HomeMy WebLinkAbout11-21 BOS Staff Report - NovemberCONDITIONAL USE PERMIT #11-21
Bartonsville Energy Facility II, LLC – Phase II Expansion Area
Staff Report for the Board of Supervisors
Prepared: October 27, 2021
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: 10/20/21 Recommended Approval
Board of Supervisors: 11/10/21 Pending
EXECUTIVE SUMMARY:
This is a request for a Conditional Use Permit (CUP) to enable construction of a 430+/--acre 40-
to-60-megawatt (MW) utility-scale solar power generating facility (disturbed area) located on
properties totaling approximately 636.7+/--acres.
Should the Board of Supervisors find this use for a utility-scale solar power generating facility to
be appropriate, the Planning Commission recommend 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 Phase II Expansion Area
Concept Plan, included with the CUP application, prepared by Greenway Engineering,
dated October 26, 2021.
3. Pursuant to Code of Virginia f §15.2-2241.2(B), the owner shall comply with the Exhibit
D: Expansion Area Decommissioning Plan, included with the CUP application, prepared
by Torch Clean Energy, dated September 2021, and shall update the Expansion Area
Decommissioning Plan every five (5) years
4. Pursuant to Code of Virginia § 15.2-2316.7, the owner shall comply with the written
Solar Siting Agreement, dated October 21, 2021, with Frederick County.
5. Batteries, for the purposes of mass storage of electricity that will eventually be
transferred to the grid, are prohibited as part of this CUP.
6. Access to the site shall be limited to one (1) entrance from Marlboro Road (Route 631)
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CUP #11-21 – Bartonsville Energy Facility II, LLC – Phase II Expansion Area
October 27, 2021
via Strode McLeod Lane to be used for construction and general site access and the
entrance configuration shall be in general conformance with the Phase II Expansion Area
Concept Plan, included with the CUP application, prepared by Greenway Engineering,
dated October 26, 2021. Delivery of solar array panel construction materials will occur at
the site access entrance off of Marlboro Road using Strode McLeod Lane on Sheet 3 of
the Concept Plan. Solar array panel materials delivery laydown area will be restricted to
Tax Parcel 74-A-18.
7. A Phase 1 Archeological Survey will be completed and submitted to the Department of
Planning & Development prior to site plan approval. This survey should document the
collection of historic structures on and around this development and determine if this area
would qualify as a rural historic district.
8. Pile-driving of poles for solar arrays during construction 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.
9. Any expansion or modification of this land use will require the approval of a new CUP.
Any recommendation for approval should also include a statement affirming that the proposed
solar facility is in substantial accord with the Comprehensive Plan.
Following this public hearing, a decision regarding this Conditional Use Permit application by
the Board of Supervisors would be appropriate. The Applicant should be prepared to
adequately address all concerns raised by the Board of Supervisors.
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CUP #11-21 – Bartonsville Energy Facility II, LLC – Phase II Expansion Area
October 27, 2021
LOCATION: The properties are generally located south of Marlboro Road (Route 631), east
and west of Strode McLeod Lane, north of Family Drive and west of the CSX rail corridor. The
project is immediately south and adjacent to Bartonsville Energy Facility – Phase I project area
(CUP #05-20, approved September 23, 2020).
MAGISTERIAL DISTRICT: Back Creek
PROPERTY ID NUMBERS: 73-A-104, 74-A-18, 74-A-18A, 74-A-18B, 74-A-19, 74-A-20,
and 85-A-1
PROPERTY ZONING & PRESENT USE:
Zoned: RA (Rural Areas)
Land Use: Agricultural, Residential, and Open Space
ADJOINING PROPERTY ZONING & PRESENT USE:
North: RA (Rural Areas) Use: Residential, Agricultural &Open Space
South: RA Use: Residential, Agricultural & Open Space
East: Town of Stephens City Use: Town of Stephens City (Industrial)
West: RA Use: Agricultural & Open Space
PROPOSED USE: This is a request to enable construction of a 430+/--acre 40-to-60-megawatt
(MW) utility-scale solar power generating facility (disturbed area) located on properties totaling
approximately 636.7+/--acres.
