Augusta Solar, landowners were rejected in 2019. The lawsuit lasted nearly four years.

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

It was not the first time the project was turned away. In 2019, the Augusta County Board of Supervisors rejected Augusta Solar in a 4-3 vote . At that time, the project was 2,700-acres with visual buffers included. Now, the project has been reduced to 1,600 acres with visual buffers.

After it was denied in 2019, Augusta Solar LLC and 13 landowners that would have leased the company land filed an appeal in the Augusta County Circuit Court . The case lasted for years, sometimes with years between filings, but it came to a close in early 2023.

Here's how the case was argued and decided.

The landowners file an appeal

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

“Supervisor [Carolyn] Bragg's motion to deny the application did not state a specific basis for denial of the application,” reads the complaint. “Instead, [Bragg] moved simply to 'deny the utility solar application presented to the county.'”

Before making the motion, however, the suit states Bragg argued the project could not be approved unless it conform to the comprehensive plan of the county. Before the supervisors voted, the Augusta County Planning Commission found the project was in accord 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 extend of the proposed solar energy system is not substantially in accord with at least a part of the comp. Plan or that the proposed solar energy system does not satisfy the requirements of the solar ordinance, including the general standard that a large solar energy system conform to the specific elementary of the comp. plan.”

According to county code § 25-70.4, proposals only require one element: They "shall conform to the Comprehensive Plan of the county or to specific elements of such plan."

The lawsuit is broken into two counts. The first argued the board acted arbitrarily, capriciously, and beyond the board's legal authority. The second charged the county with violating the Virginia Constitution.

The county responds

“This lawsuit is plaintiff's angry disagreement with the board's valid legislation action, and audacious attempt to claim speculative profits and damages in response,” reads the response. “Plaintiff's can have no valid claims when the board exercised its legitimate land use authority.”

The county's response said the board's actions speak for itself and “it is not required to state reasons for approval or denial of special use permit applications.”

“The board affirmatively states that the statements or motive of an individual board member, as a matter of law, are irrelevant,” the response reads.

The board is also responsible for interpretation and application of the comprehensive plan, arguing plaintiff's “cherry picked” the land for details to help their case.

Plaintiff's challenge constitutionality of the decision

The plaintiff's constitutionality argument cited Article I, Sec. 11, which guarantee's the right to private property.

“Taking or damaging of private property is not for a public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development.”

By prohibiting the solar development, the suit argues, the board limited their right to use their land as the company saw fit.

“The landowners are not industrial, commercial, or residential housing developers. Much of the landowners' property is currently in agricultural use, and the addition of the proposed solar energy system allows them to introduce a use that is complementary to that agricultural use. The board's denial of the application damages the landowners' property by restricting their right to use their property to generate income.”

The county's response argued the board did not take the plaintiff's land through eminent domain for a public use, but exercised its discretion in deciding to issue a special use permit or not.

“Plaintiff landowners remain in complete control and ownership of their property. The board has not appropriated plaintiffs' property for a public use in any way. Any such allegations of a 'taking' are conclusory and hollow as they are not supported by the facts alleged.”

The response also states, “Plaintiff's arguments are instead an audacious claim for 'wished for' future profits.”

Shades of Elm Spring

The back and forth was echoed recently in an Augusta County Planning Commission meeting, when the commission declined to recommend approval of the Elm Spring solar project .

Supervisor Carolyn Bragg, who is also acting as a member of the planning commission, argued against the small scale solar project, citing jobs, zoning, the rural viewshed, and taxes, she pointed to what the county has planned for Badgett’s property.

“The future use of the property looks like business residential and mixed uses,” said Bragg. “[Those] are the best options, should the property come out of land use. When I compare the seven to ten thousand per year revenue that would be generated if the property was developed, then I compare that to what could be potentially should it go into another use as indicated on a comprehensive plan. There's a difference in value there.”

The landowner in this case, Virginia "Ginny" Reynolds Badgett’s, addressed the difference between tax revenue in potential projects during the public hearing, saying it “falsely assumes that we want to sell the property at this time and take it out of farming, which we do not.”

“Revenue from taxes and utilities is not being lost because it was never had,” Badgett said. “Losing something means it exists in the first place, like the farm that's been in my family now for 90 years. Instead of the status quo, I'm offering the county an opportunity to actually increase revenue and economic impact from the farm while my family continues to maintain ownership.”

Judge ends the case

After several back and forth motions over the course of a year, a judge dismissed the second count, the constitutionality argument, in April 2020.

“This does not amount to a 'taking' as defined by the Virginia Constitution,” the judge wrote. “The Virginia Constitution does not authorize a remedy for every diminution. There must be some damage to the property itself, which does not include a mere infringement of the owner's personal pleasure or enjoyment.”

The case went silent in 2020 during the COVID-19 pandemic. Then, the plaintiff's requested the matter go to dispute resolution. In July 2020, the judge denied the motion. Citing case law, the judge declined to “invade” the board's “legislative authority by referring the matter to dispute resolution.

Foreshadowing the current application, the judge wrote “plaintiffs may still resubmit an amended plan for approval.”

The first count was never addressed. Both the landowners and the board jointly moved to dismiss the case with prejudice.

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

The project returns to the supervisors Wednesday

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

The company will first appeal the planning commission's decision to the supervisors. Then a public hearing will be held on the project's special use permit.

Lyra Bordelon (she/her) is the public transparency and justice reporter at The News Leader. Do you have a story tip or feedback? It’s welcome through email to lbordelon@gannett.com . Subscribe to us at newsleader.com .

This article originally appeared on Staunton News Leader: Augusta Solar, landowners were rejected in 2019. The lawsuit lasted nearly four years.