When the Jefferson County Commission last met to conduct business, on September 7, the published agenda did not include any reference to amending the county’s zoning ordinance under new business or unfinished business. A debate about the purchase of garland to decorate the county courthouse for Christmas took several minutes at the top of the meeting.
About an hour later the commission got to the recurring legal updates agenda item. Assistant prosecuting Attorney Nathan Cochran, the commission’s legal counsel, stated he had no updates on any of the several legal cases, several of which are related to the zoning ordinance and solar projects. Commissioner Jennifer Krouse then interjected to say that she had something to discuss related to the solar zoning. She also asked that Commissioner Steve Stolipher recuse himself from the discussion (Stolipher has made it a practice to recuse himself from discussion on solar zoning as he has business interests that have the potential to benefit from the development of solar projects in the county).
Lack Of Transparency
Once Stolphier, the commission President, had left the room, and with only three commissioners now present, Commissioner Tricia Jackson immediately moved to appoint Krouse as the presiding officer. Krouse in turn immediately made a motion to “repeal” section 8.20 of the county’s zoning ordinance. Section 8.20 sets forth the conditions for permitting industrial solar projects in the rural zone of the county. Commissioner Jane Tabb raised a concern that this action was not properly noticed in the agenda, a position supported by the county counsel and staff. Cohran attempted to provide advice on the motion but was quickly shut down by Krouse who pointedly said “I didn’t ask you.”
Krouse then called the vote, with she and Jackson voting to repeal section 8.20 and Tabb opposing.
Not Consistent With State Law
Aside from the stated concerns about this action violating the state’s open meeting laws, this motion to “repeal” a section of the zoning ordinance does not meet the requirements for amendment set forth in the zoning ordinance itself. As stated in section 12, there are several options for amending the ordinance, all of which require review by the Planning Commission and public hearings. During the Commission discussion, Krouse mentioned Robert’s Rules of Order in reference to the repeal action, but Robert’s is merely a procedural guide for how the Commission conducts its meetings. Once an ordinance is legally enacted by the Commission, any modification or amendment is governed by county ordinance and state code, neither of which allow for a zoning ordinance to be simply “repealed.”
Legal Challenges Ahead
The “repeal” has another potential defect — it was limited to removing section 8.20, the portion of the zoning ordinance which sets forth the specific conditions and requirements for solar facilities. The “repeal” action did not amend the ordinance to undo the other elements related to the conditional use permitting of solar facilities. Absent section 8.20, a solar facility developer could have a legal argument that solar facilities are allowed as a conditional use, but with no specific requirements (e.g. no decommissioning bond, no specific stormwater permitting, no special setback or screening, etc.).
Cochran also serves as the legal counsel for the county’s Planning Commission. At the October meeting of that commission, Cochran stated that legal counsel for the several solar projects underway had informed him that they were contemplating significant litigation depending on how the “repeal” action proceeds.
To date, the county staff has been unable to provide a timetable for making changes to the zoning ordinance based on the commission’s September 7 action.
Published Sep 8 2023; updated Oct 26 2023 to note legal counsel’s comments at October Planning Commission meeting. Follow updates at ObserverWV.com/solar-in-jefferson.
By Steve Pearson