On Monday, March 16, three members of the Virginians for Responsible Energy (VRE) met with Botetourt County Director of Community Development and Zoning Administrator Nicole Pendleton. In this meeting, the VRE members provided suggested text changes to the county’s wind energy ordinance to better protect county citizens. The members left hardcopy and digital documentation supporting their suggested changes to aid the planning staff in reviewing and considering text changes.
After seeing the notice of public hearing on May 11 for considering Apex Clean Energy’s requested changes to the county’s wind energy ordinance and Special Exception Permit (SEP), we contacted Ms. Pendleton to find out whether any of VRE’s suggested changes have been considered. This is the county’s response:
“Staff will be presenting recommendations for amendments to the ordinance to the Planning Commission in May as they are advertised and shown on our website. After doing a review of the entire ordinance, staff made recommendations for the changes as advertised. These recommendations are based on the fact that the ordinance is structured to give significant oversight to the Board to impose conditions to address potential impacts that it felt should be addressed on a project-specific basis.
“As we discussed in March, the packet of proposed amendments and related information that you provided was helpful and informative. Many of the topics that we discussed in our series of meetings were forwarded on to Apex and to Antares for further discussion. While some of your suggestions mirrored ordinances in other states, there were several components that, as we discussed the Planning Commission does not have authority granted to them by the state of Virginia to regulate, and several outside of the realm of zoning itself. We are now turning our focus to fine-tune the recommended conditions and background information for our staff report to the Planning Commission, with the assistance of the consultant.
“Once the report is finalized, we will share that online so that you and others are able to respond and provide any desired public comment. Detail on turbine and blade disposal, sound and shadow flicker, and further review of decommissioning studies were three components of the code, and specifically the Rocky Forge application, that our discussions and your information, provided insight and suggestions toward, and we thank you for that.
“The Planning Commission may make recommendations on the amendments or the conditions associated with the revised application for Rocky Forge at their May meeting.”
VRE responded early on April 27 with questions and concerns:
1) In your email you state: “Staff will be presenting recommendations for amendments to the ordinance to the Planning Commission in May as they are advertised and shown on our website. After doing a review of the entire ordinance, staff made recommendations for the changes as advertised.”
What we see on your website (https://web.botetourtva.gov/bacs/planning-commission/ in the Agendas, Minutes, and Documents section) and advertised are the changes that Apex has requested. We do not see any other changes. So if we correctly understand your statement, none of the suggested changes made by Virginians for Responsible Energy were deemed suitable for updating the Wind Ordinance, and you and your staff are recommending that only the changes wanted by Apex should be made. This is stunning that the Planning Department appears to be willing to accept everything that Apex wants, without limit.
2) To expound on the previous item, why would the Planning Department think it is to the benefit of the county citizens and administration to grant an unlimited lifetime for a special exception permit for industrial wind projects? Changes in technology, research into the impacts of large wind facilities, etc. would be rational reasons why such a permit should have a limited lifetime. The current Wind Ordinance has a five-year time limit, which is appropriate. What are the reasons to make it perpetual?
3) You also state, “These recommendations are based on the fact that the ordinance is structured to give significant oversight to the Board to impose conditions to address potential impacts that it felt should be addressed on a project-specific basis.” We understand that to mean that those conditions are part of the Special Exception Permit. When we compare the original January 11, 2016 SEP conditions with the draft 2020 SEP conditions, ignoring the differences for dates and number of turbines, we only see two minor additions. One is adding a condition that requires an SEP amendment (vi. relocating or adding a MET tower). The other is in section 15 (Mitigation), adding item “e. If, after receiving the Project contact’s response to such complaint, the zoning administrator determines the complaint is founded and as such, constitutes a violation of the conditions of this Special Exception Permit, or the zoning ordinance, the Developer shall remedy any such nonconformity within a reasonable period of time as determined by the zoning administrator.”
These are important additions, but given what was submitted as suggested changes to the ordinance, these two additions do not appear to take advantage of the ability to “give significant oversight to the Board to impose conditions to address potential impacts that it felt should be addressed on a project-specific basis.”
4) You state, “Many of the topics that we discussed in our series of meetings were forwarded on to Apex and to Antares for further discussion.” Please explain to us why you would need to get input from Apex as to whether a particular requirement of the ordinance is acceptable to them. You are supposed to be working to protect the citizens of Botetourt County and not to make it easier or more acceptable for an applicant.
Two aspects of that statement are:
a. This situation is analogous to one where a large commercial dog breeder wants to set up shop in Botetourt County with the promise of jobs and revenue. The county then chooses this time to examine and make changes to its ordinances regarding animal breeding operations. If consultation were needed the county would consult with USDA or American Veterinary Medical Associations for recommendations on best practices. How would discussions with the dog breeder for advice, input, or review of proposed ordinance changes inform ordinance changes in this case? What if the breeder’s best practices were inconsistent with USDA and AVMA guidelines?
b. When we had our meeting to discuss what we had submitted, you said that you were interested in trying to “generalize” wind ordinance requirements to apply to land use. What input did Apex provide that helped you in that endeavor?
5) You state that, “While some of your suggestions mirrored ordinances in other states, there were several components that, as we discussed the Planning Commission does not have authority granted to them by the state of Virginia to regulate, and several outside of the realm of zoning itself.” In our research of the Dillon Rule, it is obvious that what laws a local government is and is not allowed to enact is not straightforward. And while perhaps part of a suggested change may appear to violate the Dillon Rule, it does not mean that the entire change would be invalidated if that part were removed.
Also, it appears that there is a rather broad statement in the Code of Virginia 67-103 “Role of local governments in achieving objectives of the Commonwealth Energy Policy” regarding what requirements a locality can place on the siting of a wind project. And in addition, Code of Virginia Title 15.2 Chapter 22 in 15.2.2295.1 gives additional permission for local regulation of “protected mountain ridges,” and the site for Rocky Forge is, in fact, a protected mountain ridge. Did you solicit legal opinions from the county attorney regarding the changes that we suggested? Please detail what suggested changes were determined to violate the Dillon Rule or fall outside of what a Wind Ordinance should contain.
6) Are all of the documents that you have provided to the Planning Commission included on your website (https://web.botetourtva.gov/bacs/planning-commission/)? Will other documents be provided to the commission between now and the May 11 meeting, and if so will they also be posted on the website?
The county’s response to this on Monday, April 27 was they “hope to be able to respond by the end of the week.” This did not happen. This is a major issue of county-wide interest and impact. In the interest of accountability and transparency, the VRE expects to see the county’s response published in The Herald next week.