REVIEW EVALUATIONS:
Virginia Department of Transportation:
The application for a Conditional Use Permit for these properties appear to have little measurable
impact on Route 631 (Marlboro Road), the VDOT facilities providing access to the properties.
The location, Strode McLeod Lane, has been identified for a low-volume commercial entrance,
on Route 631. The existing entrance appears to meet VDOT standards for the proposed use.
Should the use ever expand in the future, the entrance will need to be reviewed, to determine if
additional improvements may be required.
See comment letter dated September 13, 2021.
Frederick County Fire Marshal:
Plans approved by Fire Marshal, Frederick County.
See comment letter dated September 7, 2021.
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Frederick County Inspections:
Conditional Use Permit for installation of solar arrays shall be designed per the 2018 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 September 15, 2021.
Town of Stephens City:
The Town has no opposition to the proposed conditional use permit as this expansion appears to
be consistent with the previously approved CUP located on contiguous properties.
See comment letter dated September 14, 2021.
Historic Resources Advisory Board (HRAB):
The Frederick County Historic Resources Advisory Board (HRAB) considered the above
referenced Conditional Use Permit application during their meeting on September 21, 2021. The
HRAB reviewed information from the Virginia Department of Historic Resources (VDHR) and
information provided by the Applicant. This application seeks to expand the site area of a
previously approved Conditional Use Permit. The Phase 2 site area consists of 636 acres; the total
combined site area for Phase 1 and Phase 2 is 1,600 acres. The Project will consist of rows of
ground-mounted photovoltaic modules, commonly known as solar panels. The site is located north
and south of Marlboro Road and west of the Town of Stephens City; Phase 1 is north of Marlboro
Road and Phase 2 is south of Marlboro Road
Historic Resources Advisory Board Comments:
The Virginia Department of Historic Resources identifies the following on or near the Phase 2 area:
#034-1078 Cherry Dale (Mary Stephens House) – located within the Phase 1 area
Eligible for listing in the National Register of Historic Places (NRHP)
#034-1401 – Kent Barley Orchard House – Located on site
#034-300 - Family Drive – Eligible
#034-0083 - Carter Hall – Eligible
#034-141 – Waveland
#034-84 – Pleasant Green – Potentially Eligible
#034-1004 – Grand View
#034-69 – LaGrange– Potentially Eligible
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During the HRAB’s review of the application, concern was expressed regarding the significant size
of this project and its location in a historic and scenic a rea of the County. While this use may
facilitate the preservation of agricultural and rural land for future use, the HRAB noted concern
about solar facilities previously approved and future requests and their potential to detract from the
historic and rural character of the County.
Following the HRAB’s review of this application, they ultimately recommended approval of the
CUP with the following recommendations:
• Recommendation: An enhanced buffer along Grand View (#034-1004) should be provided.
• Recommendation: A Phase 1 Archeological Survey will be completed as part of the
permitting of this project. This survey should document the collection of historic structures
on and around this development and determine if this area would qualify as a rural hist oric
district.
See comment letter dated September 23, 2021.
Planning and Zoning:
Proposal & Site Configuration:
The application proposes use of approximately 636.7-acres of rural area property, primarily used
for agriculture, to generate 40 to 60 megawatts (MW) of photovoltaic (solar) electricity.
Approximately 430-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 First Energy 138 kilovolt (KV) transmission line. The proximity of the project to the existing
transmission line was a significant factor in the selection of these properties for the development
of the facility.
The balance of property on the site, approximately 206.7-acres (i.e., area outside of the leased
area for solar arrays), will be maintained for agricultural use by the property owners, including
crops, orchards, and pasture.
The Application Narrative and Statement of Intent notes 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. However, small batteries will be utilized as backup for solar tracker motors,
substation, and associated equipment.
