HomeMy WebLinkAbout03-20 BOS Staff ReportCONDITIONAL USE PERMIT #03-20
Foxglove Solar, LLC
Staff Report for the Board of Supervisors
Prepared: June 24, 2020
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: 06/03/20 Recommended Approval
Board of Supervisors: 07/08/20 Pending
EXECUTIVE SUMMARY:
This is a request for a Conditional Use Permit (CUP) to enable construction of a 370-acres
utility-scale solar power generating facility (disturbed area) located on property totaling
approximately 668.5-acres.
Should the Board of Supervisors find this use for a utility-scale solar power generating facility to
be appropriate, the Planning Commission recommended approval of the permit with conditions
1-6 as outlined below. Staff would note that following the Planning Commission
recommendation on June 3rd, the Applicant made minor revisions to the application proposal to
better address Commissioner and public comments received at the meeting. The amended
conditions being proposed are listed following the conditions viewed by the Commission.
Planning Commission recommended conditions:
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 Preliminary Site Plans,
included with the CUP application, prepared by Timmons Group, dated April 17, 2020.
3. Buffers and screening shall be provided around the perimeter of the project in general
conformance with quantity of the proposed plantings depicted on Sheet 5 of the
Preliminary Site Plan, “Landscaping/Vegetative Screening Detail,” included with the
CUP application, prepared by Timmons Group, dated April 17, 2020. Buffers and
screening shall fulfill the landscape screening requirements of §165-203.02(B)(1) of the
Frederick County Zoning Ordinance.
232
Page 2
CUP #03-20 – Foxglove Solar, LLC
June 24, 2020
4. Prior to site plan approval, the owner shall enter into a written agreement with Frederick
County to decommission solar energy equipment, facilities, or devices pursuant to the
terms and conditions of §15.2-2241.2(B) of the Code of Virginia. The written agreement
shall be updated every five (5) years and in general conformance with the
Decommissioning Plan, included with the CUP application, prepared by Walsh, Colucci,
Lubeley & Walsh, revised April 21, 2020.
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. Any expansion or modification of this land use will require the approval of a new CUP.
The following conditions reflect the changes drafted by the Applicant following the June 3rd
Planning Commission meeting (proposed changes are shown in bold underline italics):
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 Preliminary Site Plans,
included with the CUP application, prepared by Timmons Group, revised June 19, 2020.
3. Buffers and screening shall be provided around the perimeter of the project in general
conformance with quantity of the proposed plantings depicted on Sheet 5 of the
Preliminary Site Plan, “Landscaping/Vegetative Screening Detail,” included with the
CUP application, prepared by Timmons Group, revised June 19, 2020. Buffers and
screening shall fulfill the landscape screening requirements of §165-203.02(B)(1) of the
Frederick County Zoning Ordinance. The landscape buffer plantings shall be
maintained in good health for the life of the project, up to 35 years. Landscaping and
buffering shall be installed along the property boundary on the east side of Hites Road
(Route 635), along the property boundary adjoining PINs 84-1-1, 84-3-2, 84-1-3, 84-1-
4, 84-1-5, 84-A-33, and 84-A-35, and along the property boundary on the north side of
Klines Mill Road (Route 633), within three (3) months of the commencement of
construction on the properties identified with PINs 84-A-50 and 84-A-29. An extension
of this time limit may be granted by the County upon the recommendation of a licensed
landscape architect or horticulturalist to ensure the planting occurs during optimal
seasonal conditions in order to improve the survivability of the required plantings,
233
Page 3
CUP #03-20 – Foxglove Solar, LLC
June 24, 2020
upon submission to the County of a letter from such licensed landscape architect or
horticulturalist, specifying the appropriate time frame for planting prior to the start of
construction, to accompany the site plan application project file.
4. Prior to site plan approval, the owner shall enter into a written agreement with Frederick
County to decommission solar energy equipment, facilities, or devices pursuant to the
terms and conditions of §15.2-2241.2(B) of the Code of Virginia. The written agreement
shall be updated every five (5) years and in general conformance with the
Decommissioning Plan, included with the CUP application, prepared by Walsh, Colucci,
Lubeley & Walsh, revised April 21, 2020.
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 entrances from Marlboro Road (Route 631), Clark
Road (Route 638), Klines Mill Road (Route 633) and Vaucluse Road (Route 638), and
be in general conformance with the Preliminary Site Plans, included with the CUP
application, prepared by Timmons Group, revised June 19, 2020. Entrance to the site
from Hites Road (Route 635) shall be prohibited.
7. Lay-down yards shall not be permitted to be accessed from or visible from Hites Road
(Route 635)
8. Pile-driving of poles for solar arrays during construction shall be limited to 7:00AM to
5:00PM Monday through Friday. All other construction activities are permitted
7:00AM to 7:00PM Monday through Friday and 7:00AM to 5:00PM 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.
