Commission considers reviews solar facility rules




By Miles Layton
Staff Writer

Wednesday, April 24, 2019

Easter Sunday, the Rev. Malone Gilliam closed his sermon with a few bars from “Here comes the sun” – a timeless song from George Harrison, that quiet Beatle.

Though Gilliam was preaching about that moment when the morning's first rays of the sunshine hit the soul upon Christ's sacrifice to move the ball forward for mankind, the lyrics also can conjure up images of solar energy – a topic the county's Planning Board will be considering in the weeks ahead.

For those who have forgotten the song, here's a quick tidbit to lead into this story about solar farms and local government.

Little darling, it's been a long cold lonely winter

Little darling, it feels like years since it's been here

Here comes the sun

Here comes the sun, and I say

It's all right

On that note, the county commission thinks “it is alright” for the Planning Board to review changes sought by county commissioner Bob Kirby regarding the county's solar ordinance. Due to space constraints in the print edition, those changes are included in a web version of the story that is available within the Daily Advance's website.

First, let's shed of some light on the subject with a quick recap of this hot issue.

In 2017, commissioners imposed a 120-day moratorium on any new solar development in the county to give the board time to study the county’s current ordinance and recommend potential changes. The public became familiar with setback distances and how decommissioning might work if the clouds ever blocked out the sunshine coming from federally subsidies needed to power these solar projects.

Changes to the solar ordinance were discussed during long meetings by the Planning Board and County Commission before the final ordinance was adopted in August 2017.

In February, the county commission approved a conditional use permit for Ryland Road Solar, a SunEnergy1 company, to develop the solar farm at 3448 Virginia Road, north of the Ryland Road intersection in Tyner. Ryland Road Solar is proposing to build the solar farm on 65 acres of an approximately 106-acre tract.

Later that month, the Planning Board approved a SunEnergy1 company's application to build a solar farm in the county – the second solar project to set its sites on Chowan County in 2019. Gliden Solar, a division of SunEnergy1, seeks a conditional-use permit to develop a 5-megawatt solar farm on 414 Sign Pine Road. Gliden is proposing to build the facility on 56 acres of an 82-acre tract.

The county commission must decide whether to approve the permit – a discussion that is expected to occur in the near future. Then, pending state and federal approvals, the company can pursue its plans to build the solar farm.

That brings our readers to the present where setbacks for solar farms are among other suggested changes to the ordinance as drafted by Kirby and sent by the county commission on April 15 for review by the Planning Board within the weeks ahead. The commission seeks to review the Planning Board’s work in June.  

“I have drafted what I think is at least a starting point for an ordinance,” Kirby said. “I don't profess to be an authority on this, I'm just trying to serve the citizens. Of course, any and all discussion is more than welcome.”

Kirby’s draft suggests a 1,500 foot setback so that Chowan County's major roadways would not suffer the same fate as neighboring counties where solar farms are quite visible to motorists traveling north along U.S. 17 en route to Elizabeth City.

Commissioner Larry McLaughlin called the draft changes “a good start” and suggested wider buffer zones with a more precise formula as to the fauna needed to screen the solar farms from view.

“The people I talk with about solar energy; there's people who think it is great, but you don't have to look at it,” he said. “Then there's those people who don't care for it all. My point is the compromise position I see that is best for Chowan County is that we make sure that these things are out of sight.”

Commissioner Greg Bonner said while he agrees some changes may be needed, the ordinance shouldn't deter economic development.

“We don't want creates guidelines that are so strict that it actually discourages business – solar being interested in being here,” he said.

While Bonner said he supports Kirby's efforts, he questioned a 1,500 foot setback with a 50 foot buffer, “That just doesn't sound reasonable to me.”

Kirby said the length of the setback was needed to better protect North Carolina's scenic byways and those roads designated as historical Albemarle highways in addition to keeping any solar farms away from places listed with the National Register of Historic Places, such as the Rosenwald School. However, Kirby conceded that the 1,500 foot setback was a starting point that could be raised or lowered. 

