-of-way means that, at this time,the County ' To avoid any confusion here,I note that the Bartonsville Solar Facility is entirely unrelated to the Foxglove Solar LLC utility-scale solar power generating facility CUP,generally located along Marlboro Road,Hites Road,Klines Mill Road,Clark Road,and Vaucluse Road,which the Board approved on July 8. 107 North Kent Street • Winchester, Virginia 22601 actually owns the rights-of-way. By way of further explanation, however, I note that these subdivision streets are likewise unbuilt and that neither the County nor VDOT have expended any public funds relative to the subject subdivision streets. The concept plan for the Bartonsville Solar Facility expressly contemplates that the facility will use all areas of the two subdivisions, including the rights-of-way. The applicants represent that they will vacate the subdivisions following any approval of the CUP and prior to site plan approval. In fact, the proposed conditions of the CUP include vacation of the subdivisions as a requirement. State law and County Code provide that all of the owners of a subdivision may,with the Board's consent, vacate a subdivision before the sale of any lot therein and that, upon vacation.,the rights-of-way revert to the owners of the land within the subdivision. Va. Code §§ 15.2-2271, 15.2-2272, and 15.2-2274; County Code § 144-14. I have identified as a concern, however, the fact that, absent additional action, any approval of the CUP by the Board would therefore presently only include the subdivision lots and not the rights-of-way. Approval of the CUP without it extending to the rights-of-way would be of only limited utility to the applicants. Therefore, as the best way to address this situation, I have prepared the attached proposed resolution for the Board's consideration. The attached proposed resolution, if the Board adopts it, would permit the CUP application to proceed with respect to the subdivision lots and the encompassed rights-of-way, but only expressly conditioned upon the vacation of the subdivisions following approval of the CUP. By the terms of the proposed resolution, if the vacation of the subdivisions does not occur, then the CUP would not take effect. The attached proposed resolution, if the Board adopts it, is a common sense solution to an awkward circumstance in which particular property owners, with the Board's consent,have a right to vacate the subdivisions and, as a result, have the rights-of-way in those subdivisions revert back to them. Because the applicants do not currently own the rights-of-way and do not desire to vacate the subdivisions before the approval of the CUP,they need the Board's permission to include the rights-of-way in the application. For understandable reasons, it does not appear that the County should force them to lose the benefit of any subdivision by vacating them, merely in order to be able to apply for a CUP as to which the applicants obviously have no guarantee of approval. Attachment