Does a Virginia county's zoning ordinance protect my pre-2018 ground-mounted solar facility on agricultural land if the ordinance only mentions 'solar power panels' for residential use?

Subject

Whether a county ordinance allowing "solar power panels" as a residential accessory use regulates a ground-mounted solar facility on agriculturally zoned and used land for purposes of the 2018 grandfather provision.

Plain-English summary

A ground-mounted solar facility had been built on agriculturally zoned land in Loudoun County before January 1, 2018. The county's zoning ordinance allowed "solar power panels" as an accessory to residential use, but said nothing else about solar facilities. The county asked whether that wording prevented the facility from receiving statutory grandfather protection.

The Attorney General answered no. The residential accessory-use provision did not regulate a ground-mounted solar energy generation facility on land zoned and used for agricultural purposes. Under the grandfather clause in Chapters 495 and 496 of the 2018 Acts, this facility was a legally existing nonconforming use under § 15.2-2307 and was not subject to removal.

The opinion also quotes § 15.2-2288.7(B), which addresses certain ground-mounted facilities on agricultural land. That subsection makes them permitted unless a local ordinance provides otherwise, subject to zoning-district height and setback requirements and applicable historic or corridor protections. The AG's grandfather conclusion rests on a separate clause covering facilities already existing on January 1, 2018. The opinion does not apply subsection B's height and setback conditions to the grandfathered facility.

What this means for you

Owner of a facility like the one described: If it existed before January 1, 2018, on land zoned and used for agriculture, a county ordinance addressing only residential accessory "solar power panels" does not by itself defeat the grandfather provision. The AG concluded the particular Loudoun County facility was not subject to removal under that clause.

Local zoning staff: Read the ordinance as it applies where the facility sits. The AG held that a residential accessory-use allowance did not regulate this agricultural facility as a permitted principal or accessory use, or expressly as a solar facility. The opinion says that if an ordinance did permit the facility as a principal or accessory use, the grandfather clause would not apply, although § 15.2-2307 could protect the use from certain future regulatory changes.

Common questions

Does a county's residential "solar power panels" provision cover this agricultural facility?

The AG said no for the ordinance and property described. The county's ordinance did not address ground-mounted solar facilities on land zoned and used for agriculture.

What did the 2018 grandfather clause protect?

It deemed a ground-mounted solar energy generation facility existing as of January 1, 2018, a legally existing nonconforming use and barred its removal if the locality did not already regulate such facilities as a permitted principal or accessory use, or expressly as a solar facility.

Did the AG decide whether this older facility must satisfy current height and setback rules?

No. Those conditions appear in the opinion's quotation of § 15.2-2288.7(B). The AG's conclusion for the older facility addresses its status under the separate grandfather clause and says it is not subject to removal.

Does the opinion decide whether a later expansion is allowed?

No. The request concerned the facility already in place before January 1, 2018.

Background and statutory framework

The 2018 legislation created § 15.2-2288.7 and a separate grandfather clause. Subsection B addresses certain facilities on agriculturally zoned property operated under § 56-594 or § 56-594.2. The grandfather clause addresses facilities existing as of January 1, 2018, where a locality had not regulated them in its zoning ordinance in the specified ways. The AG applied the latter clause to the described Loudoun County property. The opinion notes that nonconforming uses may continue until abandoned.

Citations and references

• Va. Code § 15.2-2288.7
• Va. Code § 15.2-2307
• Va. Code § 56-594
• 2018 Va. Acts cc. 495, 496

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/21-104-Rogers-opinion-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH OF VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

January 13, 2022

The Honorable Leo P. Rogers
Loudoun County Attorney
1 Harrison Street, S.E.
Post Office Box 7000
Leesburg, Virginia 20177-7000

Dear Mr. Rogers:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a locality "regulates ground-mounted solar facilities in the provisions of its zoning ordinance" within the meaning of Chapters 495 and 496 of the 2018 Acts of the General Assembly if the locality's zoning ordinance contains no express reference to the terms "ground-mounted solar facility" or "solar facility" anywhere in its zoning ordinance, but does allow "solar power panels" as a permitted use or structure in connection with and incidental to the principal use of a property as residential.

Background

You relate that a ground-mounted solar energy generation facility was constructed on a piece of land in Loudoun County prior to January 1, 2018 and continues to exist today. The land is situated in an agricultural zoning district, is used for agricultural-related purposes, and has no structures on it other than the solar facility. The solar facility is operated under the agricultural net energy metering provisions of § 56-594 and produces up to 500 kilowatt hours for multiple homes and buildings on other lots with excess energy fed into the grid.