McLaughlin added, “Having setbacks along those historic highways is a good thing, but not everyone lives on an historical Albemarle right-of-way. A lot of people on Ryland Road and little country roads don't want to look at that glass and metal, pure and simple. So that's why I advocate for stern measures to make sure that these places are out of site.”

Commissioner Lawrence Ellis wants the Planning Board to review changes that would put decommissioning at the start of project rather than at the back end.

“I've said it before and I'll say it again. I think decommissioning should be considered up front as opposed to when the project is on the path to decommission. We need to know exactly what's going to happen with decommissioning up front and have it in writing such that there can be no modifications or changes – you will adhere to what's agreed to at the beginning of the project.”

Commission President Patti Kersey added, “What I've heard from commissioners who have spoken about it is that the decommissioning needs to get some teeth in it. I think most of the folks who commented on that were in agreement with that. Mr. Kirby has provided a quite 'beefing up' so we'll see what the Planning Board thinks about that.”

Commissioner Don Faircloth offered a few thoughts about the proposal being sent to the Planning Board. Faircloth said as to the fauna within a buffer zone, he favors evergreens trees. Another note, Faircloth expressed concern about requiring an monitoring wells be placed on site at solar farms that would alert anyone as to hazardous materials that may arise. He noted that monitoring is not a requirement for businesses in the county that may use hazardous materials. Faircloth said county dump sites do not have such monitoring systems in place. Faircloth said while he doesn't want pollution, it's not fair to legislate a standard aimed at just one business, but not others.

“I don't want to back ourselves into a corner where we have to start requiring other businesses to have to put these wells in,” Faircloth said.

Kirby noted the long hearings in the past have detailed the pitfalls of solar farms, so he inserted within the proposal language about monitoring wells. Kirby said based on his experiences as a business owner, he understands Faircloth’s position.  

Kirby said the Planning Board and commission needs to consider all of these matters, perhaps go in a different direction if these folks so decide, but at least everyone agrees that this is a good starting point to begin the process of changing the ordinance.

Below is a Kirby’s proposal for review by the Planning Board:

8.108 Solar Energy Facility

A Solar Energy Facility developed as a principal use shall require issuance of a conditional use permit and will be permitted in accordance with Table 5-1, subject to the following requirements. This section shall only include those facilities whose primary purpose is to sell electricity to be used off site. For all proposed developments falling within the defined Highway Corridor Overlay District, the standards outlined under Section 7.03 shall also apply.

A. Purposes and Objectives

The purposes and objectives for which this chapter is passed are as follows:

1. To protect and enhance the economic vitality and interests of the citizens and residents of Chowan County.

2. To facilitate the siting, construction, installation, and operation of solar energy facilities in Chowan County in a manner that promotes economic development and ensures the protection of the health, safety and general welfare of the citizens while also avoiding adverse impacts to adjacent land uses and property owners and that is consistent with the Chowan County & Town of Edenton Joint Land Use Plan.

3. To preserve the rich history, dignity, viewshed, and aesthetic quality of the environment in Chowan County.

B. Setbacks

All structures, including fences, berms, panel arrays, and non-public utility owned electrical components, associated with any Solar Energy Facility development shall meet the following minimum setbacks:

1. A minimum one hundred feet (100’) setback as measured from all non-participating property lines and street right-of-way lines, unless further setback is required through any state or federal permitting process.

2. A minimum two hundred and fifty feet (250’) setback along any non-participating property line that is shared with a property that is currently used for residential purposes.

3. A minimum five-hundred feet (500’) setback from Mean High Water (MHW) of the Albemarle Sound, Edenton Bay, the Chowan River, and the Yeopim River.

4. A minimum one-thousand five-hundred feet (1,500’) setback from the designated right-of-way of the route designated as NC Scenic Byway – Edenton-Windsor Loop.

5. A minimum one-thousand five-hundred feet (1,500’) setback from the designated right-of-way of any road designated as a portion of the Historic Albemarle Tour, or Historic Albemarle Highway.

6. A minimum one-thousand five-hundred feet (1,500’) setback from the property lines of any NC National Register, NC Study List, or NC Determined Eligible structure or site as listed by the North Carolina Natural Heritage Program.