To protect 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
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property, in addition to maintaining existing mature woodlands (where feasible), to shield view
of the facility from adjacent roadways, residences, and other agriculture uses. Proposed
landscape buffers (and cross-sections) are included on Sheet 3 of the Concept Plan.
Immediately north and adjoining the property, is the Bartonsville Energy Facility – Phase I
project area (1,160.5-acres total), approved by the Board of Supervisors on September 23, 2020
with CUP #05-20. Under the approved Phase I project, PIN # 74-A-20 (Staples Property), was
approved for use as an interconnection parcel, including installation of a substation/switching
station. The Staples Property is also included in this CUP application and the applicant proposes
use of the property to also include solar arrays in addition to the substation/switching station.
Phase I project limits and details are included for reference on Sheets 4 and 5 of the Concept
Plan. A summary of the project area and disturbed area totals for each phase is included below.
Total Acreage Disturbed Area (Solar Arrays)
Approved Phase I (CUP #05-20) 1,160.5 705
Proposed Phase II (CUP #11-21) 636.7 430
Total 1,797.2 1,135
Site Access & Transportation:
Access to the site is limited to one (1) entrance from Marlboro Road (Route 631) to-be-used for
construction access, post-construction site access for maintenance and emergency vehicle access.
Following the Planning Commission public hearing on October 20, 2021, and in response to
public comments received from a neighboring property owner, the applicant removed the
proposed point-of-access from Family Drive (private driveway) at the southern boundary of the
project area. The revised entrance configuration is shown on Sheet 3 of the revised Concept Plan
(dated October 26, 2021).
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). The project, as proposed, is compatible with the Comprehensive
Plan. The project will not adversely impact the rural character of the area or the adjoining
agricultural and residential uses. The proposed use is highly passive with limited noise, odor,
glare, lighting, and traffic during operations. The preservation of the underlying land maintains
the ability to use the property for agriculture in the future if and when the facility is
decommissioned. Further, the included Expansion Area Decommissioning Plan ensures a
monetary guarantee to cover associated cost with the restoration of the land to it pre-
development state.
Zoning Ordinance Conformance:
Utility-scale solar power generating facilities are a permitted use in the RA (Rural Areas) Zoning
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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. Setbacks for the solar arrays (panels) will conform to the
setback requirements contained in the Zoning Ordinance for principle uses in the RA (Rural
Areas) Zoning District (§165-401.07): 60-feet (FT) front setbacks from right-of-way streets and
roads, and side/rear setbacks of 50-FT from adjoining parcels 6-acres or less, 100-FT from
adjoining parcels of more than 6-acres, and 200-FT from Agricultural and Forestal Districts
(more than 6-acres) and orchards (regardless of size). After consultation with Staff during the
pre-development of the application, the Applicant has proposed setbacks for the solar arrays
(panels) for this project will be a minimum of 100-feet (FT) from all external roads and property
lines, and 200-FT from Agricultural and Forestal Districts. Setbacks are noted and depicted on
Sheet 3 of the Concept Plan.
Decommissioning Plan:
A draft Expansion Area Decommissioning Plan has been included with the application materials,
satisfying 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 the bond updated every five (5) years ensuring
the amount specified in the bond cover the costs of equipment removal and land restoration.
Solar Siting Agreement:
The applicant has also included for consideration by 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. The solar siting agreement, while
not required by state code to include the Phase I project (CUP #05-20) does include
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considerations of impacts from Phase I in addition to those required for the Phase II project.
