A look at a lease

The ESA Solar/SUP 23-06 application (withdrawn by applicant) contains a redacted version of the lease agreement between the landowner and the solar developer (tenant). For anyone interested in reading the agreement, it is is available on the County's website here (lease starts on p. 7). If for some reason that link doesn't work, go to the Project Page and look for Appendix A: Affidavit and Lease.

Reading the full lease may prompt questions for the Planning Commission and Board of Supervisors during future project reviews.

Below, a few interesting sections excerpted from the lease related to:

- Use: the expansive scope of the lease

- Adjacent properties: interference with sunlight to the lease property

- Decommissioning: termination of lease/surrender of possession

(any highlighting below is ours):

2. Use.

2.1 Permitted uses. Tenant may use the Leased Premises to build and operate a solar photovoltaic power array for the distribution of electric power (the "Solar Operations"), which shall include without limitation the following:

(a) Developing, constructing, reconstructing, erecting, installing, improving, replacing, relocating and removing from time to time, and using, maintaining, repairing, operating and monitoring, the following: (i) solar electric power generation facilities; (ii) power collection facilities, including distribution and collection lines, wires and cables, conduit, footings, foundations, vaults, junction boxes, switching facilities, transformers, and above-ground transformers, (iii) control, communications and radio relay systems and telecommunications equipment, including fiber, wires, cables, conduit and poles; (iv) roads, culverts and erosion control facilities; (v) utility installations; (vi) laydown areas, crane pads and staging areas reasonably necessary for the installation and maintenance of the solar generations facilities; (vii) signs; (viii) fences, gates and other safety and protection facilities; (ix) solar energy storage facilities (including, without limitation, any improvements, equipment, batteries, switches, transformers, and other devices for storage of electrical energy, together with all structures, equipment, enclosures, fencing, security devices and other ancillary facilities related to), and (x) other improvements, facilities, appliances, machinery and equipment in any way related to or associated with converting solar energy into electrical energy, transmitting, and/or storing the same (collectively, the "Improvements), ...

Summary: The lease allows for a whole lot of items likely to be undesirable to neighboring properties, including battery storage. If you run into a project with a list like this, speak up and express any concerns to your district Planning Commissioner or Supervisor.

Another section: 2.2 Sunlight

(b) If Landlord becomes aware of any potential activity on any Adjacent Property that could diminish the Sunlight at the Property, Landlord shall use its best efforts both to timely advise Tenant of such information and with respect to any Adjacent Property to reasonably cooperate with Tenant in taking measure to preserve the levels of Sunlight at the Property which exist as of the date of this Lease. Tenant shall be entitled to seek all remedies available at law and in equity, including but not limited to, specific performance, to compel compliance with this Section 2.2(b).

Summary: Adjacent properties may want to watch their trees.

Section 11: Termination of Lease/Surrender of Possession.

No later than six (6) months after the expiration or earlier termination of this Lease ("Restoration Period"), Tenant shall remove all improvements and personal property made or placed thereon by Tenant pursuant to this Lease, cover up all pit holes, trenches and other borings or excavations made by Tenant thereon, replace all topsoil removed in connection with the Solar Operations, fertilize and reseed with native grass, and otherwise restore the Property to as near as possible to its orginal condition prior to the Lease, and leave the Property in a good, clean condition. Notwithstanding the foregoing, Tenant shall not have the obligation to remove any roads constructed on the Property and any subsurface improvements. Tenant shall have access to the Leased Premises during the Restoration Period in order to remove the Improvements and to restore the Property.

Note: "Termination of Lease" language should be compared to the decommissioning plan. The goal is to address any inconsistencies and ensure that there are no surprises at decommissioning time. In this case the decommissioning plan calls for dismantling of roads and restoration of the compressed soils. However, the lease above says there is no obligation to remove roads. It's also not clear what "subsurface improvements" are. Make sure all the details are in accord; if they're not, ask questions and express concerns to your district Planning Commissioner or Supervisor.

A successful second organizational meeting

A second organizational meeting focused on the utility scale solar project along True Blue Road featured good discussion and attendance (which included a few interested residents from other counties that are dealing with badly sited utility scale solar projects ). The range and focus of the questions asked by meeting attendees indicates that there is deep concern about this project. A third meeting will be scheduled.

Supervisors meet April 9: Comp Plan insertion & ESA Solar

Update: The ESA Solar project application was withdrawn by the applicant.

The Orange County Board of Supervisors will meet on April 9 at 5:00 pm. According to the Planning & Zoning current project webpage, on the BoS agenda: review of proposed language for the Comprehensive Plan regarding public utilities and review of the ESA Solar (Mayhurst Lane) project. There likely will be two separate public comment periods to address these agenda items. The agenda is not yet posted; we'll confirm the final agenda here once it is shared.