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.
*Any recommendation for approval should also include a statement affirming that the
proposed solar facility is in substantial accord with the Comprehensive Plan.
234
Page 4
CUP #03-20 – Foxglove Solar, LLC
June 24, 2020
LOCATION: These properties are generally located south of Marlboro Road (Route 631), east
and west of Hites Road (Route 625), north of Klines Mill Road (Route 633), north of Clark Road
(Route 638) and south of Vaucluse Road (Route 638).
MAGISTERIAL DISTRICT: Back Creek
PROPERTY ID NUMBERS: 84-A-40, 84-A-40A, 84-A-50, 84-A-29, 73-A-21, & 84-A-39
PROPERTY ZONING & PRESENT USE:
Zoned: RA (Rural Areas)
Land Use: Agricultural
Agricultural and Forestal District (South Frederick)
Vacant
ADJOINING PROPERTY ZONING & PRESENT USE:
North: RA (Rural Areas) Use: Agricultural/Residential
South: RA (Rural Areas) Use: Agricultural/Residential
East: RA (Rural Areas) Use: Agricultural/Residential/Vacant
West: RA (Rural Areas) Use: Agricultural/Residential
PROPOSED USE: This is a request for a Conditional Use Permit (CUP) to enable construction
of a 370-acres utility-scale solar power generating facility (disturbed area) located on property
totaling approximately 668.5-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), Route 625 (Hites Road), and the VDOT facilities
providing access to the properties. Locations have been identified for a low-volume commercial
entrance, on Route 631 and Route 625. The new entrances will need to meet VDOT standards
for the proposed use. Should the use ever expand in the future, the entran ces will need to be
reviewed to determine if additional improvements may be required.
See comment letter dated March 31, 2020.
Frederick County Fire Marshal:
Plans approved by Fire Marshal, Frederick County.
See comment letter dated March 31, 2020.
235
Page 5
CUP #03-20 – Foxglove Solar, LLC
June 24, 2020
Frederick County Inspections:
The utility scale solar power generating facilities conditional use permit for installation of solar
array 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 March 6, 2020.
Frederick County Public Works:
A comprehensive review shall be performed at the time of site plan submission. All stormwater
and E & S shall be designed in accordance with County Code Chapter 143 and VA DEQ
requirements.
See comment letter dated March 23, 2020.
Historic Resources Advisory Board (HRAB):
The Virginia Department of Historic Resources identified many historic properties in the vicinity;
three of which are located on the site:
o Miller House (34-0254)
o Woodbine Farm (34-5075)
o Farmhouse, Route 633 (34-0429)
In addition, a portion of the Cedar Creek Battlefield is located south of the properties with a
small portion identified on the southernmost property, PIN #84-A-29.
After reviewing the information provided, the Historic Resources Advisory Board (HRAB)
recommended approval of the CUP with the following comments:
• The Applicant should not disturb any structures or ruins that are present on the properties.
There are a number of barns, outbuildings, the Miller House ruins, a cemetery, and the
overgrown Woodbine Farm main house. These structures should be protected from any
disturbance from this project.
• No solar structures should be placed on the portion of the property that is located within the
limits of the Cedar Creek Battlefield.
• A Phase 1 Archeological Survey will be completed as part of the permitting of this project.
236
Page 6
CUP #03-20 – Foxglove Solar, LLC
June 24, 2020
• 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.
See comment letter dated May 22, 2020.
Planning and Zoning:
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 application proposes use of approximately 668.5-acres of rural area property, primarily used
for agriculture, to generate 75 megawatts (MWS) or photovoltaic (solar) electricity.
Approximately 370.1-acres of the subject parcels will be utilized for the installation of rows of
ground-mounted photovoltaic modules, commonly known as solar panels, other necessary
equipment for facility operations, access paths, fencing and landscaping. Most of the application
acreage is also within the South Frederick Agricultural and Forestal District. Ground disturbed
will be replanted with native turf grass that will preserve the soil, prevent erosion, and improve
water quality. 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 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 application states the electricity generated by capturing sunlight
will create quiet, clean, and affordable electricity for Frederick County and elsewhere in
Virginia.
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.
The 2035 Comprehensive Plan envisions this area of the County to remain primarily rural in
nature and for agricultural land to be preserved for future generations. The project is generally
compatible with the Comprehensive Plan, with the rural character of the area, and with the
adjoining agricultural and residential uses. The preservation of the underlying land maintains the
ability for agricultural uses in the future. As stated in the application, the use is highly passive
with limited noise, lighting, and traffic during operations.
