By: Robert G. McLusky and Michelle Elmore Wooton
Solar developers in West Virginia must ensure that their proposed project location does not violate applicable zoning and land use laws. West Virginia’s land use laws authorize land uses in zoning districts either as “permitted uses” or as “conditional uses.” Where there is municipal or county-wide zoning, “permitted uses” need only comply with whatever zoning criteria have been adopted by an applicable zoning ordinance—they do not need to undergo some sort of case-by-case review. “Conditional uses” require “conditional use permits” (“CUPs”) from the appropriate board of zoning appeals, which can impose additional restrictions on the project or deny an application altogether.
The same laws have long provided that “essential utilities” are considered a “permitted use” in all zoning districts—a provision that prevents counties and municipalities from requiring CUPs for their construction and use. [1] There have been a dozen or more “utility scale” solar facilities planned to varying degrees in West Virginia, but they likely do not fit within the definition of “essential utilities.”
For the past two years, the solar industry and its allies have backed bills in the West Virginia Legislature that would treat solar facilities that qualify for “siting certificates” from the Public Service Commission the same as “essential utilities.” That is, the bill would provide that PSC-approved solar facilities are to be considered “permitted uses” in all zoning districts. [2] And, for the second time, that bill has failed to get out of committee and to the floor of the Legislature. The House Judiciary Committee failed to discharge the bill by a 12-12 vote. [3]
This means that counties and municipalities with zoning ordinances may adopt provisions treating solar facilities as “conditional uses” requiring approval from a board of zoning appeals after a public hearing–a process that injects considerable uncertainty into solar project development.
[1] See W.Va. Code § 8A-1-2(f)(defining essential utilities) & 8A-7-3(e)(providing that essential utilities are a permitted use in any zoning district).
[2] See WV House Bill 2459 (2023): https://www.wvlegislature.gov/Bill_Status/bills_history.cfm?INPUT=2459&year=2023&sessiontype=RS
[3] See “Bill to allow non-utility electric generating facilities in any zoning district fails in WV House Committee,” Charleston Gazette , Feb 1, 2023