Levy Court denies plans for solar complex near Smyrna

By Leann Schenke
Posted 9/28/21

DOVER — After hearing more than two hours of testimony about the potential environmental effects of a solar complex and the precedent its construction could set for the area, Kent County Levy Court denied plans for the proposed 230,000-panel Cedar Creek Solar facility.

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Levy Court denies plans for solar complex near Smyrna


DOVER — After hearing more than two hours of testimony about the potential environmental effects of a solar complex and the precedent its construction could set for the area, Kent County Levy Court denied plans for the proposed 230,000-panel Cedar Creek Solar facility.

The 4-3 vote that resulted in the site plan being denied received a round of applause after it was taken in the fourth hour of a Tuesday Levy Court meeting.

“These solar farms are going to happen, but the county has to do our homework first and make sure we do it right,” Commissioner Terry Pepper said after casting his vote, which decided the fate of the complex. “I was standing on the fence, and I got pushed over, and you folks, your testimony did that for me tonight.”

Commissioner Joanne Masten, who represents the district where the solar complex would have been located, made the motion to deny approval of the site plan. Her motion was seconded by Commissioner Jody Sweeney. A roll-call vote was taken in alphabetic order by each commissioner’s last name, which landed Commissioner Pepper with the swing vote.

Each commissioner also was asked to state a reason for their vote by the county’s lawyer.

Citing unanswered questions about the solar site and the desire to support constituents, commissioners Allan Angel, Masten, Sweeney and Pepper all voted to deny the construction.

“I was really hoping for a table (of the complex) because there’s a lot of unanswered questions and some things that came forth tonight,” Commissioner Angel said. “Since that didn’t happen tonight, I think I will vote to deny.”

Commissioners Eric Buckson, Jeffery Hall and Glen Howell voted in support of the plans, citing a potential lawsuit that could be filed, as other solar facilities have already been approved in Kent County.

“It’s 11:13 at night, and the best thing that I can do is go along, agree,” Commissioner Buckson said. “Here’s where I am: I don’t like the project. I believe what you’re saying. I understand what you’re saying. I do want to support farmers. Who doesn’t?”

However, he said, Freepoint Solar, a Texas-based company, is likely trying to build in Delaware based on state and federal incentives. He said the county’s laws are “not prepared” to legally prevent the facility from being constructed.

Commissioner Howell noted that voting against the complex means the commissioners are stipulating what a property owner can and cannot do on his or her private land.

“After all the verbiage and all the testimonies that were given tonight — some of which were quite touching and very informative — I don’t think anyone hit on the issue,” he said. “The real central issue that we should be voting on is can a person do what he wants with his property?”

Had plans been allowed to move forward, the complex would have covered 260.46 acres of nearly 530 acres across three parcels on the north sides of Lighthouse and Woodland Beach roads, east of Smyrna. The area is currently zoned for agricultural conservation.

The solar facility did receive earlier conditional approval from Levy Court’s Regional Planning Commission.

Earlier in the testimony, one of Commissioner Angel’s unanswered questions concerned RPC’s waiver of a tree requirement.

The county’s tree-mitigation ordinance requires one tree planted for every 3,000 square feet for nonresidential land development. In its application, Cedar Creek Solar sought a waiver to lower the number of required trees from 3,640 to 516.

Commissioner Angel asked for clarity on the tree waiver, saying that, per the county’s ordinance, a waiver does not absolve a company from planting the total amount of required trees — in this case, 3,640. Instead, he said, the company will have to “find another place to plant the trees — either on-site or off-site.”

“There’s no carte blanche, just removal of the requirement,” he said.

Saying she did not know if the waiver as proposed is “uncharacteristic,” Sarah Keifer, director of the county’s Department of Planning Services, said the planning commission did approve a total waiver and has done so in the past.

“I would say it may not be uncharacteristic, but it doesn’t comply with our code, which does require mitigation occur off-site if it can’t occur on-site,” Commissioner Angel said. “There’s no other option.”

The commissioner also asked if the project would be violating the Delaware Coastal Zone Act — which regulates new and existing manufacturing and heavy industrial activities along the coast of the Delaware Bay.

Ms. Keifer said the act doesn’t necessarily apply to the solar complex.

“Keep in mind, that act was originally written to protect that part of Delaware from heavy industry,” she said. “That was its motivation.”

As the solar panels would be installed on metal poles driven into the ground, Greg Moore, who represented Freepoint Solar at the meeting, said the complex would not have had a significant amount of impact on the land.

“Of all the things you could approve, this actually has the least amount of impact to the land itself,” Mr. Moore said. “There is not another use that allows such a light impact, but mostly, there’s not another use that allows the land to go back to farming.”

When those opposed to the solar complex had the opportunity to give testimony, many raised concerns about how the area will be returned back to farmland once the solar panels have lived out their lifespan.

The average existence of a solar farm is about 25-30 years. As solar panels are a relatively new concept in the United States, some people argued that there is not sufficient evidence the land on which a solar complex is built can be fully returned to the way it was.

Other people raised concern about potential glare the panels might cause airplanes coming and going from Dover Air Force Base.

Through tears, Sherry Foster said the property under discussion has deep ties to her family. She said she was born on one of the parcels and that her father still lives there.

“Sorry I get emotional, but it’s currently where my father still resides,” she said. “He hasn’t been notified. He hasn’t received an eviction notice. We are scrambling to try and find a place for him to live.”

She called the project “unfair” to the farmers who are leasing the property and to the “fauna that live there, the flora, the native vegetation, the Smyrna River — it’s historic.”

“The land itself is amazing. It has a lot of integrity, and I just feel like we’re depreciating it,” she said. “There’s more to the land than solar panels.”

When asked what he would choose on those parcels, either a housing development or a solar complex, Donald Goldsborough, who lives adjacent to the proposed site, said he would rather see homes there.

As the land is located in an agricultural conservation district, a housing development would be limited to one house every 4 acres.

“I think that would be a small footprint compared to this,” he said. “I would be more in favor of housing (to) be built on this under the agriculture conservation district rules.”