On July 7, Botetourt County determined the special exceptions permit (SEP) granted to Apex Clean Energy for its Rocky Forge Wind project has become invalid.
A press release issued last week states the county made the decision “in response to a request from Virginians for Responsible Energy (VRE) to evaluate the validity of the project’s SEP issued in 2016 and extended in 2020.”
Apex did not provide the county with a site plan by the May 26 deadline, which terminated the special exceptions permit.
Last week at the Botetourt County Board of Supervisors meeting, representatives of Apex issued a statement to the board during a batch of public comments.
Apex Chief Operating Officer (COO) Ken Young stood before the board, stating the current situation is “a clear misinterpretation of the law.” Young went on to recount the steps in the development process.
VRE requested an opinion on the applicability of a state law passed by a special session of the state General Assembly in October of last year that extends specific timelines until July 1, 2022, due to the COVID-19 pandemic. County Zoning Administrator David Pearson determined that Va. Code Section 15-2-2209.1.1 does not apply to Apex’s SEP. Therefore, the SEP has expired. The expiration of the SEP means that Apex can no longer develop the utility-scale wind farm project.
The county first granted a SEP to Apex to pursue the project in 2016. The Botetourt County Board of Supervisors modified and extended the SEP at the company’s request in May 2020. At that time, Apex reported that construction would be completed by the end of 2021. The SEP and the zoning ordinance were modified to increase the allowable height of turbines. The board was concerned that the project was showing little progress and added a condition, at the recommendation of the Planning Commission, that required the project to receive final site plan approval by May 26, 2021. A final site plan was not approved by that deadline.
Young stated that “the county refused to process the site plan” because Rocky Forge hasn’t submitted the proper plans and submittals for approval. Young claimed Rocky Forge Wind submitted the site plans in February but was denied in March due to the plan’s remaining“ deficiencies. Young claimed the requested additional information asked for by the county was not required in a site plan.
According to the statement released by Botetourt County last week, Apex submitted a site plan application in March. It was rejected both by the Virginia Department of Transportation and county staff, with over 100 comments and deficiencies. Construction on the Rocky Forge project has not begun. Botetourt County has issued no permits for land disturbance or any construction activity.
“I think that it’s important to point out that this is a community decision,” Buchanan District Supervisor Amy White stated. “There is a lot weighing on this [decision]. I see it falling on the shoulders of one person right now (Pearson), and then through a process, that’s pretty weighty. I think we have to abide by this process. There are strong feelings and strong opinions [about the project] right now. I hope we can all come out of this united and comfortable with the decisions that the appropriate people are making.”
Young mentioned that although the COVID-19 pandemic delayed some of their plans, “we worked diligently through 2020 and 2021 to complete the project without the need of COVID relief.”
Apex recently signed a turbine supply agreement with General Electric (GE). It moved forward with commitments from Dominion Energy and the state on their power purchase agreement. Two weeks ago, Apex submitted a letter to the zoning administrator outlining their legal and factual case for reconsideration.
“We stand ready to reengage with the county to complete the site plan review and start construction on this important project to bring over $20 million in revenue to the county schools and landowners over the life of the project,” Young continued. “We have never asked the county for anything other than approvals.”
Young stated the county’s refusal of their site plans came as a “surprise.” Apex prepares to submit a formal appeal to the county’s Zoning Board of Appeals. He added that Rocky Forge Wind is ready to proceed with Virginia’s first wind project.
Apex has 30 days to appeal the county’s determination to the county’s Board of Zoning Appeals. Following a ruling by that board, the matter may be appealed to the Botetourt Circuit Court.