The draft “Solar Facility Siting Agreement” (dated October 21, 2021) proposes within thirty (30)
days of operation, the Applicant shall make a one-time payment to Frederick County in the
amount of $750,000 to be used by the County for critical infrastructure projects to improve
citizen quality of life, including but not limited to expanding educational opportunities, health
care (telehealth), and economic development, through significant investments in broadband
deployment throughout the County, or the payments may be used for any of the following
purposes: (a) to fund the capital improvement program (CIP) of the County (b) to meet needs of
the current fiscal budget of the County, (c) supplement or establish any fund for which the
County maintains a balance policy; (d) support broadband funding, all as permitted § 15.2-
2316.7. The siting agreement is memorialized in condition #4.
Other Permitting:
In addition to requirements contained in the County’s Zoning Ordinance, the Applicant is
concurrently pursuing 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/historic 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 the PBR process to
continue towards administrative approval of this project by DEQ.
PLANNING COMMISSION SUMMARY AND ACTION FROM OF 10/20/21 MEETING:
The Planning Commission held a public hearing on October 20, 2021. The primary discussion of
the Planning Commission was the proposed project conformance with the County’s 2035
Comprehensive Plan. Commissioners noted the project proposal maintains the rural character
and preserves the underlying land for future use as agricultural/open space. Commissioners
Oates & Jewell expressed concern if the project were not to be approved the alternative use may
be residential homes which would have a significant capital impact to the County and would see
the land permanently change from agriculture uses. Commissioner Thomas expressed concern
with the environmental impact panels and equipment installed may have on soil
composition/suitability for agriculture in the future.
Five (5) members of the public on the proposed application, including landowners who are
leasing land for the solar project proposal. The Planning Commission recommended approval
(Commissioners Triplet & Thomas – No; Commissioners Molden & Cline – Absent) of the
conditional use permit request and stated in the motion for approval that the project is in
accordance with the 2035 Comprehensive Plan.
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STAFF CONCLUSIONS FOR THE 11/10/21 BOARD OF SUPERVISORS MEETING:
This is a request for a Conditional Use Permit (CUP) to enable construction of a 430+/--acre 40-
to-60-megawatt (MW) utility-scale solar power generating facility (disturbed area) located on
properties totaling approximately 636.7+/--acres.
Should the Board of Supervisors find this use for a utility-scale solar power generating facility to
be appropriate, the Planning Commission recommend 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 Artic le 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 Phase II Expansion Area
Concept Plan, included with the CUP application, prepared by Greenway Engineering,
dated October 26, 2021.
3. Pursuant to Code of Virginia f §15.2-2241.2(B), the owner shall comply with the Exhibit
D: Expansion Area Decommissioning Plan, included with the CUP application, prepared
by Torch Clean Energy, dated September 2021, and shall update the Expansion Area
Decommissioning Plan every five (5) years
4. Pursuant to Code of Virginia § 15.2-2316.7, the owner shall comply with the written
Solar Siting Agreement, dated October 21, 2021, with Frederick County.
5. Batteries, for the purposes of mass storage of electricity that will eventually be
transferred to the grid, are prohibited as part of this CUP.
6. Access to the site shall be limited to one (1) entrance from Marlboro Road (Route 631)
via Strode McLeod Lane to be used for construction and general site access and the
entrance configuration shall be in general conformance with the Phase II Expansion Area
Concept Plan, included with the CUP application, prepared by Greenway Engineering,
dated October 26, 2021. Delivery of solar array panel construction materials will occur at
the site access entrance off of Marlboro Road using Strode McLeod Lane on Sheet 3 of
the Concept Plan. Solar array panel materials delivery laydown area will be restricted to
Tax Parcel 74-A-18.
7. A Phase 1 Archeological Survey will be completed and submitted to the Department of
Planning & Development prior to site plan approval. This survey should document the
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collection of historic structures on and around this development and determine if this area
would qualify as a rural historic district.
8. Pile-driving of poles for solar arrays during construction 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.
9. Any expansion or modification of this land use will require the approval of a new CUP.
Any recommendation for approval should also include a statement affirming that the proposed
solar facility is in substantial accord with the Comprehensive Plan.
Following this public hearing, a decision regarding this Conditional Use Permit application by
the Board of Supervisors would be appropriate. The Applicant should be prepared to
adequately address all concerns raised by the Board of Supervisors.