Apex wins appeal to continue planning wind farm in Botetourt County 

A clean energy company’s efforts to bring a wind farm to Botetourt County is again in motion, for now.

The project has seen a myriad of setbacks since it was announced in 2015, but the latest came in July when the county’s zoning administrator ruled that the developer of Rocky Forge Wind did not qualify for a statewide exemption passed by the General Assembly for some projects that were delayed by the COVID-19 pandemic.

Because a final site plan was not approved by May 26, a special exception permit granted to the project had expired, Drew Pearson determined.

Apex Clean Energy has said that a backlog in the supply chain due to the pandemic slowed its plans, and that it should qualify for an extension approved by the General Assembly.

The decision was appealed by Apex to the county Board of Zoning Appeals, stating that it did indeed qualify for the extension that gives the company until July 1, 2022, to finalize its site plans with the county.

“We had difficulty, among other things, getting engineers out to do testing at the proposed site during the height of the pandemic, Apex Senior Vice President of Development Karlis Povisils said after Tuesday’s meeting.

The board of zoning appeals agreed with Apex on Tuesday, voting unanimously to overturn Pearson’s decision after hearing arguments from the county’s and Apex’s attorneys.

County Attorney Michael Lockaby argued that Pearson had the discretion to interpret the state’s statute as it applied to county matters, but Apex’s attorney, Robert Loftin, said the statute was very clear, and there was nothing to be interpreted.

“It’s pretty cut and dry. There isn’t any language for exemptions,” Loftin said.

Del. Terry Austin, R-Botetourt, was also in Apex’s corner as a proponent of the project, and said the company did qualify for the extension.

He said that COVID-19 has society “far from normal,” and Apex’s situation is exactly why Senate Bill 5106 was passed.

“I am quite disappointed the board of supervisors thought this didn’t apply to Apex,” he said.

“With the emergence of the COVID-19 pandemic in 2020, it became clear that many developers and project applicants were having difficulties meeting statutory deadlines or other expiration dates, such as complying with validity periods and commencing projects within a certain timeframe,” read part of his letter. “This was due to many reasons, ranging from public health concerns and economic uncertainties to delays, closures and staffing issues in localities around the Commonwealth.”

Austin also wrote that the bill was used as a “temporary stop-gap measure to give the development community time to evaluate the market and get their projects moving again before losing permit rights.”

The county still can appeal the board’s decision, according to Lockaby.

“The board of supervisors has 30 days to appeal the board’s ruling. If they choose that route, it would be taken to circuit court and a judge would make a ruling,” he said after the meeting.

The county is still weighing its options, according to spokeswoman Tiffany Bradbury.

“Botetourt County will take the Board of Zoning Appeals (BZA) ruling … under advisement and further discussions will be had by the Board of Supervisors,” she wrote in an email.

Apex had already filed a lawsuit against the county and Pearson in Botetourt County Circuit Court prior to the meeting, saying that he lacked the legal authority to make his decision.

Loftin said “no decision has been made” on if or when it would drop the lawsuit against Pearson and the county.

A second lawsuit, filed late last year by a group of citizens opposed to the 612-foot turbines, challenges a permit issued to Rocky Forge by the Virginia Department of Environmental Quality.

The proposed complex of 14 mountaintop wind turbines would stand about twice as tall as the Wells Fargo tower in downtown Roanoke.

Povisils said Apex looks forward to getting back to work with the county whenever that might be, and he believes the construction could possibly start by the end of the year, with its completion taking approximately a year to complete, barring unforeseen circumstances.

Once the project is completed, it is projected to yield $1 million in tax revenue for the county in its first year of operation and $30 million over the lifetime of the project, he said.