DRRC 06-27-19 Meeting AgendaCOUNTY of FREDERICK
Department of Planning and Development
540/ 665-5651
Fax: 540/ 665-6395
MEMORANDUM
To: Development Review and Regulations Committee
From: M. Tyler Klein, AICP, Senior Planner
Subject: June 27, 2019 Meeting and Agenda
Date: June 21, 2019
The Frederick County Development Review and Regulations Committee (DRRC) will be meeting
on Thursday June 27, 2019 at 7:00 p.m. in the first-floor conference room (purple room) of the
County Administration Building, 107 North Kent Street, Winchester, Virginia. The DRR C will
discuss the following agenda items:
AGENDA
1) Election of DRRC Chairman and Vice-Chairman. As stipulated in the DRRC
Operating Procedures, a Chairman and Vice-Chairman will be elected during the first
meeting of each year.
2) Update Previous Zoning Ordinance Text Amendments.
3) Public Utilities. Discussion of a request by County staff to include a definition for “Public
Utilities” that includes utility-scale solar energy generating facilities and solar power
generating facility decommissioning requirements in the Fredrick County Zoning
Ordinance Supplemental Use Regulations as required under the Code of Virginia.
4) Other.
Please contact this office if you will not be able to attend the meeting. Thank you.
Access to this building is limited during the evening hours. Therefore, it will be necessa ry to
enter the building through the rear door of the four-story wing. I would encourage committee
members and interested citizens to park in the County parking lot located behind the new
addition or in the joint Judicial Center parking lot and follow the sidewalk to the back door of
the four-story wing.
MTK/dw
Attachment
Item #2: Update on Previous Zoning Ordinance Text Amendments
Since the last regular meeting of the DRRC the following items were not moved forward for a
public hearing (action) by the Board of Supervisors:
• Solar Farms as a Conditional Use in the RA (Rural Areas) Zoning District;
• Self-Storage Facilities as a Conditional Use in the RA Zoning District; and
• Shipping Containers as Accessory Structures/Uses in all Zoning Districts.
Staff will provide a brief summary on each item and Board of Supervisors meeting discussion.
No action is requested by the DRRC.
Item #3: Public Utilities
Based on recent amendments to the Code of Virginia, Staff proposes amendments to Chapter 165
– Zoning Ordinance to include:
1. A definition for “Public Utilities” that includes utility-scale solar power energy generating
facilities; and
2. Additional regulations for specific uses that requires utility-scale solar power generating
energy facilities to make arrangements, including financial security, for decommissioning.
The General Assembly amended the Code of Virginia (§15.2-22.41.2) to include decommissioning
of solar energy facilities in March 2019. As background, the County Attorney and Staff made a
determination that was shared with the Board of Supervisors in July 2018, stating that utility-scale
solar power generating energy facilities would qualify as a “public utility” type-facility and would
otherwise be allowed by-right in the County’s RA Zoning District (and other zoning districts where
public utilities are permitted by-right).
The proposed amendment remains consistent with the above determination and clarifies that
utility-scale solar power generating facilities are defined as a “public utility” in the Zoning
Ordinance and fulfills the Code of Virginia requirements for decommissioning of such facilities.
Staff is looking for direction from the DRRC on the appropriateness of this request for a text
amendment to the Zoning Ordinance. Depending on the outcome of this discussion, Staff may
forward this item to the Planning Commission for further discussion.
Attachment: Proposed Changes to Frederick County Zoning Ordinance Articles I & II
Code of Virginia §15.2-2241.2
Memo to the Board of Supervisors, July 26, 2018
ARTICLE I
GENERAL PROVISIONS; AMENDMENTS; AND CONDITIONAL USE PERMITS
Part 101 – General Provisions
§ 165-101.02 Definitions and word usage.
Public Utilities
Power (energy) generating, booster or relay stations, transformer substations, transmission lines and
towers, pipes, meters and other facilities (including utility-scale solar power energy generating
facilities), railroad facilities and sewer and water facilities and lines owned by public utilities, railroad
companies, public agencies, or those operators with a “Certificate of Public Convenience.”
ARTICLE II
SUPPLEMENTARY USE REGULATIONS, PARKING, BUFFERS, AND REGULATIONS FOR SPECIFIC USES
Part 204 – Additional Regulations for Specific Uses
§ 165-204.26. Public Utilities
1. Public utilities. Lot requirements for lots used by political subdivisions, municipal corporations, the
Virginia Department of Transportation, the Frederick-Winchester Service Authority, or the Frederick
County Sanitation Authority for public utility purposes shall be as follows:
A. In all zoning districts, the Zoning Administrator shall have the authority to determine the
minimum lot size necessary for such public utilities and the appropriate setbacks for such lots
used for public utility purposes.
