Does a Virginia county's zoning ordinance protect my pre-2018 ground-mounted solar facility on agricultural land if the ordinance only mentions 'solar power panels' for residential use?

Subject

Whether Loudoun County's zoning ordinance, which allows "solar power panels" as a residential accessory use but does not explicitly mention ground-mounted solar facilities, "regulates" ground-mounted solar facilities for purposes of the grandfather provision in Chapters 495 and 496 of the 2018 Acts of the General Assembly.

Plain-English summary

In 2018 the Virginia General Assembly passed two identical bills (Chapters 495 and 496) that created § 15.2-2288.7, the statute governing local zoning of solar energy facilities. The statute did two things. First, it said that ground-mounted solar facilities on agricultural land that operate under the agricultural net energy metering provisions are permitted by right (with height and setback compliance) unless the local ordinance provides otherwise. Second, in a separate "grandfather" provision, it protected pre-existing facilities: a ground-mounted solar facility existing on January 1, 2018 is a legally existing nonconforming use under § 15.2-2307 unless the locality already regulated such facilities in its zoning ordinance, either expressly as a solar facility or as a permitted principal or accessory use.

Loudoun County had a pre-2018 ground-mounted solar facility on agricultural land used for agricultural purposes. The facility operated under § 56-594 (agricultural net metering) and produced up to 500 kilowatt-hours, with excess fed back to the grid. Loudoun's zoning ordinance allowed "solar power panels" as a residential accessory use, but did not mention ground-mounted solar facilities, solar facilities generally, or anything similar. The County's position was that "solar power panels" covered all solar facilities, including ground-mounted, so the grandfather provision did not apply.

The County Attorney asked AG Mark Herring for guidance, and Herring (in an opinion that issued just before the change in administration) sided against the County. The phrase "solar power panels" in a residential accessory use context does not regulate ground-mounted solar energy generation facilities on agricultural land used for agricultural purposes. The County's ordinance was silent on those facilities, and silence means the grandfather provision applies. The facility is a legally existing nonconforming use under § 15.2-2307, and the County cannot require its removal.

The AG also pointed out that, if the ordinance had specifically regulated the facility (as a permitted principal or accessory use, or expressly as a solar facility), the grandfather provision would not apply but the facility would benefit from § 15.2-2307's vested rights protections against future regulatory changes. Either way, pre-2018 facilities have meaningful statutory protection.

What this means for you

If you own a pre-2018 ground-mounted solar facility on Virginia agricultural land

The opinion holds that a pre-2018 ground-mounted solar energy generation facility on agricultural-zoned land used for agricultural purposes is a legally existing nonconforming use under § 15.2-2307 and not subject to removal, where the local ordinance does not regulate ground-mounted solar facilities as a permitted principal or accessory use or expressly as a solar facility. It holds that an ordinance allowing "solar power panels" only as a residential accessory use does not regulate such facilities, and notes that nonconforming uses generally continue until they are abandoned.

If you are a county or municipal zoning administrator in Virginia

The opinion holds that an ordinance which addresses only "solar power panels" as a residential accessory use does not regulate ground-mounted solar energy generation facilities on agricultural land, so a pre-2018 facility there is grandfathered as a nonconforming use under § 15.2-2307 and is not subject to removal. It holds that where an ordinance does permit such a facility as a principal or accessory use, the grandfather provision does not apply, but the use is protected from certain future regulatory changes under the vested-rights statute, § 15.2-2307.

If you are a solar developer or installer

The opinion holds that pre-2018 ground-mounted facilities on agricultural land are grandfathered where the local ordinance is silent on them, and that under § 15.2-2288.7(B) a ground-mounted facility on agricultural-zoned land operated under § 56-594 or § 56-594.2 is permitted by right, subject to height, setback, and historic-district compliance, unless the local ordinance provides otherwise.

If you are an agricultural landowner considering net metering

The opinion holds that a ground-mounted facility on agricultural-zoned land operated under the agricultural net metering provisions (§ 56-594 or § 56-594.2) is permitted by right under § 15.2-2288.7(B), subject to height, setback, and historic-district requirements, unless the local ordinance provides otherwise.

If you are a neighbor of a pre-2018 facility seeking its removal

The opinion holds that a pre-2018 ground-mounted facility on agricultural land is a legally existing nonconforming use not subject to removal where the local ordinance did not specifically regulate such facilities, and notes that nonconforming uses continue until they are abandoned.

Common questions

Q: What makes a solar facility "ground-mounted"?
A: Generally, an installation where the panels rest on a structure built on the ground rather than mounted on a roof. The opinion uses the term throughout but does not formally define it. Most solar industry usage matches: roof-mounted versus ground-mounted versus carport-mounted.

