Important Zoning Provisions to Analyze for Prospective Solar Developers
Solar developers should be aware of the fundamental zoning ordinance provisions that will affect a project early on in the due diligence process for identifying potential sites for utility scale solar or solar farms. The following are typical provisions that should be researched and reviewed early on in zoning ordinances. Developers should also check subdivision and land development ordinances for similar or supplementary regulations that will apply to land development plans submitted for the utility scale solar or solar farm.
Zoning Districts
Identify Zones that allow for utility scale solar or solar farms. Districts may provide for utility-scale solar or solar farms as a permitted use (best), special exception or conditional use.
- If no Zones permit utility-scale solar or solar farms, the ordinance may still provide an option for conditional use or special exception under a catchall provision that allows uses not otherwise provided for in the ordinance.
- If the Zone you wish to develop on does not allow utility-scale solar or solar farms, a Zoning Map change may be in order.
- If the first two strategies are not feasible, a Proposed Solar Ordinance may be in order
- A use variance will often be the least desirable option as these variances are tough to defend if ever challenged, but it is nonetheless an option.
Special or Supplemental Regulations
Zoning ordinances will provide additional regulations specific to certain uses. If utility-scale solar or solar farms are allowed under the ordinance, there will almost always be a section of supplemental regulations governing the utility scale solar or solar farm. This is typically the meat of the land-use regulations applying to utility-scale solar or solar farms.
Lot Coverage
Check for lot coverage or impervious area regulations. Solar arrays may be counted as impervious coverage or building coverage. If included, it may be very difficult for a solar developer to meet the lot coverage limitations.
Height Limitations
Look for any height limitations in the solar ordinance. Many solar ordinance provisions defer to the height provisions for the zone in which the proposed solar site will be located. Height limitations are not typically a problem for the solar arrays themselves, but these limitations can present problems for outgoing overhead electrical lines or other accessory structures like lightning rods.
Tree Removal
Many solar ordinances will contain provisions placing limitations on tree removal. This may severely limit or require variances to clear a site, which could add significant cost and time to permitting utility-scale solar or solar farm.
Access Requirements
Provisions that regulate access drive width and location should be reviewed to make sure the utility-scale solar or solar farm can meet the requirements.
- If site access will be connected to a state highway, a state Highway Occupancy Permit (HOP) will be required.
- Access drives will almost always require stormwater management as well.
Screening and Landscaping Requirements
Many ordinances require native vegetative screening to screen the utility-scale solar or solar from surrounding properties. These requirements may be very specific. A good screening plan that meets the ordinance requirements can help reduce the concerns of neighbors early on. However, screening requirements that refer broadly to adjacent zoning districts can be overly burdensome and unnecessary. Better ordinance provisions provide for screening requirements that apply to actual uses or structures.
Setback Requirements
All ordinances have setback or yard requirements, which are almost always measured from the street right-of-way line (not the edge of cartway). These provisions may be general to a zone or district or they may be specific to the utility-scale solar or solar farm use. Developers should also review what is allowed or disallowed in a setback, such as fences, parking, access drives, screening, walls, etc. Developers should review setbacks early to identify any need for dimensional variances.
Glare/Noise Requirements
Glare has been frequently overstated as a concern for utility-scale solar and solar farms. With the advancement of panel technology glare has been almost completely eliminated. Nevertheless, many ordinances still require glare studies. Glare study requirements should focus on glare impacting public streets or nearby structures. In the same vein, utility-scale solar and solar farms produce little noise after construction. A developer should still review the ordinance for noise limitations or study requirements, including when the municipality expects these studies to be done.
Fencing
Fence provisions may be in the utility-scale solar or solar farm special regulations, or in other more general fence provisions. Developers should review the provisions to determine whether fences can be in setbacks. Fence opacity and height requirements should also be considered.
Internal Lot Lines
If the land being put together for the utility-scale solar or solar farm spreads across multiple lots, internal lot lines should be reviewed with setback provisions in mind. Setback are usually measured from any lot line, so internal lot lines can greatly reduce usable area. Reverse subdivisions can be incorporated into land development plans. However, reverse subdivision are not possible where the lots to be leased for the utility-scale solar or solar farm are under different ownership.
Compatible Uses
Many zoning ordinances limit lots to one principal use. Because utility-scale solar and solar farms are almost always a principal use, most ordinances do not allow other uses like residences, agrivoltaics or other forms of agriculture to continue even though the solar use is a passive use. Ordinances should be written to allow other compatible uses. Care should also be taken to craft language that allows preservation of existing homesteads and re-establishment of non-conforming uses if the land ever returns to its original use when the solar lease expires.
Decommissioning
Almost all solar ordinances require decommissioning plans at the time of establishing the utility-scale solar or solar farm. Most require posting some form of financial security acceptable to the local municipality to secure the expense of dismantling and removing the utility scale solar or solar farm and restoring the land to its original condition. A developer should review these decommissioning provisions and the timing and amount of the security required as this may vary widely among ordinances. The most favorable ordinances require financial security in an amount that takes into consideration the salvage value of any solar arrays and does not require posting of the surety until after the use has been established.
For any other questions related (or unrelated) to utility scale solar or solar farm development, please don’t hesitate to email Andy Miller (amiller@mpl-law.com), Cory Dillinger (cdillinger@mpl-law.com) or anyone in our office with questions or comments.
Leave a Reply