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
237
Page 7
CUP #03-20 – Foxglove Solar, LLC
June 24, 2020
200-FT from Agricultural and Forestal Districts (more than 6-acres) and orchards (regardless of
size). The required setbacks are depicted on the Preliminary Site Plans included with the
application. The Applicant has also proposed buffering and screening around the perimeter of the
property to shield view of the facility from adjacent roadways, residences, and existing
agritourism operations. A Visual Simulation, included with the application materials, depicts the
anticipated screening as viewed from adjacent roadways at various intervals.
Finally, 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 removed, ensuring future viability of the land to resume agricultural
operations. Further, proposed condition of approval #4 ensures that Frederick County would
maintain a bond that is updated every five (5) years keeping it up to date.
In addition to requirements contained in the Zoning Ordinance, the Applicant is concurrently
pursuing a “Permit-by-Rule” (PBR) 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.
STAFF CONCLUSIONS FOR THE 06/03/20 PLANNING COMMISSION MEETING:
This is a request for a Conditional Use Permit (CUP) to enable construction of a 370-acres
utility-scale solar power generating facility (disturbed area) located on property totaling
approximately 668.5-acres.
Should the Planning Commission find this use for a utility-scale solar power generating facility
to be appropriate, Staff would suggest 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 Preliminary Site Plans,
included with the CUP application, prepared by Timmons Group, dated April 17, 2020.
238
Page 8
CUP #03-20 – Foxglove Solar, LLC
June 24, 2020
3. Buffers and screening shall be provided around the perimeter of the project in general
conformance with quantity of the proposed plantings depicted on Sheet 5 of the
Preliminary Site Plan, “Landscaping/Vegetative Screening Detail,” included with the
CUP application, prepared by Timmons Group, dated April 17, 2020. Buffers and
screening shall fulfill the landscape screening requirements of §165-203.02(B)(1) of the
Frederick County Zoning Ordinance.
4. Prior to site plan approval, the owner shall enter into a written agreement with Frederick
County to decommission solar energy equipment, facilities, or devices pursuant to the
terms and conditions of §15.2-2241.2(B) of the Code of Virginia. The written agreement
shall be updated every five (5) years and in general conformance with the
Decommissioning Plan, included with the CUP application, prepared by Walsh, Colucci,
Lubeley & Walsh, revised April 21, 2020.
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. Any expansion or modification of this land use will require the approval of a new CUP.
PLANNING COMMISSION SUMMARY AND ACTION FOR THE 06/03/20 MEETING:
The Planning Commission held a public hearing on June 3rd. Following a staff presentation, the
Applicant provided an overview/summary of the project and answered Planning Commissioner
questions regarding leaching of toxic chemicals, noting there is no ability for leaching from the
solar panels. Additionally, the Applicant clarified points regarding site access, noting that the
proposed location on the Preliminary Site Plans submitted with the application were conceptual,
and construction and project entrances would be reviewed and approved by County staff and
VDOT during the more formal site planning process if their application were to be approved.
Fourteen (14) members of the public spoke on the proposed application. Two (2) speakers voiced
support for the project, including the property owners, who expressed their desire to continue to
own their property and use it for “agricultural” while also diversifying their source of income.
Twelve (12) members of the public spoke in opposition to the proposed project citing the
following concerns: reduction in property values, disturbance of viewshed/rural landscape,
impact to local wildlife habitat and water quality, construction traffic, noise and dust,
construction/project access (specifically from Hites Road), potential impact to environment and
toxic leaching of chemicals, fencing, setbacks and that the proposed landscaping may not create
a sufficient buffer.
Following the public hearing, the Planning Commission discussed the merits and concerns of the
239
Page 9
CUP #03-20 – Foxglove Solar, LLC
June 24, 2020
application. Commissioner Oates stated that during the Planning Commission discussion of the
ordinance amendment to add “utility-scale solar power generating facilitates” there was support
among the Planning Commission to allow solar farms “by-right” similar to other utilities, and
that if this application were not approved there were far more impactful uses that could go on the
property such as noxious agricultural uses, or up to 135 residential homes (subdivision).
Commissioner Oates concluded stating this was a “win-win” for the County, as there are no
capital impacts of such a facility and it also generates significant tax revenue beyond what
currently exists for those properties. Commissioners Thomas and Morrison expressed concern
with the proposed entrances, especially during construction, and hoped that the Applicant would
address their concerns and concerns raised during the public hearing be addressed during the site
plan.
The Planning Commission voted 11-0-1-1 (Commissioner Mohn – Absent; Commissioner
Marston – Abstaining) to recommend approval of the proposed CUP by the Board of
Supervisors.