Q: Does the protection apply to all agricultural land, or only to specific zoning districts?
A: The grandfather provision applies to property zoned agricultural and used for agricultural purposes (the opinion's specific scenario). The text of § 15.2-2288.7(B) is keyed to property "zoned agricultural and to be operated under § 56-594 or 56-594.2." Both elements (zoning and operational use) matter.

Q: What if my facility was installed in late December 2017 but interconnected in February 2018?
A: The grandfather provision uses "existing as of January 1, 2018." Whether a facility exists turns on physical installation, not necessarily on grid interconnection. A facility physically installed and operational before January 1, 2018 is likely grandfathered even if utility paperwork came later. Consult an attorney on the specific facts.

Q: Does the grandfather provision protect against future statutory changes?
A: Probably not. The grandfather provision is a statutory protection that the General Assembly created and could amend or repeal. The vested rights protection under § 15.2-2307 has independent constitutional grounding, but its application depends on the facts of each case. Engage counsel for any specific scenario involving statutory amendments.

Q: Can the county still require me to comply with height and setback rules?
A: Yes. Even within § 15.2-2288.7's permitted-by-right framework, the facility must comply with the local zoning district's height and setback requirements. The grandfather provision does not exempt pre-2018 facilities from those baseline requirements.

Q: What happens if I expand my pre-2018 facility?
A: Expansion of a nonconforming use is generally not protected. The grandfather provision protects the facility as it existed on January 1, 2018; an expansion would be a new installation evaluated under the current ordinance. You might still be able to expand under § 15.2-2288.7 if your locality has not enacted a contrary ordinance, but the expansion is treated as new construction.

Background and statutory framework

The 2018 solar zoning legislation came out of years of friction between localities and rural landowners over agricultural net metering installations. Some counties had been treating ground-mounted solar as an unpermitted commercial use of agricultural land. Owners argued that an installation that powered the farm and incidentally produced excess for the grid was agricultural in character, not commercial.

The General Assembly's response was the dual structure of § 15.2-2288.7: permitted by right going forward (subsection B), and statutory grandfather protection backward (the Chapters 495/496 transition provision). Both parts were drafted to reduce litigation and create predictability.

This opinion is interpretively important because it draws a hard line. A locality cannot retroactively bring pre-2018 facilities under regulation by pointing to incidental ordinance language about "solar power panels" in a residential context. The grandfather provision means what it says: silence on ground-mounted solar facilities for agricultural use means the pre-2018 facility is protected.

The interpretive moves the AG used are standard Virginia tools:

• Plain meaning of "solar power panels" in context. "Solar power panels" as a permitted residential accessory use is a specific narrow phrase; it does not reach a 500 kW agricultural net metering installation on an agricultural-zoned parcel.
• Statutes as connected systems (Miller & Rhoads). The grandfather provision and the substantive section work together; reading them broadly to protect pre-existing facilities is consistent with the dual structure.
• Legislative intent (Cuccinelli). The General Assembly wanted to protect both pre-existing facilities and the agricultural net metering program. A narrow reading of the grandfather provision would undermine that intent.

For Virginia land use practitioners, the opinion is the leading AG-level statement on the 2018 solar zoning legislation and is regularly cited in BZA and circuit court proceedings.

Citations and references

Statutes:

• Va. Code Ann. § 15.2-2288.7 (solar facilities and local zoning)
• Va. Code Ann. § 15.2-2307 (nonconforming uses)
• Va. Code Ann. § 56-594 (net energy metering)

Cases:

• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 (2012) (legislative intent)
• Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 292 Va. 537 (2016) (statutes as connected systems)

Legislative history:

• 2018 Va. Acts cc. 495, 496 (creating § 15.2-2288.7 with grandfather provision)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/21-104-Rogers-opinion-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH OF VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

January 13, 2022

The Honorable Leo P. Rogers
Loudoun County Attorney
1 Harrison Street, S.E.
Post Office Box 7000
Leesburg, Virginia 20177-7000

Dear Mr. Rogers:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a locality "regulates ground-mounted solar facilities in the provisions of its zoning ordinance" within the meaning of Chapters 495 and 496 of the 2018 Acts of the General Assembly if the locality's zoning ordinance contains no express reference to the terms "ground-mounted solar facility" or "solar facility" anywhere in its zoning ordinance, but does allow "solar power panels" as a permitted use or structure in connection with and incidental to the principal use of a property as residential.

Background

You relate that a ground-mounted solar energy generation facility was constructed on a piece of land in Loudoun County prior to January 1, 2018 and continues to exist today. The land is situated in an agricultural zoning district, is used for agricultural-related purposes, and has no structures on it other than the solar facility. The solar facility is operated under the agricultural net energy metering provisions of § 56-594 and produces up to 500 kilowatt hours for multiple homes and buildings on other lots with excess energy fed into the grid.

