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HomeMy WebLinkAbout12-21 BOS Staff Report CONDITIONAL USE PERMIT #12-21 Hollow Road Solar, LLC Staff Report for the Board of Supervisors Prepared: January 3, 2022 Staff Contact: M. Tyler Klein, AICP, Senior Planner This report is prepared by the Frederick County Planning Staff to provide information to the Planning Commission and the Board of Supervisors to assist them in making a decision on this request. It may also be useful to others interested in this zoning matter. Reviewed Action Planning Commission: 12/01/21 Approved Board of Supervisors: 12/08/21 Postponed 01/12/22 Pending EXECUTIVE SUMMARY: This is a request for a Conditional Use Permit (CUP) to enable construction of a utility-scale solar power generating facility located on three (3) properties totaling approximately 326-acres +/-. Should the Board of Supervisors find this use for a utility-scale solar power generating facility to be appropriate, the Planning Commission recommended the following Conditions of Approval: 1. All review agency comments provided during the review of this application shall be complied with at all times. 2. An engineered site plan, in accordance with the requirements of Article VIII of the Fredrick County Zoning Ordinance, shall be submitted to and subject to approval by Frederick County prior to the establishment of the use. The site plan shall address additional regulations for specific uses outlined in §165-204.26 of the Frederick County Zoning Ordinance and be in general conformance with the Concept Plan, included with the CUP application, prepared by Timmons Group, dated November 5, 2021. 3. Pursuant to Code of Virginia §15.2-2241.2(B), the owner shall comply with the Decommissioning Plan, included with the CUP application, prepared by Hollow Road Land Holdings, LLC, dated November 5, 2021, and shall update the Decommissioning Plan every five (5) years. 4. At the time the project achieves commercial operation, the owner will execute an extinguishment of transferrable development rights for Tax Parcels 27-A-11 and 27-A-12, and, further, the owner will grant a conservation easement for the portion of the property encompassed by Tax Parcels 27-A-11 and 27-A-12 that is not developed with solar panels or other solar energy infrastructure, with the balance of the property to be placed in conservation easement at the time of decommissioning. These conditions shall be memorialized in a solar siting agreement with Frederick County, attached as Exhibit A of these Conditions, pursuant to Code of Virginia Section 15.2-2316.6 et seq. 5. Batteries, for the purposes of mass storage of electricity that will eventually be transferred to the grid, shall not be used on the properties subject to this CUP. Page 2 CUP #12-21 – Hollow Road Solar, LLC January 3, 2022 6. Access to the site shall be limited to two (2) entrances, one (1) entrance from Parishville Road (Route 610) and one entrance from Anchorage Lane (Route 1416) in conformance with the Concept Plan, included with the CUP application, prepared by Timmons Group, dated November 5, 2021. Delivery of solar array panel construction materials and equipment shall occur only at the site access entrance off Parishville Road (Route 610) identified as “Primary Access Road” on Sheet 3 the Concept Plan. Use of the “50’ R/W Ingress & Egress/Secondary Access Road” from Anchorage Lane shall only be used for passenger vehicle access during construction and post- construction maintenance. 7. Pile-driving of poles for solar arrays shall be limited to 7:00 a.m. to 5:00 p.m. Monday through Friday. All other construction activities are permitted 7:00 a.m. to 7:00 p.m. Monday through Friday and 7:00 a.m. to 5:00 p.m. on Saturday. No construction activities are permitted on Sundays. 8. A Phase 1 Archaeological and Architectural Survey will be completed as part of the permitting of this project and completed prior to site plan approval. This survey shall document the historic dwelling, barn and areas surrounding the farm complex barn (located on PIN # 27-A-11). This survey shall be submitted to the Frederick County Department of Planning and Development and the Department of Historic Resources (DHR). Phase II surveys shall be conducted if DHR determines the areas and resources under consideration are potentially significant. In the event the above resources are eligible for inclusion on the NRHP as a result of the Pha se II study the structures and resources on the site shall be retained, stabilized and preserved and no disturbance shall occur within 100-feet (FT). 9. Any expansion or modification of this land use will require the approval of a new CUP. Following this public hearing, a decision by the Board of Supervisors on this proposed conditional use permit would be appropriate. Any recommendation for approval would also affirm that the proposed solar facility is in accordance with the Comprehensive Plan. Page 3 CUP #12-21 – Hollow Road Solar, LLC January 3, 2022 LOCATION: The properties are generally located south of Parishville Road (Route 610), generally south of the terminus (cul-du-sac) of Anchorage Lane (Route 1416), and generally north and west of Hollow Road (Route 707) in Gore. MAGISTERIAL DISTRICT: Gainesboro PROPERTY ID NUMBERS: 27-A-8, 27-A-11 and 27-A-12 Note: The property identified with PIN #27-A-8 (Holmes property) will only be used for a subsurface interconnection easement and ingress/egress; no solar arrays (panels) or supporting equipment will be sited on PIN #27-A-8. PROPERTY ZONING & PRESENT USE: Zoned: RA (Rural Areas) Land Use: Agricultural, Forestal and Vacant. ADJOINING PROPERTY ZONING & PRESENT USE: North: RA (Rural Areas) Use: Agricultural/Forestal/Residential South: RA (Rural Areas) Use: Agricultural/Forestal East: RA (Rural Areas) Use: Agricultural/Forestal/ Residential West: RA (Rural Areas) Use: Agricultural/Forestal/ Residential PROPOSED USE: This is a request for a Conditional Use Permit (CUP) to enable construction of an 135- acre (disturbed area) 20-megawatt (MW) utility-scale solar power generating facility located on three (3) properties totaling approximately 326-acres +/-. REVIEW EVALUATIONS: Virginia Department of Transportation: The application for a Conditional Use Permit for this property appears to have little measurable impact on Route 610, Parishville Road, the VDOT facility providing access to the property. The proposed primary entrance lacks the proper amount of required sight distance for a “Low Volume” Commercial Entrance. This entrance could be used during construction, provided a VDOT approved “Traffic Flagging” scenario, as described in the “Work Zone Safety Manual” was approved. The proposed secondary access point, of Anchorage Court, could be utilized as a “Low Volume” Commercial Entrance for maintenance and non- commercial traffic after the “Solar Project” construction was completed. An a pproved VDOT Land Use Permit would be required for work at both locations. VDOT would support the Solar Project if the entrance situations were resolved. Should the use expand in the future, the entrance will need to be reviewed, to determine if additional improvements may be required. See comment letter dated January 22, 2021. Page 4 CUP #12-21 – Hollow Road Solar, LLC January 3, 2022 Winchester-Frederick County Health Department: The proposed project will not require an approved water supply or sewage disposal. See comment letter dated December 18, 2020. Frederick County Fire Marshal: Plans approved by Fire Marshal, Frederick County. See comment letter dated December 15, 2020. Frederick County Inspections: Conditional Use Permit for installation of solar arrays shall be designed per the 2015 Virginia Building Code, U-Utility Use Group. Solar panel installation not associated with publicly regulated utilities require permits. Plans submitted for permits may require the design to be sealed by a Registered Design Professional licensed in the State of Virginia. Arrays shall be designed for the applicable loads as required in Chapter 16 VBC. Please note the requirements in Chapter 17 of VBC for special inspection requirements on the type of structure (soil, concrete etc.). See comment letter dated December 14, 2020. Frederick County Public Works: A detailed site plan including erosion and sediment plans and stormwater plans will need to be submitted prior to construction. The plans shall comply with Chapter 143 of Frederick County Code. See comment letter dated December 21, 2020. Historic Resources Advisory Board (HRAB): The Frederick County Historic Resources Advisory Board (HRAB) considered this Conditional Use Permit application during their meeting on October 20, 2020. The project is adjacent to Sunrise (DHR #034-0486) which is listed on both the State and National Register of Historic Places. The site also has extensive frontage on Hollow Road which is listed as eligible for the State and Natural Register. The HRAB noted that there is a historic farm complex located on the site that had not been identified by the applicant; the site consists of a vacant dwelling and barn which were pictured in the Environmental Report. The HRAB stated that most likely this is a significant historic structure given the location and photographs included in the Environmental Report, and this structure has much architectural integrity (pattern of the house, central chimney, collection of structures, 18th century house) and most likely important to the early history of this area. The HRAB noted that this structure needs to be surveyed and preserved, and, not demolished as proposed. The HRAB recommended the following conditions: • A Phase II Survey needs to be conducted for the house/barn and surrounding site area. The survey needs to document the collection of historic structures on and around this development. Page 5 CUP #12-21 – Hollow Road Solar, LLC January 3, 2022 • All proposed disturbance areas need to be moved away from the house and barn. • The structures on the site need to be retained, stabilized and preserved (mothballed). See comment letter dated November 19, 2020. Planning and Zoning: The Planning Commission and Board of Supervisors previously considered this conditional use permit application for a utility-scale solar power generating facility on the subject properties with CUP #01-21 (denied by the BOS on March 10, 2021). The revised application for consideration, CUP #12-21, now includes a Solar Siting Agreement pursuant to the Code of Virginia § 15.2-2316.7. The applicant, Hollow Road Land Holdings, LLC, is also now the landowner of the properties identified with PIN’s #27-A-11 & #27-A-12. Proposal & Site Configuration The application proposes use of three (3) properties totaling approximately 326-acres +/- of RA (Rural Areas) Zoning District property, primarily used for agriculture, to generate up to 20 megawatts (MW) or photovoltaic (solar) electricity. Approximately 135-acres