B. Such lots shall be exempt from the individual on-site sewage disposal system requirements.
C. Such lots may be accessed by private access easements; any such easement shall be a minimum
of 15 feet in width.
2. Public Utilities - Utility-Scale Solar Power Energy Generating Facilities. Any owner, lessee, or
developer of real property for the purposes of solar power energy generation shall enter into a written
agreement, prior to site plan approval, with Frederick County to decommission solar energy
equipment, facilities, or devices pursuant to §15.2-2241.2 of the Code of Virginia (2019, as amended).
CHAPTER 743
An Act to amend the Code of Virginia by adding a section numbered 15.2-2241.2, relating to rezoning and site plan
approval; decommissioning solar energy equipment, facilities, or devices.
[H 2621]
Approved March 21, 2019
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding a section numbered 15.2-2241.2 as follows:
§15.2-2241.2. Bonding provisions for decommissioning of solar energy equipment, facilities, or devices.
A. As used in this section, unless the context requires a different meaning:
"Decommission" means the removal and proper disposal of solar energy equipment, facilities, or devices on real
property that has been determined by the locality to be subject to §15.2-2232 and therefore subject to this section.
"Decommission" includes the reasonable restoration of the real property upon which such solar equipment, facilities,
or devices are located, including (i) soil stabilization and (ii) revegetation of the ground cover of the real property
disturbed by the installation of such equipment, facilities, or devices.
"Solar energy equipment, facilities, or devices" means any personal property designed and used primarily for the
purpose of collecting, generating, or transferring electric energy from sunlight.
B. As part of the local legislative approval process or as a condition of approval of a site plan, any locality shall
require an owner, lessee, or developer of real property subject to this section to enter into a written agreement to
decommission solar energy equipment, facilities, or devices upon the following terms and conditions: (i) if the party
that enters into such written agreement with the locality defaults in the obligation to decommission such equipment,
facilities, or devices in the timeframe set out in such agreement, the locality has the right to enter the real property of
the record title owner of such property without further consent of such owner and to engage in decommissioning and
(ii) such owner, lessee, or developer provides financial assurance of such performance to the locality in the form of
certified funds, cash escrow, bond, letter of credit, or parent guarantee, based upon an estimate of a professional
engineer licensed in the Commonwealth, who is engaged by the applicant, with experience in preparing
decommissioning estimates and approved by the locality; such estimate shall not exceed the total of the projected
cost of decommissioning, which may include the net salvage value of such equipment, facilities, or devices, plus a
reasonable allowance for estimated administrative costs related to a default of the owner, lessee, or developer, and
an annual inflation factor.
CHAPTER 744
An Act to amend the Code of Virginia by adding a section numbered 15.2-2241.2, relating to rezoning and site plan
approval; decommissioning solar energy equipment, facilities, or devices.
[S 1091]
Approved March 21, 2019
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding a section numbered 15.2-2241.2 as follows:
§15.2-2241.2. Bonding provisions for decommissioning of solar energy equipment, facilities, or devices.
A. As used in this section, unless the context requires a different meaning:
"Decommission" means the removal and proper disposal of solar energy equipment, facilities, or devices on real
property that has been determined by the locality to be subject to §15.2-2232 and therefore subject to this section.
"Decommission" includes the reasonable restoration of the real property upon which such solar equipment, f acilities,
or devices are located, including (i) soil stabilization and (ii) revegetation of the ground cover of the real property
disturbed by the installation of such equipment, facilities, or devices.
"Solar energy equipment, facilities, or devices" means any personal property designed and used primarily for the
purpose of collecting, generating, or transferring electric energy from sunlight.
B. As part of the local legislative approval process or as a condition of approval of a site plan, a locality shall require
an owner, lessee, or developer of real property subject to this section to enter into a written agreement to
decommission solar energy equipment, facilities, or devices upon the following terms and conditions: (i) if the party
that enters into such written agreement with the locality defaults in the obligation to decommission such equipment,
facilities, or devices in the timeframe set out in such agreement, the locality has the right to enter the real property of
the record title owner of such property without further consent of such owner and to engage in decommissioning, and
(ii) such owner, lessee, or developer provides financial assurance of such performance to the locality in the form of
certified funds, cash escrow, bond, letter of credit, or parent guarantee, based upon an estimate of a professional
engineer licensed in the Commonwealth, who is engaged by the applicant, with experience in preparing
decommissioning estimates and approved by the locality; such estimate shall not exceed the total of the projected
cost of decommissioning, which may include the net salvage value of such equipment, facilities, or devices, plus a
reasonable allowance for estimated administrative costs related to a default of the owner, lessee, or developer, and
an annual inflation factor.