7. A minimum one-thousand five-hundred feet (1,500’) setback from the property lines of any Rosenwald School as listed by the North Carolina State Historic Preservation Office.

8. A minimum three-thousand feet (3,000’) setback from all structures, including fences, berms, panel arrays, and non-public utility owned electrical components, associated with any adjacent Solar Energy Facility.

C. Height

Fifteen feet (15’) maximum.

D. Size

The maximum nameplate rating for a single Solar Energy Facility shall be not more than 7.5 Megawatts (MW).

E. Visibility

1. Solar Energy Facilities must meet the requirements of the following along all property lines adjacent to properties currently used for residential purposes and public rights-of-way; unless existing mature-growth vegetative screening exists on the subject property.

2. Existing mature-growth vegetative screening must be at least twenty-five feet (25’) in depth and include both canopy and understory trees.

3. For all other areas, Solar Energy Facility developments shall install a minimum twenty-five feet (25’) wide vegetative buffer with the following requirements:

a. A row of evergreens which are a minimum of six feet (6’) in height at the time of planting and are spaced not more than eight feet (8’) apart which at maturity will form an intermittent visual barrier to a height of fifteen feet. Evergreens shall be a species native to Eastern North Carolina; and

b. A separate row of shrubs that are dense, low-lying, continuous, and planted to visually fill-in the low-lying gaps between the trunks of the evergreens. Shrubs shall be a species native to Eastern North Carolina; and

c. A minimum six feet (6’) tall fence or wall that is constructed in a durable fashion of brick, vinyl, stone, other masonry materials, chain link, or wood posts and planks or any combination of the previously mentioned materials. The finished side of the fence shall face the abutting property.

4. These standards will be enforced regardless of the facilities’ proximity to adjacent structures, waterways, or roadways.

5. A performance guarantee in the amount of 115% of the cost of the landscaping used for screening shall be submitted prior to the issuance of a building permit and remain valid until 100% opacity is achieved. Should 100% opacity not be reached within 5 years of building permit issuance, the county will draw upon the performance guarantee and install required supplemental landscaping.

F. Development Plan

1. The Solar Energy Facility shall be developed in accordance with an approved major site plan that includes the following information:

a. The location of the Solar Energy Facility, including the arrangement of any existing or proposed buildings, structures or panels.

b. The distance from any proposed Solar Energy Facility building, structure, panels, and fence to the surrounding property lines.

c. The location of any required buffers as outlined in Section 8.108(E)

d. Existing or proposed signs, fencing, lighting, construction and permanent parking areas, driveways, landscaping, vegetative screening, or required buffers.

e. Horizontal and vertical elevation to-scale drawings with dimensions.

f. Certification that all panels have passed UL 1703 regarding PV module safety.

g. Approval from access controlling agencies for street access (i.e. NCDOT).

2. The Solar Energy Facility shall designate 30% of the total land area in one or a combination of the following plans:

a.i.a. Approved plan from the North Carolina Wildlife Resources Commission, Habitat Conservation Division, designating 30% of the total land area of the SEF as an acceptable native pollinator habitat; or,

a.i.b. An annual cultivation plan detailing crops and harvest schedule should at least 30% of the total land area of the Solar Energy Facility remain active farmland.

G. Environmental Concerns

1. Appropriate ground cover/grass is required for soil stabilization and shall be maintained in a manner that does not create a fire hazard. Grass and weeds not associated with the pollinator habitat shall not exceed two feet (2’) at any time.

2. Ground water monitoring wells

a. Shall be a minimum of 20’ deep.

b. Monitoring wells shall be installed prior to construction of any of the Solar Energy Facility components.

c. Monitoring wells shall be located near the center of the site and along either the north and south or east and west exterior property lines at approximately the lowest ground elevation point on the respective property line.

d. Testing data prepared by a laboratory certified by the North Carolina Department of Health and Human Services to analyze water subject to the regulations under the North Carolina Drinking Water Act shall be submitted prior to construction of the Solar Energy Facility. If evidence of contaminants (from list in Section 8.108 G.2.e.) is shown, another test shall be performed every year until no contaminants are detected. If no contaminants are detected, a follow up test will be conducted in two years. If no contaminants are found with the first two tests, a test will be conducted every five (5) years and then at decommissioning. All tests must be submitted to the Planning Department until the Solar Energy Facility is decommissioned.