of the subject parcels will be utilized (disturbed) for the installation of rows of ground-mounted photovoltaic modules, commonly known as solar panels, other necessary equipment for facility operations, a transmission substation, access paths, fencing and landscaping. The solar panels will be interconnected, and the power generated by each solar panel will be combined, converted, and the voltage increased to allow delivery of the power to the adjacent Gore substation. The proximity of the project to the Gore substation and existing transmission line was a significant factor in the selection of these properties for the development of the facility. The undisturbed portion of the property will remain open space and forestal. The property identified with PIN #27-A-8 (89+/- acres Holmes property) will only be used for a subsurface interconnection easement and ingress/egress; no solar arrays (panels) or supporting equipment will be sited on PIN #27-A-8. In protecting the viewshed and mitigate the visual impact to neighboring properties in the vicinity of the property the Applicant has proposed buffering and screening around the perimeter of the property, in addition to maintaining existing mature woodlands (where feasible), to shield view of the facility from adjacent roadways, residences, and other agriculture uses. The proposed landscaping is a 10-foot (FT) wide planting strip or at least 50-FT of mature woodlands. The Zoning Ordinance (§165-203) requires buffers to include a mix of 1/3 deciduous trees (minimum 1.25-inch caliper at time of planting), 1/3 evergreen trees (minimum 4-FT tall) and 1/3 shrubs (minimum 18-inch tall). Additionally, the project as proposed does not include any batteries for the purposes of mass storage of electricity that will eventually be transferred into the grid. Small batteries will only be utilized as backup for solar tracker motors, substation, and associated equipment. Site Access & Transportation: Access to the site shall be limited to two (2) entrances, one (1) entrance from Parishville Road (Route 610) and one (1) entrance from Anchorage Lane (Route 1416). The Applicant has agreed to limit delivery of solar array panel construction materials and equipment to enter/depart the property only from Parishville Road (identified as “Primary Access Road” on Sheet 3 the Concept Plan prepared by Timmons Group dated Page 6 CUP #12-21 – Hollow Road Solar, LLC January 3, 2022 November 5, 2021). Use of the “50’ R/W Ingress & Egress/Secondary Access Road” from Anchorage Lane (as noted on Sheet 3) will be used only for passenger vehicle access and post-construction maintenance to mitigate impact to residential properties sharing Anchorage Lane. Notes: The”50 R/W Ingress/Egress” easement (0.3460-acres +/-), was made part of PIN #27-A-11 through a boundary line adjustment recorded in 2004 (Instrument # 040006636, attached to staff report), providing the owner of said PIN direct access to Anchorage Lane from the subject property. Comprehensive Plan Conformance: The Comprehensive Plan envisions this area of the County to remain primarily rural in nature and for rural areas to be preserved to ensure the economic viability of agricultural and forestal operations and that those lands are present for the use and enjoyment of future generations (Chapter II – Rural Areas). Further the plan specifically states as it relates to solar that utility scale solar facilities are typically passive uses with limited impacts to the environment and the rural character. Additionally, implementation of this use can facilitate the preservation of agricultural and rural land for future use once these sites are decommissioned, although the extent to which the use removes agricultural and rural land from current use should also be considered. Utility-scale solar facilities, when located in appropriate areas, can provide opportunities for landowners to recoup value from their property without subdividing. The Code of Virginia also enables localities implementing solar facilities to tax this utility infrastructure through the machinery and tools tax or revenue-share agreements with utility operators, generating additional tax revenue beyond the land use assessment. This additional revenue can help the County offset impacts from residential development (Chapter IV – Business Development). The project, as proposed, is in accordance with Comprehensive Plan policies. The project will not adversely impact the rural character of the area or the adjoining agricultural and residential uses. The preservation of the underlying land through the solar facility siting agreement (discussed below) maintains the ability to use the property for agriculture in the future if and when the facility is decommissioned. Maintaining the existing topography of the site, utilizing existing vegetation and planting new buffers to screen the facility will preserve the rural viewshed from adjoining properties. Further, the included Decommissioning Plan ensures a monetary guarantee to cover associated cost with the restoration of the land to it pre-development state and ability of the land to be use for agriculture again (if so desired) in the future. Zoning Ordinance Conformance: Utility-scale solar power generating facilities are a permitted use in the RA (Rural Areas) Zoning District with an approved Conditional Use Permit (CUP). The Board of Supervisors added “utility-scale solar power generating facilities” to the Zoning Ordinance