COUNTY of FREDERICK
Department of Planning and Development
540/ 665-5651
Fax: 540/ 665-6395
MEMORANDUM
TO: Frederick County Board of Supervisors
CC: Kris C. Tierney, County Administrator
Roderick B. Williams, County Attorney
Mike T. Ruddy, AICP, Director of Planning & Development
Mark R. Cheran, Zoning Administrator
FROM: M. Tyler Klein, AICP, Senior Planner
SUBJECT: Solar (Photovoltaic) Energy Facilities Text Amendment – Update
DATE: July 26, 2018
This is an update to the proposed text amendment to Chapter 165 – Zoning Ordinance to add solar
(photovoltaic) power generating facilities (i.e. solar farms) to the permitted use list for the RA
(Rural Areas) Zoning District. This item was previously discussed by the Board of Supervisors on
January 10th, February 14th and April 11th. Following our last discussion, the Board of Supervisors
had directed staff to make the proposed use a “conditional use” and provide additional
supplemental use regulations to address abandonment on the facility and return of the land to its
pre-development state. At the time of presentation to the Board, the premise of the draft text
amendment, as supported by the Development Review and Regulations Committee (DRRC), and
previously discussed by the Planning Commission, was that because solar farms are typically
“privately-owned, they would not qualify as a “public utility” generating facilities.
Since Board discussion in April, the County Attorney and Planning and Development staff have
met and determined that solar (photovoltaic) energy facilities would appear to quality as a “public
utility generating” facilities and would otherwise today be allowed by right in the County’s RA
Zoning District. The Zoning Ordinance currently permits as a by right use in the RA Zoning
District, “Public utility generating, booster, or relay stations, transformer substations, transmission
lines, and towers, pipes, meters, and other facilities, railroad facilities, and sewer and water
facilities and lines owner by public utilities, railroad companies or public agencies” (§165-
401.02(Q)). The term “public utility” does not address the public or private nature of the ownership
of the facility; most electricity generating facilities in the United States are owned by “private”
entities as opposed to government, i.e. “public” entities.
Further, the Frederick County Zoning Ordinance does not define the term “public utility” and
definitions not included in the definitions section of the Zoning Ordinance “shall have the meaning
ascribed to such word, term or phrase in the most recent addition of Merriam-Webster’s Dictionary
unless, in the opinion of the Zoning Administrator, established customs or practices in Frederick
County, Virginia justify a different or additional meaning” (§165 -101.02). Webster’s defines
“public utility” simply as “a business organization (such as an electric company) performing a
public service and subject to special governmental regulation.” This definition does not limit the
concept of a “public utility” to entities that sell electricity directly to the public or to entities that
are publicly traded and therefore does not exclude from its reach solar farms owned by non-
publicly traded entities. Within Code of Virginia §56-1, nothing in the definition of public service
companies suggests a distinction between the types of companies that operate solar farms and the
types of companies that operate other types of electricity generation facilities. State law
specifically regulates solar facilities as it does other electricity generating facilities, regardless of
the nature of ownership, by requiring the operator to seek a certificate of public convenience and
necessity from the State Corporation Commission (SCC) (§ 56-265.2). The County would
recognize a solar energy facility as a public utility under this interpretation.
This determination of solar electric generating facilities qualifying as a “public utility” would not
preclude the Board of Supervisors in the future from further regulating solar (photovoltaic) energy
facilities as allowed under the Code of Virginia or excluding them all from the current allowance
in §165-401.02(Q). Staff notes that possible supplementary regulations as previously discussed,
such as a requirement for removal of the facilities upon abandonment of use would place them in
a category currently unique to telecommunications towers. As well, any requirement for a bond
securing the removal of an abandoned facility might be sufficient economic disincentive as to
preclude any use of the opportunity that would be enabled by the ordinance generally.
Please contact the County Attorney’s office or Planning and Development staff directly with any
questions or comments. Unless otherwise directed by the Board of Supervisors, staff will proceed
with the above interpretation to allow solar energy facilities (i.e. solar farms), by right, under the
present allowance for public utilities in the RA Zoning District.
MTK/pd