Insights

Solar Farm Developers Need to Prioritize an Updated Solar Ordinance or Text Amendment over Variances

June 25, 2021

With today’s quickly shifting solar landscape, solar developers frequently encounter zoning ordinances which either don’t allow for solar farms or utility-scale solar, or greatly limit this type of development. When a solar developer faces this issue they must understand their options moving forward. Proposing a solar ordinance or amending a previous solar ordinance may seem like a waste of time and resources relative to its benefits, but our firm has seen great benefits from this course of action when compared to seeking variances for a solar farm or utility-scale solar development. Here is a brief explanation comparing the two different approaches: 

Benefits of an Ordinance Amendment

  • Many solar ordinances were written more than a decade ago. More importantly, these ordinances placed an emphasis on residential/rooftop solar rather than utility-scale solar or solar farms.
  • Rather than working towards a variance granted by a non-governing board, the developer may be able to work alongside of the governing board of the municipality in crafting a new solar ordinance or amending a previous solar ordinance. 
  • A comprehensive solar ordinance creates better certainty and predictability to developers, neighbors, and local governments.
  • A comprehensive solar ordinance which outlines specifications for solar farms or utility-scale solar can bolster the local community and attract agrivoltaic farmers.
  • Vast array of local and model solar ordinances to work with as a starting point.

Problems with Variances

  • By nature of a variance, a variance is an exception rather than the general rule.
  • If a use variance is needed, it is likely that dimensional variances are also needed.
  • Dimensional variances can be quite difficult to identify early on.
    • E.g., a solar developer can be granted a use variance and dimensional variances for their proposed development site, but the developer may find a change in layout requires an additional dimensional variance that will delay approval times and open the project back up for challenges and conditions. 
  • Use variances are almost impossible to defend if challenged.
    • To uphold a use variance, the proponent must establish that:
  1. That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located;
  2. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
  3. That such unnecessary hardship has not been created by the appellant;
  4. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
  5. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

The second and third element for variances are hard or impossible to establish. What is the land being used for? If the land is already developed or in a beneficial use (such as agriculture) the applicant can’t establish this requirement. The third element goes hand-in-hand with the second. The developer is the proponent of the variance, and therefore, this hardship has likely been self-created by the desire for its particular use.

In addition to the procedural hurdles variances present, an applicant may also be subject to conditions and challenges from a zoning hearing board. A zoning hearing board which may consist of members who have little or no planning background or technical expertise. These members may also base their opinions off of a single presentation on the proposed solar farm or utility-scale solar project. In our firm’s experience, it is almost always more beneficial for a solar farm or utility-scale solar developer to prioritize a solar ordinance or an amendment to an existing solar ordinance rather than relying on unpredictable and unreliable variances.

Determining and understanding the legal framework under which a development project must conform to is but one aspect of a comprehensive and successful utility-scale solar or solar farm project. For any other questions related (or unrelated) to this type of 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. 

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