on January 8, 2020, including additional regulations for specific uses. These additional regulations further specify for utility-scale solar power generating facilities to prepare an engineered site plan and enter into a written agreement with Frederick County for facility decommissioning. The Zoning Ordinance requirements for “Public Utilities” including “utility-scale solar power generating facilities” (§165-204.26) specifies the Zoning Administrator has the authority to determine appropriate setbacks for lots. The Applicant has proposed setbacks for the solar arrays (panels) for this project as follows: 60-FT from road rights of way, minimum 100-FT side/rear setbacks (from adjoining properties regardless of acreage), and minimum 200-FT setbacks from Agricultural and Forestal Districts. The provided setbacks are noted and shown on Sheet 2 of the Concept Plan. Page 7 CUP #12-21 – Hollow Road Solar, LLC January 3, 2022 Decommissioning Plan: A draft Decommissioning Plan included with the application materials, satisfies requirements contained in §165-204.26 of the Zoning Ordinance, ensuring that in the event the facility is no longer in operation, the land will be returned to the pre-development condition with all solar infrastructure and related facilities removed, ensuring future viability of the land to resume agricultural operations. Further, proposed condition of approval #3 ensures that Frederick County would maintain a bond that is updated every five (5) years keeping it up to date. Solar Siting Agreement: The applicant will also propose consideration before the Board of Supervisors a “solar siting agreement.” Solar siting agreements are outlined in the Code of Virginia § 15.2-2316.7; the code states any applicant for a solar project, or an energy storage project shall give to the host locality written notice of the applicant's intent to locate in such locality and request a meeting. Such applicant shall meet, discuss, and negotiate a siting agreement with such locality. The siting agreement may include terms and conditions, including (i) mitigation of any impacts of such solar project or energy storage project; (ii) financial compensation to the host locality to address capital needs set out in the (a) capital improvement plan adopted by the host locality, (b) current fiscal budget of the host locality, or (c) fiscal fund balance policy adopted by the host locality; or (iii) assistance by the applicant in the deployment of broadband, as defined in § 56-585.1:9, in such locality. The solar siting agreement legislation took effect July 1, 2021 and applies only to projects submitted on or after January 1, 2021. At the time the project achieves commercial operation, the owner will execute an extinguishment of transferrable development rights for Tax Parcels 27-A-11 and 27-A-12, and, further, the owner will grant a conservation easement for the portion of the property encompassed by Tax Parcels 27-A-11 and 27-A-12 that is not developed with solar panels or other solar energy infrastructure, with the balance of the property to be placed in conservation easement at the time of decommissioning. These conditions shall be memorialized in a solar siting agreement with Frederick County, attached as Exhibit A of these Conditions, pursuant to Code of Virginia Section 15.2-2316.6 et seq. Ultimately, approval of the siting agreement is an action of the Frederick County Board of Supervisors. Notes: A conservation easement is a legal agreement between a landowner and a government agency or non-profit conservation organization that places permanent limits on the future development of the property in order to protect the land, assuring that properties within conservation easements will remain rural and undeveloped, and restricting it from conversion to large-scale subdivisions or industrial/commercial uses. Land preserved with a conservation easement may still be used for farming, agribusiness/agritourism and forestry operations. Other Permitting: In addition to requirements contained in the Zoning Ordinance, the Applicant will pursue a “Permit-by- Rule” (PBR) application through the Virginia Department of Environmental Quality (DEQ). The PBR is a state-level administrative review and approval process for the siting of solar energy facilities in the Commonwealth, including environmental and cultural review and study. One component of the state required PBR review is local jurisdiction “approval” of solar project siting; this CUP application, if approved by the Frederick County Board of Supervisors, would satisfy that requirement enabling completion of a PBR process for this project. Page 8 CUP #12-21 – Hollow Road Solar, LLC January 3, 2022 PLANNING COMMISSION SUMMARY AND ACTION FROM THE 12/1/21 MEETING: The Planning Commission held a public hearing on the proposed conditional use permit (CUP) at their December 1, 2021, meeting. Following the staff presentation, the Applicant remarks noted receipt of the citizen comments from neighbors in the Whitham Orchard subdivision, provided a summary of estimated monetary contribution of the project to the County through tax revenue from the machine and tool tax on the infrastructure in addition to the land use assessment, an d summarized the conservation easement and extinguishment of transfer of development rights (TDR) commitment (at time of commercial operation) contained in the solar facility siting agreement. The Applicant also highlighted the natural