EXECUTIVE SUMMARY AND PLANNING COMMISSION RECOMMENDATION
FOR THE 07/08/20 MEETING:
This is a request for a Conditional Use Permit (CUP) to enable construction of a 370-acres
utility-scale solar power generating facility (disturbed area) located on property totaling
approximately 668.5-acres.
Since the Planning Commission meeting on June 3rd, the Applicant has made a few minor
revisions to their application to better address concerns raised by adjoining property owners and
comments made by the Planning Commission. These changes include:
• Increasing the setback along the property frontage along Hites Road from 60-FT to 75-
FT. Staff notes that when including the width of the right-of-way it effectively creates a
100-FT setback from the residential properties across Hites Road to the west. This change
is reflected on the revised Preliminary Site Plans revised June 19, 2020 (Sheets 2 & 4);
• A commitment to maintain the landscape buffer for a period of 35-years (or the life of the
project), and to install all landscaping along Hites Road and Klines Mill Road within 3-
months of the start of construction. This change is reflected in the amended Conditions of
Approval (#3) below;
• Restricting site access (including for construction) to Marlboro Road, Vaucluse Road,
Clark Road and/or Klines Mill Road and to prohibit access to the site from Hites Road.
Restricting siting of a lay-down yard from accessing and view from Hites Road. These
changes are reflected in the amended Conditions of Approval (#6 & 7) below;
• Limiting hours of construction for pile-driving of poles for solar arrays. This change is
240
Page 10
CUP #03-20 – Foxglove Solar, LLC
June 24, 2020
reflected in the amended Conditions of Approval # (8); and
• If feasible, to install woven wire fence instead of chai n link fence. This change is
reflected in notes contained in the Preliminary Site Plans revised June 19, 2020 (Sheets
2, 3, 4, & 5 under “Legend”).
Should the Board of Supervisors find this use for a utility-scale solar power generating facility to
be appropriate, the following (amended) Conditions of Approval are recommended (additional
language reflecting changes are highlighted in bold, italics and underline):
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 Preliminary Site Plans,
included with the CUP application, prepared by Timmons Group, revised June 19, 2020.
3. Buffers and screening shall be provided around the perimeter of the project in general
conformance with quantity of the proposed plantings depicted on Sheet 5 of the
Preliminary Site Plan, “Landscaping/Vegetative Screening Detail,” included with the
CUP application, prepared by Timmons Group, revised June 19, 2020. Buffers and
screening shall fulfill the landscape screening requirements of §165-203.02(B)(1) of the
Frederick County Zoning Ordinance. The landscape buffer plantings shall be
maintained in good health for the life of the project, up to 35 years. Landscaping and
buffering shall be installed along the property boundary on the east side of Hites Road
(Route 635), along the property boundary adjoining PINs 84-1-1, 84-3-2, 84-1-3, 84-1-
4, 84-1-5, 84-A-33, and 84-A-35, and along the property boundary on the north side of
Klines Mill Road (Route 633), within three (3) months of the commencement of
construction on the properties identified with PINs 84-A-50 and 84-A-29. An extension
of this time limit may be granted by the County upon the recommendation of a licensed
landscape architect or horticulturalist to ensure the planting occurs during optimal
seasonal conditions in order to improve the survivability of the required plantings,
upon submission to the County of a letter from such licensed landscape architect or
horticulturalist, specifying the appropriate time frame for planting prior to the start of
construction, to accompany the site plan application project file.
4. Prior to site plan approval, the owner shall enter into a written agreement with Frederick
County to decommission solar energy equipment, facilities, or devices pursuant to the
terms and conditions of §15.2-2241.2(B) of the Code of Virginia. The written agreement
shall be updated every five (5) years and in general conformance with the
Decommissioning Plan, included with the CUP application, prepared by Walsh, Colucci,
241
Page 11
CUP #03-20 – Foxglove Solar, LLC
June 24, 2020
Lubeley & Walsh, revised April 21, 2020.
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 entrances from Marlboro Road (Route 631), Clark
Road (Route 638), Klines Mill Road (Route 633) and Vaucluse Road (Route 638), and
be in general conformance with the Preliminary Site Plans, included with the CUP
application, prepared by Timmons Group, revised June 19, 2020. Entrance to the site
from Hites Road (Route 635) shall be prohibited.
7. Lay-down yards shall not be permitted to be accessed from or visible from Hites Road
(Route 635).
8. Pile-driving of poles for solar arrays during construction shall be limited to 7:00AM to
5:00PM Monday through Friday. All other construction activities are permitted
7:00AM to 7:00PM Monday through Friday and 7:00AM to 5:00PM 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.
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.
Any recommendation for approval should also include a statement affirming that the proposed
solar facility is in substantial accord with the Comprehensive Plan.
242