The supplemental district regulations of the County's zoning ordinance allow "solar power panels" as an accessory use or structure in connection with and incidental to the principal use of a property as residential. The zoning ordinance does not contain any other reference to solar power panels or solar panels, and the terms "ground-mounted solar facility," "ground-mounted solar energy generation facility," and "solar facility" do not appear anywhere in the zoning ordinance.

Applicable Law and Discussion

Section 15.2-2288.7 governs the local regulation of solar facilities. Subsection B of the statute provides, in relevant part, that

Unless a local ordinance provides otherwise, a ground-mounted solar energy generation facility to be located on property zoned agricultural and to be operated under § 56-594 or 56-594.2 shall be permitted, provided that such installation is (a) in compliance with any height and setback requirements in the zoning district where such property is located and (b) in compliance with any provisions pertaining to any local historic, architectural preservation, or corridor protection district adopted pursuant to § 15.2-2306 where such property is located. Except as provided herein, any other solar facility proposed on property zoned agricultural, including any solar facility that is designed to serve, or serves, the electricity or thermal needs of any property other than the property where such facilities are located, shall be subject to any applicable zoning regulations of the locality.

This statute was enacted via Chapters 495 and 496 of the 2018 Acts of General Assembly, which are identical pieces of legislation. The grandfather provision in Clause 2 of each of those chapters provides:

[T]he provisions of this act with respect to ground-mounted solar energy generation facilities shall become effective on January 1, 2019. Unless a locality regulates ground-mounted solar facilities in the provisions of its zoning ordinance as a permitted principal or accessory use, or expressly as a solar facility, a ground-mounted solar energy generation facility existing as of January 1, 2018, shall be deemed a legally existing nonconforming use under § 15.2-2307 of the Code of Virginia and shall not be subject to removal.

The ordinance at issue does not define the term "solar power panels." Section 15.2-2288.7 specifically uses the phrases "solar facility" and "ground-mounted solar energy generation facility." These phrases are not defined by the statute. However, "[w]hen construing a statute, [the] primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Further, Virginia's courts have "long recognized that 'statutes are not to be considered as isolated fragments of law, but as a whole, or as parts of a great connected, homogeneous system, or a single and complete statutory arrangement.'"

You advise that the County maintains that use of "solar power panels" in the ordinance means all solar facilities, including ground-mounted solar facilities, and that allowing them as an accessory to a residential use is sufficient to avoid application (for all properties regardless of their actual use or zoning classification) of the grandfather provision of the statute, which deems a ground-mounted solar energy generation facility existing as of January 1, 2018, a legally existing nonconforming use. If those interpretations were correct, the grandfather provision of the statute would not apply to the solar facility in question.

"In the context of zoning, 'grandfather' provisions generally are used to protect a nonconforming use, which is a use lawfully existing on the effective date of the zoning restrictions and continuing since that time in nonconformance to the ordinance." "These uses are permitted to continue, although technically in violation of the current zoning regulations, until they are abandoned."

Taken together, the grandfather provision and the language and structure of § 15.2-2288.7 indicate that the grandfather provision is broader than the County's interpretation. A locality's zoning ordinance that only allows solar power panels as an accessory to a residential use, even if that term encompassed ground-mounted solar energy generation facilities, does not deprive owners of agriculturally zoned and used property with solar facilities of the protections of the grandfather provision.

The purpose of the grandfather provision is to expressly permit the continued use and operation of then-existing ground-mounted solar energy generation facilities when those facilities were not already regulated under a locality's zoning ordinance as a permitted principal or accessory use, or expressly as a solar facility, where they were situated. The subject property is situated in an agriculturally zoned district and is used for agricultural purposes. The County's zoning ordinance is silent as to ground-mounted solar energy generation facilities on properties in agriculturally zoned districts that are used for agricultural purposes. As such, the County's zoning ordinance does not regulate this particular ground-mounted solar energy generation facility as a permitted principal or accessory use, or expressly as a solar facility, where it is situated. Therefore, the grandfather provision deems it a legally existing non-conforming use under § 15.2-2307 and the facility is not subject to removal.

If the zoning ordinance did permit the facility as a principal or accessory use, the grandfather provision would not apply, but such use would be protected from certain future regulatory changes under Virginia's vested rights statute. VA. CODE ANN. § 15.2-2307.

Conclusion

It is my opinion that a locality's regulation, in its zoning ordinance, of "solar power panels" as a permitted residential accessory use does not constitute regulation of "ground-mounted solar energy generation facilities" as a permitted principal or accessory use, or expressly as a solar facility, on property in an agricultural zoning district and used for agricultural purposes. Further, a ground-mounted solar energy generation facility existing prior to January 1, 2018, situated on such a property in such a locality, would be covered by the grandfather provision in Chapters 495 and 496 of the 2018 Acts of the General Assembly and would be deemed a legally existing non-conforming use under § 15.2-2307 and not be subject to removal.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General