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Wind farm planned for Botetourt missed deadline for approval, county says

The first renewable energy project of its kind in Virginia is hitting headwinds in Botetourt County.

Rocky Forge Wind, which would consist of 14 wind turbines towering more than 600 feet above the ridgeline of North Mountain, missed a deadline for approval of a site plan and is not eligible for a statewide extension granted to some projects because of the COVID-19 pandemic, the county has determined.

Consequently, a special exception permit granted last year to Apex Clean Energy has expired, according to Drew Pearson, the county’s zoning administrator.

The decision was a major setback for Apex, which announced plans in 2015 to build what would be the state’s first onshore wind farm, converting the winds that blow across the Blue Ridge mountains into electricity for private, business and government use.

“We are disappointed that the county has made this determination when Rocky Forge Wind so clearly represents the kind of project the General Assembly intended to address with its COVID-19 zoning extension legislation,” Karlis Povisils, senior vice president of development for Apex, said in a news release Monday.

“Rocky Forge Wind has been in development for years, and throughout that time, we have worked diligently with the supervisors and the community to bring this project to fruition.”

County spokeswoman Tiffany Bradbury released a copy of Pearson’s July 7 letter explaining his decision but said no one was available to talk about the issue Monday.

The latest hitch in the long-delayed plans arose two months ago, when a citizens group opposed to putting the giant turbines on a remote mountaintop argued that the Charlottesville company had failed to meet a May 26 deadline for county approval of its site plan. Such an approval was a condition of a special exception permit granted one year earlier.

Apex said that its project was delayed by the pandemic, and that it should qualify for an extension approved by the General Assembly late last year that pushed the deadline back to July 1, 2022.

The law, which came as many businesses and construction projects were slowed by the spread of the deadly virus, allowed such an extension for any developer that was required to “commence the project or incur significant expenses” on a certain timeline.

In his July 7 letter to an attorney for wind farm opponents who requested his decision, Pearson wrote that a special exception permit granted to Apex on May 26, 2020, by the county’s board of supervisors required neither a start of work nor significant money spent on the wind farm within a year.

Rather, the board only required that Apex receive approval of its site plan by May 26 of this year, and that – assuming such approval was granted – it obtained a building permit and began work within five years.

Apex submitted a site plan to the county last December and a revised one in March that responded to the county’s initial questions and concerns. But as of May 26, no plan had been put forward “that was or could have been approved by the county,” Pearson wrote.

The special exception permit was therefore invalid, he wrote, and the project did not qualify for the COVID-19 extension because the county’s approval did not include a specific deadline for the start of work or significant expenses incurred.

Approval of a site plan is an “administrative review function” needed before Apex could apply for additional approvals, such as a building permit, Pearson wrote.

“If Apex had received site plan approval, it would have continued to have until 2025 to commence the project,” the letter stated.

Apex said Monday that the county sent the company its latest response to the site plan in June. Details on those comments were not available Monday.

Del. Terry Austin, R-Botetourt, said Monday that he believed the wind farm qualified for an extension under the state law. “I think the intent of the legislation was all-inclusive” to give more time to projects delayed by the pandemic, he said.

In a letter last Thursday, Apex asked the county to reconsider its decision.

If that does not happen, “considering the level of investment that has been made to date … Apex Clean Energy has no choice but to seek legal remedy through the Board of Zoning Appeals,” the company said in its news release.

That decision could then be appealed to Botetourt County Circuit Court, where Apex is currently facing another challenge.

Virginians for Responsible Energy, the same citizens group that requested a decision on the COVID-19 extension law, earlier filed a lawsuit challenging a separate approval of the wind farm by the Virginia Department of Environmental Quality. A hearing in that case is set for Aug. 20.

New laws in Virginia call for a transition from fossil fuels and renewable forms of energy, such as solar and wind. Opponents of the Mountain Valley Pipeline, a natural gas project under construction in Southwest Virginia, have also called for more renewable energy.

But previous onshore wind farms have failed to get off the ground in the region, and Apex has faced an uphill climb.

The renewable energy company never acted on an earlier approval from Botetourt County in 2016 – which permitted up to 25 turbines no higher than 550 feet – after it encountered difficulty finding a purchaser for its green energy.

By the time the state of Virginia agreed in 2019 to purchase the electricity to power government agencies and buildings, Apex said improved technology allowed for fewer turbines, although at a greater height.

That in turn required the company to seek revamped permits. By then, county officials were growing frustrated with the delays to a project they had openly embraced in 2016. And community opposition to the wind farm had grown – in part based on the same environmental concerns that have been raised by pipeline opponents for years.