Augusta Solar, landowners were denied permission in 2019. They filed a lawsuit.

VERONA – In May, the Augusta County Planning Commission declined to recommend Augusta Solar, a proposed large-scale solar energy system in Stuarts Draft.

It wasn’t the first time the project had been rejected. In 2019, the Augusta County Board of Supervisors rejected Augusta Solar in a 4-3 vote. At the time, the project included 2,700 acres with visual buffers. Now, the project has been scaled back to 1,600 acres with visual buffers.

After it was dismissed in 2019, Augusta Solar LLC and 13 landowners who would have leased the company land filed an appeal in Augusta County Circuit Court. The case dragged on for years, sometimes with years between filings, but was concluded in early 2023.

Below you can read how the case was argued and decided.

The landowners are appealing

The plaintiffs in the case argued that the board had acted “unreasonably, arbitrarily and capriciously” in its decision.

“Supervisor (Carolyn) Bragg’s motion to deny the application did not provide a specific basis for denying the application,” the complaint states. “Instead, (Bragg) simply proposed to ‘deny the solar application submitted to the county.'”

Before the motion was filed, however, Bragg argued in the complaint that the project could not be approved unless it was consistent with the county’s comprehensive plan. Before the supervisors voted, the Augusta County Planning Commission found the project consistent with the county’s comprehensive plan in a 5-2 vote.

“There is no evidence in the record before the Board that the general location or approximate location, character and size of the proposed solar energy system does not substantially conform to at least a portion of the Comp. Plan or that the proposed solar energy system does not comply with the requirements of the Solar Ordinance, including the general standard that a large solar energy system meet the specific elemental requirements of the Comp. Plan.”

According to Section 25-70.4 of the County Code, proposals require only one element: they “must conform to the County’s Comprehensive Plan or to specific elements of that plan.”

The lawsuit is divided into two counts. The first alleges that the board acted arbitrarily, capriciously, and outside of its legal authority. The second accuses the county of violating the Virginia Constitution.

The province responds

“This lawsuit is Plaintiff’s angry disagreement with the Board’s valid legislative action, and an audacious attempt to claim speculative profits and damages in response,” the response reads. “Plaintiffs cannot have valid claims where the Board has exercised its legitimate land use authority.”

The province’s response states that the council’s actions speak for themselves and that “the council is not required to provide reasons for approving or denying special use permit applications.”

“The board explicitly states that the statements or motives of an individual board member are, as a matter of law, irrelevant,” is the response.

The board is also responsible for interpreting and applying the comprehensive plan, and argues that the plaintiff has cherry-picked details from the land to support his case.

The claimant’s challenge to the constitutionality of the decision

The plaintiff’s constitutionality argument relied on Article I, Sec. 11, which guarantees the right to private property.

“The taking or damaging of private property is not for public use if the primary use is for private profit, private advantage, private enterprise, creating more jobs, increasing tax revenue, or economic development.”

By banning solar development, the lawsuit alleges, the board restricted their right to use their land as the company saw fit.

“The landowners are not industrial, commercial or residential developers. Much of the landowners’ land is currently used for agricultural purposes and the addition of the proposed solar energy system would allow them to introduce a use that is complementary to that agricultural use. The council’s refusal of the application would harm the landowners’ property by restricting their right to use their property to generate income.”

The province’s response argued that the board had not taken possession of the plaintiff’s land for public use through expropriation, but that the board had exercised its discretion to decide whether or not to issue a special use permit.

“Plaintiff landowners continue to have full control and ownership of their property. The Board has in no way appropriated plaintiffs’ property for public use. Such claims of ‘expropriation’ are conclusive and hollow, as they are not supported by the facts alleged.”

The response also states: “Plaintiff’s arguments are instead a bold claim for ‘desirable’ future profits.”

Shades of Elm Spring

The back-and-forth recently came up during a meeting of the Augusta County Planning Commission, when the commission declined to approve the Elm Spring solar project.

Supervisor Carolyn Bragg, who also serves on the planning commission, opposed the small-scale solar project, citing employment, zoning, rural views and taxes. She pointed to the county’s plans for Badgett’s property.

“The future use of the property looks like commercial residential and mixed use,” Bragg said. “(Those) are the best options, should the property come out of land use. When I compare the seven to ten thousand a year in revenue that would be generated if the property were developed, I compare that to what there potentially could be if it were to be used in a different way as indicated on a comprehensive plan. There’s a difference in value there.”

The landowner in this case, Virginia “Ginny” Reynolds Badgett, raised the disparity in tax revenues from potential projects during the public hearing, saying that “it is wrongly assumed that we want to sell the property at this point and take it out of agriculture, which we don’t want to do.”

“Tax and utility revenues are not lost because they never were,” Badgett said. “Losing something means it exists at all, like the farm that has been in my family for 90 years. Instead of the status quo, I am offering the county an opportunity to actually increase the revenue and economic impact of the farm while my family continues to own it.”

Judge ends the case

After a year of motions going back and forth, a judge in April 2020 rejected the second charge, the constitutionality argument.

“This does not amount to a ‘dispossession’ as defined in the Virginia Constitution,” the judge wrote. “The Virginia Constitution does not authorize a remedy for any abatement. There must be some damage to the property itself, which does not include a mere interference with the personal pleasure or enjoyment of the owner.”

The case went quiet in 2020 during the COVID-19 pandemic. At that time, the plaintiffs requested that the case be referred to litigation. In July 2020, the judge denied the request. Citing case law, the judge refused to “infringe” the council’s “statutory authority” by referring the case to litigation.

The judge predicted the current application, writing that “plaintiffs may still submit an amended plan for approval.”

The first complaint was never heard. Both the landowners and the board filed a joint motion to dismiss the case with prejudice.

In February 2023, the judge issued a final order and dismissed the case.

The project returns to supervisors on Wednesday

On Wednesday, the Augusta County Board of Supervisors will again decide whether to approve or deny the project.

The company will first appeal the planning commission’s decision to the supervisors, and then hold a public hearing on the project’s special use permit.

Lyra Bordelon (she/her) is the Public Transparency and Fairness Reporter at The News Leader. Do you have a tip or feedback for a story? It is welcome via email to [email protected]. Subscribe to us via newsleader.com.