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State Votes on Non-Utility Electric Facilities in All Zones

The West Virginia House will vote this week on a bill that would allow non-utility electric generating facilities in any zoning district. While some say it would aid in economic development, others claim it takes away local control.

(TNS) — The West Virginia House of Delegates is scheduled to vote Tuesday on a bill that would allow non-utility electric generating facilities seeking or having been granted authorization from the state Public Service Commission in any zoning district.

The House of Delegates had sidelined House Bill 4553 on Feb. 15, a day after the House Judiciary Committee advanced it in a 10-9 vote. But the House moved it back to its active calendar Friday.

Supporters of the bill said it would be an economic development tool, while opponents said it wrests away too much control from local authorities.

The committee rejected an amendment proposed by Delegate Bryan Ward, R- Hardy, that would have excluded wind power projects from the electric generating facilities allowed to locate in any zoning district.

The House is slated to consider amendments aiming to limit the scope of the bill. One proposed by Delegate John Doyle, D- Jefferson, would limit electric generating facilities as a permitted use to counties that adopt partial or total zoning on or after July 1, 2024. Another amendment proposed by Doyle would limit exempt facilities to those that use coal, natural gas or nuclear power to generate electricity.

The Judiciary Committee advanced the bill after Jefferson County Commissioner Steve Stolipher lobbied the committee to approve it to override legal challenges to a proposed solar development in his county.

The proposed facility is a 92.5-megawatt solar generating facility to be located on 795 acres of agricultural land at a cost of $125 million.

The Public Service Commission granted Wild Hill Solar, LLC — a subsidiary of San Diego-based power producer EDF Renewables North America — a siting certificate for the proposed facility in February 2021 that the company applied for in November 2020.

But the project has failed to clear key legal hurdles and has been dogged by local opposition.

In October 2020, the Jefferson County Commission approved changes that were recommended by the Jefferson County Planning Commission to the county zoning ordinance that would allow the construction of solar farms in eight of the county's 12 zoning districts.

Area landowners challenged the changes in court, saying they weren't consistent with the county's comprehensive plan because they allowed a blanket "principal permitted use" categorization for solar farms rather than requiring approval for each project from a zoning appeals board. They dropped their challenge after the county commission assented to throw out the changes and return the matter to the planning commission.

In August 2021, Jefferson County Circuit Court Judge Debra McLaughlin struck down a zoning and land development ordinance amendment approved by the Jefferson County Commission four months earlier that again would have accepted solar facilities as a permitted use in all but four of the county's 12 zoning districts. McLaughlin sided with the challengers in ruling the amendment was not consistent with the county's comprehensive plan.

Stolipher said county officials had appealed the decision to the state Supreme Court of Appeals.

Comprehensive plans are planning documents that establish future land development goals. State code requires governing bodies find zoning ordinance amendments consistent with the adopted comprehensive plan.

Prior to approving the project's siting certificate, the Public Service Commission received comments from project opponents who cited concerns with the county commission's zoning ordinance process and possible damage to structures, as well as view and noise worries.

The invalidated amendment the Jefferson County Commission adopted in April included an option for a reduced setback with a buffer.

Stolipher said HB 4553 would moot all legal challenges to the county and planning commissions' proposed zoning change.

(c)2022 The Charleston Gazette (Charleston, W.Va.) Distributed by Tribune Content Agency, LLC.
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