According to a January 8, 2024 memo from Josh Frederick, Planning & Zoning Services Manager, in late 2023 the Planning Commission assembled an ad-hoc subcommittee to develop new policies to guide decision making on utility scale solar and other public utility facility applications. The primary goal of these policies is to establish some baseline consideration by which all applications will be analyzed. At their February 15, 2024 meeting, after receiving and incorporating submitted comments and public comments, the commission voted to recommend approval to the Board of Supervisors.

Draft language for the Comprehensive Plan, Section V. Public Facilities, Subsection F. Community Insfrastructure

Public Utility Facilities

Orange County recognizes that if public utilities are not considered and sited properly that they can negatively impact existing businesses, economic development, environmental resources, historic resources, and citizen wellbeing. Accordingly, when considering placement and/or approval of public utilities, the prevention and/or mitigation of negative impacts to existing County businesses and adjacent property owners will be heavily weighted and placed at the forefront of the County’s consideration. The following elements, while not all inclusive, require special attention when considering the operations, siting, and/or placement of public utilities (it should not be construed that consideration of these alone will result in approval or a favorable decision in relation to a public utility): 

• Protection of productive farmland including but not limited to the preservation of existing soil compositions particularly topsoil and the preservation of land within designated agricultural regions. 

• Protection of historic resources including but not limited to preserving the integrity of designated historic districts, sites, and structures. 

• Protection of tourism-related businesses (particularly agritourism and history tourism) and the associated tourism corridor viewsheds.

• Protection of adjacent properties to include the viewsheds from adjacent properties.

• Protection of wetlands, floodplain areas, and dam break inundation areas.

• Limitation of disruption to environmental/wildlife resources, to include limiting destruction or disturbance of intact woodland and freshwater habitats. 

• Promotion of a recycling life cycle approach to include the reutilization or recycling of public utility equipment and components at their end of life. 

• Insurance that adequate funds are available to decommission a public utility at the end of its life or if the site becomes otherwise inoperable, in order to return the land to its original pre-development condition. 

• Promotion of the continuation or incorporation of farming activities for public utilities proposed on existing agricultural land. For example, utilization of marketable animals around solar plant arrays to control vegetation. 

• Ensuring that adequate public resources are available to mitigate or prevent environmental, fire, safety and/or other hazards that may be associated with public utilities. For example, ensuring a public utility includes the provision of required first responder equipment and/or training for specialized equipment or installations. 

• Promotion of public utility installations (e.g. community solar) on parking lots, brownfields, landfills, and formerly mined lands, and minimize the use of valuable greenfields, forests, and productive farmland. 

• Electrical distribution and transmission infrastructure associated with public utilities should be designed to minimize negative and visual impacts on existing and future communities. This would include the screening of structures and the collocation of facilities such as electrical generation, distribution and transmission infrastructure, electrical substations, and electrical storage. This would also include the undergrounding of distribution and transmission infrastructure (both new, and as improvements are made to existing lines), the utilization of existing corridors, and without widening such corridors unless absolutely necessary and not more than the minimum width required for the proposed service level.

ESA Solar application review

ESA Solar is proposing a 5 megawatt project on 35 acres of a 71-acre property on Mayhurst Lane near Prospect Heights Middle School and the Mayhurst Inn. The Planning Commission voted to recommend denial to the Board of Supervisors. Application materials can be found here: https://orangecountyva.gov/1083/SUP-23-06-ESA-Solar

"This project has been withdrawn. Per the project manager's Linked In post:

Over the past few months, I've had the honor of working on a community solar project that we hoped would positively impact Orange County, Virginia. This project aimed to provide affordable, clean energy to low-moderate income households, potentially saving them 10-20% on monthly bills. It would have also supported local grazers and beekeepers.

While we wholeheartedly believe in the benefits this project could bring to Orange County, we've made the difficult decision to respectfully withdraw our application. We understand the complex factors at play and want to be sensitive to the community's current priorities. Rest assured, we remain committed to finding ways to bring sustainable energy solutions to Orange County and will continue to explore opportunities."

He then references the February 19, 2024 Daily Progress article: https://dailyprogress.com/news/community/orangenews/orange-county-solar-farm-may-have-met-its-match-the-social-media-influencers-next-door/article_6d7755f2-cc93-11ee-961b-8f7ecbcbd6c4.html

Regarding the applicant's support of shared solar, see our blog post: https://www.protectorangeva.org/post/a-look-at-shared-solar-in-virginia

The applicant's plans for local grazers and beekeepers were never fully developed during the project review proceedings. Orange County citizens deserve more than a few pages with pretty photos and happy face emoji-like images of the "agrivoltaic team" (rather than actual photos of the individuals).