The supplemental district regulations of the County's zoning ordinance allow "solar power panels" as an accessory use or structure in connection with and incidental to the principal use of a property as residential. The zoning ordinance does not contain any other reference to solar power panels or solar panels, and the terms "ground-mounted solar facility," "ground-mounted solar energy generation facility," and "solar facility" do not appear anywhere in the zoning ordinance.

Applicable Law and Discussion

Section 15.2-2288.7 governs the local regulation of solar facilities. Subsection B of the statute provides, in relevant part, that

Unless a local ordinance provides otherwise, a ground-mounted solar energy generation facility to be located on property zoned agricultural and to be operated under § 56-594 or 56-594.2 shall be permitted, provided that such installation is (a) in compliance with any height and setback requirements in the zoning district where such property is located and (b) in compliance with any provisions pertaining to any local historic, architectural preservation, or corridor protection district adopted pursuant to § 15.2-2306 where such property is located. Except as provided herein, any other solar facility proposed on property zoned agricultural, including any solar facility that is designed to serve, or serves, the electricity or thermal needs of any property other than the property where such facilities are located, shall be subject to any applicable zoning regulations of the locality.

This statute was enacted via Chapters 495 and 496 of the 2018 Acts of General Assembly, which are identical pieces of legislation. The grandfather provision in Clause 2 of each of those chapters provides:

[T]he provisions of this act with respect to ground-mounted solar energy generation facilities shall become effective on January 1, 2019. Unless a locality regulates ground-mounted solar facilities in the provisions of its zoning ordinance as a permitted principal or accessory use, or expressly as a solar facility, a ground-mounted solar energy generation facility existing as of January 1, 2018, shall be deemed a legally existing nonconforming use under § 15.2-2307 of the Code of Virginia and shall not be subject to removal.

The ordinance at issue does not define the term "solar power panels." Section 15.2-2288.7 specifically uses the phrases "solar facility" and "ground-mounted solar energy generation facility." These phrases are not defined by the statute. However, "[w]hen construing a statute, [the] primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Further, Virginia's courts have "long recognized that 'statutes are not to be considered as isolated fragments of law, but as a whole, or as parts of a great connected, homogeneous system, or a single and complete statutory arrangement.'"

You advise that the County maintains that use of "solar power panels" in the ordinance means all solar facilities, including ground-mounted solar facilities, and that allowing them as an accessory to a residential use is sufficient to avoid application (for all properties regardless of their actual use or zoning classification) of the grandfather provision of the statute, which deems a ground-mounted solar energy generation facility existing as of January 1, 2018, a legally existing nonconforming use. If those interpretations were correct, the grandfather provision of the statute would not apply to the solar facility in question.

"In the context of zoning, 'grandfather' provisions generally are used to protect a nonconforming use, which is a use lawfully existing on the effective date of the zoning restrictions and continuing since that time in nonconformance to the ordinance." "These uses are permitted to continue, although technically in violation of the current zoning regulations, until they are abandoned."

Taken together, the grandfather provision and the language and structure of § 15.2-2288.7 indicate that the grandfather provision is broader than the County's interpretation. A locality's zoning ordinance that only allows solar power panels as an accessory to a residential use, even if that term encompassed ground-mounted solar energy generation facilities, does not deprive owners of agriculturally zoned and used property with solar facilities of the protections of the grandfather provision.

The purpose of the grandfather provision is to expressly permit the continued use and operation of then-existing ground-mounted solar energy generation facilities when those facilities were not already regulated under a locality's zoning ordinance as a permitted principal or accessory use, or expressly as a solar facility, where they were situated. The subject property is situated in an agriculturally zoned district and is used for agricultural purposes. The County's zoning ordinance is silent as to ground-mounted solar energy generation facilities on properties in agriculturally zoned districts that are used for agricultural purposes. As such, the County's zoning ordinance does not regulate this particular ground-mounted solar energy generation facility as a permitted principal or accessory use, or expressly as a solar facility, where it is situated. Therefore, the grandfather provision deems it a legally existing non-conforming use under § 15.2-2307 and the facility is not subject to removal.

If the zoning ordinance did permit the facility as a principal or accessory use, the grandfather provision would not apply, but such use would be protected from certain future regulatory changes under Virginia's vested rights statute. VA. CODE ANN. § 15.2-2307.

Conclusion

It is my opinion that a locality's regulation, in its zoning ordinance, of "solar power panels" as a permitted residential accessory use does not constitute regulation of "ground-mounted solar energy generation facilities" as a permitted principal or accessory use, or expressly as a solar facility, on property in an agricultural zoning district and used for agricultural purposes. Further, a ground-mounted solar energy generation facility existing prior to January 1, 2018, situated on such a property in such a locality, would be covered by the grandfather provision in Chapters 495 and 496 of the 2018 Acts of the General Assembly and would be deemed a legally existing non-conforming use under § 15.2-2307 and not be subject to removal.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General