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Supervisors sued for $7.5M for denying third solar facility

The Winchester Star

WINCHESTER — Hollow Road Solar LLC, National Fruit Orchards Inc. and Diane Holmes are suing the Frederick County Board of Supervisors for denying a conditional-use permit for a utility-scale solar power generating facility in Gore.

The lawsuit, filed in Frederick County Circuit Court last month, seeks a court order for the supervisors to approve the CUP. The lawsuit also states the plaintiffs are entitled to a redress in the amount of $7.5 million.

On March 10, the supervisors voted 6-1 to deny the CUP. Had the permit been approved, it would have been the third solar facility approved by the supervisors within the past year. Supervisors J. Douglas McCarthy, Shawn Graber, Blaine Dunn, Bob Wells, David Stegmaier and Judith McCann-Slaughter voted against the permit. Board Chairman Charles DeHaven Jr. voted in favor of it.

Several supervisors voiced concerns about approving a third solar facility without seeing the impact of the two solar facilities they already approved. Gainesboro Supervisor McCarthy said he approved the two solar facility CUPs in 2020 because he felt they would give the farmers who own the land an additional source of income. In contrast, he viewed the Gore project as more commercial.

Hollow Road Solar, a subsidiary of Leesburg-based Blue Ridge Energy Holdings LLC, is a developer of utility-scale solar power generating facilities. It wanted to construct a solar facility on three properties totaling about 326 acres in the Gore area. National Fruit Orchards, a family-owned apple growing and fruit products business headquartered in Winchester, and Diane Holmes, trustee for Cheyenne Faith Fender, own the properties.

The land, south of Parishville Road (Route 610) and south of the cul-du-sac of Anchorage Lane, is zoned Rural Areas (RA). Just over 80 acres would have been used to install solar panels, equipment for facility operations, a transmission substation, access paths, fencing and landscaping. The facility would have been able to generate up to 20 megawatts (MW) of solar electricity.

The lawsuit states the board's denial of the CUP was "arbitrary, capricious and unreasonable” and maintains there was no evidence that the proposed solar farm did not satisfy the standards set out in the county’s zoning ordinance. It also maintains that the denial was based more upon the cumulative number of solar farm approvals in the county rather than the application itself. The lawsuit states the board's decision “was based on improper considerations and wholly without regard to good zoning practices.”

The lawsuit further maintains that the denial of the CUP was discriminatory and that the application was treated differently from those submitted by Torch Clean Energy and Urban Grid, which received approval from the supervisors last year.

The lawsuit states the board’s denial was unlawful and ultra vires (beyond one’s legal authority) and not properly based on permissible land-use considerations within the scope of its delegated authority under Virginia’s Dillon Rule.

Pursuant to section 15.2-2208.1 of the state code, the lawsuit states the plaintiffs' CUP must be remanded to the Board of Supervisors for approval without unconstitutional conditions.

County Attorney Roderick Williams declined to comment on the lawsuit.


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