Richmond Times-Dispatch: Bill that would allow utilities to sidestep local zoning passes House

Posted: Tuesday, January 24, 2017 9:50 pm
By ROBERT ZULLO and GRAHAM MOOMAW Richmond Times-Dispatch

A bill that would allow utilities to avoid local zoning and planning restrictions for substations and other “associated facilities” that accompany 138-kilovolt transmission lines was passed by the House of Delegates on Tuesday, over the objections of municipal and county governmental groups and some delegates who said it undercuts local control of land use.

In a 67-30-1 vote that went across party lines, the House passed House Bill 1766, patroned by Del. Gregory D. Habeeb, R-Salem, and requested by Appalachian Power. The bill made it through the House’s Commerce and Labor Committee on a 18-1 vote last week and a companion bill, Senate Bill 1110 by Sen. William M. Stanley Jr., R-Franklin County, was referred to the Senate Commerce and Labor Committee, which meets again on Monday.

Both bills would mean that when the State Corporation Commission, which regulates utilities, issues a certificate of public convenience and necessity for construction of 138-kilovolt transmission lines, associated projects such as substations and switchyards “shall be deemed to satisfy local comprehensive plan requirements and all local zoning ordinances.”

The Virginia Association of Counties and the Virginia Municipal League oppose the legislation.
Only Appalachian Power has the 138-kilovolt lines to which the legislation would apply, said Ken Schrad, a spokesman for the SCC. Most transmission lines are larger, he added, carrying as much as 760 kilovolts.

“Current law states that a certificate issued by the SCC to construct and operate transmission lines only satisfies local zoning ordinances with respect to the line and not associated facilities,” Schrad said. “Thus, a substation or switching station associated with a line currently needs to go through the local zoning process.”

John Shepelwich, a spokesman for Appalachian Power, said the 138-kilovolt lines are “backbone” transmission lines that are lately increasingly needed for new economic development projects such as industrial parks in areas lacking sufficient power.

Shepelwich said he could not recall a specific instance where a locality had barred a substation associated with one of the lines.

The utility requested the bill so elements of projects cannot be “cherrypicked” by counties and towns to defeat them, he said.

The House vote came after a heated floor exchange between Habeeb and Del. Robert G. Marshall, R-Prince William.

Habeeb stood to address what he called “misconceptions that folks in this building and outside this building have been spreading.”

“This is not taking anything away from local government because they’ve never blocked one of these projects with local zoning because they’ve never had the authority to do so,” Habeeb said.

In 2012, the legislature passed and Gov. Bob McDonnell signed legislation allowing utilities what amounted to an either/or approach for 138-kilovolt transmission lines. The law said utilities shall either obtain a certificate from the SCC or obtain approval pursuant to “any applicable local zoning ordinances by the locality or localities in which the transmission line will be located.”

Habeeb said that prior to 2012, local governments had “no role whatsoever” in the types of transmission lines and facilities targeted by his bill. That year, he said, the legislature decided to give localities a role for “jurisdiction-specific” projects by letting them go through either the SCC or the local government.

“Everybody understood this to mean the entire project,” Habeeb said, because separating the facilities and lines would allow one locality to “hold the project hostage.”

Habeeb said that under his bill, localities still would have standing to be heard at the SCC and request that projects go through a local zoning process.

“This sets a horrible precedent,” Marshall argued. “Zoning powers are properly exercised by the elected representatives of the people, not the corporate stockholders of a private utility.”

Marshall said a Walmart or a Wawa would never get similar zoning leeway, prompting a barb from Habeeb.
“I’m a little surprised to hear that the gentleman from Prince William doesn’t know the difference between Wawa and a regulated utility in the Commonwealth of Virginia,” Habeeb said.

“The gentleman’s gratuitous comments about me not knowing the difference between Wawa and this are simply that: gratuitous comments,” Marshall replied.

Del. Peter F. Farrell, a Henrico County Republican and son of Dominion Resources CEO Tom Farrell, abstained from the vote under the House rule for conflicts of interest.

In 2013, a decision by the SCC approving Dominion’s controversial Surry-Skiffes Creek project, which seeks to build a 500-kilovolt transmission line across the James River and a switching station in James City County near Carter’s Grove plantation, was appealed to the Virginia Supreme Court.

The Supreme Court said the station could not be considered a “transmission line” under state code and would be subject to local zoning regulations.

The James City County Board of Supervisors has yet to decide on a special-use permit for the station, and the U.S. Army Corps of Engineers is still evaluating the request to build the transmission line, which is opposed by conservationists and preservationists, including the National Park Service, who say it will mar the view from Jamestown Island and other historic areas.

In an email, Dominion spokesman David Botkins said the utility is not advocating for Habeeb’s bill but has no objection, either.
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