topography of the site and existing mature vegetation would maintain an effective screen from neighboring properties and residences. One of the property owners (Ms. Diane Holmes) who is part of the application al so spoke in support of the conservation of the land to remain “rural” as opposed to seeing the property develop as houses. Four (4) members of the public spoke on the proposed CUP and expressed concerns with impacts to the viewshed, wildlife, and perceived impact to property values. The Planning Commission discussion focused primarily on the construction process (pile driving of poles for solar arrays and hours of operation), and discussion of if the property does not develop as a solar farm, it may ultimately develop as residential (or other use) with a net negative impact to the County. Commissioners specifically noted the solar facility siting agreement and conveyance of the conservation easement and extinguishment of TDR would ensure no residential would be developed in the future. The Planning Commission voted 10-1 (Commissioner Thomas – No) to forward the application to the Board of Supervisors for approval. STAFF CONCLUSIONS FOR THE 01/12/2022 BOARD OF SUPERVISORS MEETING: This is a request for a Conditional Use Permit (CUP) to enable construction of a utility-scale solar power generating facility located on properties totaling approximately 326-acres +/-. Should the Board of Supervisors find this use for a utility-scale solar power generating facility to be appropriate, the Planning Commission recommended the following Conditions of Approval: 1. All review agency comments provided during the review of this application shall be complied with at all times. 2. An engineered site plan, in accordance with the requirements of Article VIII of the Fredrick County Zoning Ordinance, shall be submitted to and subject to approval by Frederick County prior to the establishment of the use. The site plan shall address additional regulations for specific uses outlined in §165-204.26 of the Frederick County Zoning Ordinance and be in general conformance with the Concept Plan, included with the CUP application, prepared by Timmons Group, dated November 5, 2021. 3. Pursuant to Code of Virginia §15.2-2241.2(B), the owner shall comply with the Decommissioning Plan, included with the CUP application, prepared by Hollow Road Land Holdings, LLC, dated November 5, 2021, and shall update the Decommissioning Plan every five (5) years. Page 9 CUP #12-21 – Hollow Road Solar, LLC January 3, 2022 4. At the time the project achieves commercial operation, the owner will execute an extinguishment of transferrable development rights for Tax Parcels 27-A-11 and 27-A- 12, and, further, the owner will grant a conservation easement for the portion of the property encompassed by Tax Parcels 27-A-11 and 27-A-12 that is not developed with solar panels or other solar energy infrastructure, with the balance of the property to be placed in conservation easement at the time of decommissioning. These conditions shall be memorialized in a solar siting agreement with Frederick County, attached as Exhibit A of these Conditions, pursuant to Code of Virginia Section 15.2-2316.6 et seq. 5. Batteries, for the purposes of mass storage of electricity that will eventually be transferred to the grid, shall not be used on the properties subject to this CUP. 6. Access to the site shall be limited to two (2) entrances, one (1) entrance from Parishville Road (Route 610) and one entrance from Anchorage Lane (Route 1416) in conformance with the Concept Plan, included with the CUP application, prepared by Timmons Group, dated November 5, 2021. Delivery of solar array panel construction materials and equipment shall occur only at the site access entrance off Parishville Road (Rout e 610) identified as “Primary Access Road” on Sheet 3 the Concept Plan. Use of the “50’ R/W Ingress & Egress/Secondary Access Road” from Anchorage Lane shall only be used for passenger vehicle access during construction and post-construction maintenance. 7. Pile-driving of poles for solar arrays shall be limited to 7:00 a.m. to 5:00 p.m. Monday through Friday. All other construction activities are permitted 7:00 a.m. to 7:00 p.m. Monday through Friday and 7:00 a.m. to 5:00 p.m. on Saturday. No construction activities are permitted on Sundays. 8. A Phase 1 Archaeological and Architectural Survey will be completed as part of the permitting of this project and completed prior to site plan approval. This survey shall document the historic dwelling, barn and areas surrounding the farm complex barn (located on PIN # 27-A-11). This survey shall be submitted to the Frederick County Department of Planning and Development and the Department of Historic Resources (DHR). Phase II surveys shall be conducted if DHR determines the areas and resources under consideration are potentially significant. In the event the above resources are eligible for inclusion on the NRHP as a result of the Phase II study the structures and resources on the site shall be retained, stabilized and preserved and no disturbance shall occur within 100-feet (FT). 9. Any expansion or modification of this land use will require the approval of a new CUP. Following this public hearing, a decision by the Board of Supervisors on this proposed conditional use permit would be appropriate. Any recommendation for approval would also affirm that the proposed solar facility is in accordance with the Comprehensive Plan.