e. Testing data shall show compliance with the NC Department of Health and Human Services Private Well Inorganic Chemical Contaminants standards for the following contaminants:

e.i.1. Arsenic

e.i.2. Barium

e.i.3. Cadmium

e.i.4. Chromium

e.i.5. Copper

e.i.6. Iron

e.i.7. Lead

e.i.8. Magnesium

e.i.9. Manganese

e.i.10. Mercury

e.i.11. Nitrate/Nitrite

e.i.12. Selenium

e.i.13. Silver

e.i.14. Zinc

f. The Chowan County Board of Commissioners may require testing for other contaminants.

H. Solar Energy Facility Impact Analysis

1. As part of an application, a Solar Energy Facility Impact Analysis shall be submitted and contain the following information:

a. General project description

b. Construction Activity Plan:

b.1.1. Amount of land disturbance

b.1.2. Land surface clearing and grading plan

b.1.3. Energy, water, and material needs

b.1.4. Fencing and lighting needs

b.1.5. Waste stream management plan

b.1.6. Construction work force and timeframe

b.1.7. Protection plans for soil, disturbed areas, and surface water

c. Operational Plan

c.1.1. Maintenance activities and schedule

c.1.2. Vegetation management plan

c.1.3. Protection plans for soil, disturbed areas, and surface water

d. Impacts and Resources affected

d.1. CAMA jurisdictional areas

d.2. USACE designated wetlands

d.3. Geology

d.4. Soils

d.5. Air Quality

d.6. Noise

d.7. Water Resources

d.8. Ecology

d.9. Land Use

d.10. Water Management

d.11. Health and safety

e. Decommissioning Plan as outlined in this Section

I. Discontinued Use and Decommissioning

1. Decommissioning shall include removal of solar collectors, cabling, electrical components, and any other Solar Energy Facility associated facilities, grading, and re-seeding disturbed earth from the project.

2. A decommissioning plan, certified by a North Carolina licensed professional engineer is required and shall include the following:

a. A description of any lease or other agreement with all landowners regarding decommissioning

b. The identification of the party responsible for decommissioning, if not the property owner.

c. The type of panels and material specifications used at the Solar Energy Facility.

d. All costs for the removal of solar panels, buildings, cabling, electrical components, road, fencing, and any other associated facilities below grade.

e. All costs associated with the grading and re-seeding of disturbed earth from the project.

3. The decommissioning plan shall be updated with the Planning Department every three years or upon change of ownership of the property or the Solar Energy Facility.

4. The Solar Energy Facility owner shall have six (6) months to complete decommissioning of the facility if no electricity is generated for a continuous 12-month period. For purposes of this section these periods shall not include delay resulting from force majeure.

5. Disturbed earth shall be graded and re-seeded unless a written request is submitted by the property owner specifying areas not to be restored.

6. A Decommissioning Performance Guarantee is required that meets the following standards:

a. Shall be submitted prior to issuance of a building permit.

b. Shall equal 115 percent of the estimated decommissioning costs.

c. Shall not be reduced by salvage value.

d. Shall be automatically renewable in the form of a bond or cash escrow deposit, in favor of the County, which shall be drawn and paid in full in immediately available funds in the event the owner fails to decommission the Solar Energy Facility pursuant to the requirements of this section. The institution issuing this guarantee shall provide to the County a notice no less than 90 days in advance of any renewal, cancellation, termination or expiration of this guarantee.

e. Shall be recorded in the County’s Registry of Deeds.

f. Shall be reviewed every three years as part of the decommissioning plan update and adjusted based upon current costs. In the even the decommissioning costs decrease, the performance guarantee shall not be changed to reflect the lower cost.

g. Shall remain in effect until decommissioning and site restoration is complete.

7. Should the County become the decommissioning agent and execute the decommissioning bond, the salvage value of the project becomes property of the County.