Kent County Levy Court tables decision on Cedar Creek Solar site plan until new year

By Leann Schenke
Posted 12/22/21

DOVER — At about two minutes to midnight on Tuesday, the Kent County Levy Court commissioners tabled a proposed site plan application for Cedar Creek Solar.

The vote to table the application …

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Kent County Levy Court tables decision on Cedar Creek Solar site plan until new year


DOVER — At about two minutes to midnight on Tuesday, the Kent County Levy Court commissioners tabled a proposed site plan application for Cedar Creek Solar.

The vote to table the application came after a more than four-hour public hearing with emotion-filled testimony from members of the Lenape Indian Tribe of Delaware, neighbors of the proposed complex and a representative from the League of Women Voters of Delaware, among others.

Commissioner Joanne Masten, who represents the area where the solar complex would be built, made a motion to table the application in order to allow time for the commissioners to introduce ordinances that would adjust the standards for accepting solar applications in Kent County.

Those ordinances have been in the works since Cedar Creek Solar’s first application was denied by the commissioners in September. The company is in the process of appealing Levy Court’s decision — the application heard Tuesday is a separate one.

Commissioner Masten’s motion failed in a 3-3 vote, as Commissioner Glen Howell was absent from the meeting. Commissioner Masten then made a motion to deny the application, which again failed in a 3-3 tie.

Terry Pepper, president of the commissioners, suggested they table the decision — this time citing the reason that, with Commissioner Howell’s absence, there was no tie-breaking vote. County Administrator Michael Petit de Mange agreed, saying that appeared to be the only way the commission would get four affirmative votes or four against.

“I think the only logical thing that we could do now is to table it,” Commissioner Pepper said.

This public hearing marks the fourth time an application related to Cedar Creek Solar has come before Kent County government. Each hearing has gotten longer, with more people speaking in favor or opposed to the application.

During the Tuesday meeting, some testimony was short, about five minutes. Others spoke for nearly 20 minutes.

Cedar Point Solar, an affiliate of the larger, Texas-based company Freepoint Solar, is seeking approval from the commissioners to build a large solar array across 260.46 acres of property east of Smyrna.

The company has already purchased one parcel of property with plans to purchase two more. The end goal is to combine all three properties and install a solar array with about 230,000 panels.

The panels would not cover the entire property — the remainder of the property without panels would be open to hunting, according to the site plan.

Currently, the properties are being used for farming and residential purposes.

The properties are zoned agricultural conservation. As solar is a public utility, a solar complex is a permitted use within that zoning but plans must receive approval from the commission before installation.

Cedar Creek Solar’s initial site plan was given conditional approval by the Regional Planning Commission before being denied by the Levy Court commissioners in a 5-4 vote.

While the company is in the process of appealing that decision, it submitted a new application that took into account concerns from the commissioners and the public who testified previously.

The new application includes a larger tree buffer around the solar panels, so that they are less visible to residents in the area. The second application also put more distance between the panels and wetlands on the properties.

In its site plan, Cedar Creek Solar pledges to decommission the panels so that the property can be used for farming again after the panels have reached the end of their lifespan (25-30 years).

Much like the initial application, Cedar Creek Solar’s second application received conditional approval from the planning commission before going before the commissioners for final approval. The public hearing is part of the approval process.

Despite comments from the commissioners that the hearing was meant to be a discussion of land use, many of those who testified spoke about the benefits of solar as an answer to the energy crisis or to express their fears of solar.

Ruthann Purchase, cultural mapping program manager for the Lenape Indian Tribe of Delaware Federal Census District and founder of the Lenape Union Land Trust, testified in favor of solar, saying it offers young people the opportunity to be stewards of their homelands through renewable energy.

“We believe that as young people feel the joy and the belonging, the sense of place and roots, that they will take heart and take hope and move into the future by not only demanding their rights but taking responsibility,” she said. “We are redefining good citizens.”

Simon Purchase James, Lenape Forest Garden volunteer coordinator, also testified in favor of solar. A native of Leipsic who moved away for work, Mr. James said this project makes him excited for the future in Delaware.

“This project is the first project that I have heard about in the state of Delaware that I am excited about,” he said. “That I believe will create a future that I can be excited to live in, that I can be excited to have children live in and that I can be excited about returning to Delaware for.”

A native of Smyrna, Tricia Hurd Nash, spoke out against the solar complex, saying the complex is a poor use of farmland. Ms. Nash is a fourth-generation farmer who owns land near the proposed site of the complex.

“I’ve lived within a mile of my home that I live in right now with my husband my entire life,” Ms. Nash said. “You want to bring ancestral stuff into this? My grandfather, my father are rolling over in their graves at the idea of this.”

Ms. Nash spoke of a 2011 lawsuit against Levy Court called “Farmers for Fairness.” She said in that case, farmers were fighting against restrictions on the number of houses that could be built on land near the potential site of Cedar Creek Solar.

Ms. Nash said the farmers won the lawsuit against the county, yet farmers “still don’t have the land rights we should have.” She said Delaware farmers have historically accepted restrictions to their land in order to protect it and ensure it stays farmland. Those restrictions, she said, have devalued the land.

“You have made us prime pickings for these types of ventures,” Ms. Nash said. “This county did that to our area.”

Ms. Nash said it’s unfair to farmers that the county’s land-use laws permit solar array as a use.

“Through a conditional-use process, under the guise of a public utility, they are allowed to come in and put in an industrial solar site,” Ms. Nash said. “You guys have got to stop the craziness right now.”

Peggy Schultz, who spoke on behalf of the League of Women Voters of Delaware, said the league supports the project because of the renewable energy it offers.

“As the lowest-lying state and arguably one of the country’s most vulnerable in terms of sea level rise, it’s our obligation to model good climate change aversion behavior,” she said. “The solar panels that comprise this project will aid in that effort.”

John Nichols, who identified himself as an advocate for reliable and affordable electricity, spoke against solar and the potential Cedar Creek Solar complex. Mr. Nichols said solar could impact the health of farmland and could create job loss in the state.

“Any temporary green jobs that have materialized during the development of these alternative energy programs disappear when they displace reliable, good-paying jobs that are not subsidized to the extent alternative energy is,” Mr. Nichols said.

Mr. Nichols suggested the commissioners ask Freepoint to pay for an independent review of any claims the company might make about the safety of solar.

“At this point, it sounds a lot like, 'Trust me,'” he said. “I don’t trust anyone other than God. I’m not going to trust them. Prove it.”

During Mr. Nichols’ testimony, Commissioner Eric Buckson interjected to say the commissioners are a “land-use regulatory body.” He said the Levy Court’s job is to understand what the application is as it relates to the current land-use codes and then “make a call.”

“We’re not here to decide the capabilities of solar panels and its effect,” he said. “I enjoyed your presentation. You’ve complimented us for allowing you and others to continue on. I don’t have the authority to shut you down and I’m not. … I think what we’re getting into is deciding things that we can’t decide.”

An earlier version of this story incorrectly identified RuthAnn Purchase and Simon Purchase James as members of the Lenape Indian Tribe of Delaware. The article has been updated to reflect that Ms. Purchase is the cultural mapping program manager for the Lenape Indian Tribe of Delaware and founder of the Lenape Union Land Trust. Mr. Purchase James is the Lenape Forest Garden Volunteer Coordinator. 

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