Virginia Supreme Court: Dominion can't bypass James City zoning for new power line project

Peter Dujardin
Contact Reporterpdujardin@dailypress.com

JAMES CITY — The Virginia Supreme Court ruled Thursday that the State Corporation Commission was wrong in exempting the state's largest electricity provider from needing local approval for a crucial part of its proposed James River power line.

The high court said a planned switching station in James City County — a station Dominion Virginia Power asserts is fundamental to the project — must win county zoning approval, and that the SCC erred in its 2013 finding that such authorization wasn't necessary.

The high court unanimously upheld the SCC's certificate of approval for the project, siding with the SCC's finding that Dominion had "reasonably minimized" the impact to local historic areas, including Jamestown Island and the Colonial Parkway.

"The record is not without evidence to support the Commission's choice of location for the route in light of all competing considerations," the seven-member court wrote.

That came over objections from James City County and historic preservationists who argued that the new electrical towers — some as tall as the Statue of Liberty — would forever mar the pristine view of the historic waterway.

But the Supreme Court's narrow 4-3 ruling on the zoning issue sets the stage for a possible battle between Dominion and James City County over whether the station — where power would be converted from one voltage to another — should be built on county land near Skiffes Creek.

And that has the potential to become heated.

James City County has led the fight against the project, and Dominion's bid to win zoning approval could be blocked or take significant time. Meanwhile, the power company is taking an urgent tone, wanting to get started soon on the power lines and asserting that delays could trigger power outages on the Peninsula and beyond.

Even as the state approval process has been underway, Dominion is separately applying for federal approval through the Army Corps of Engineers. Both state and federal approval is necessary for the new transmission line to go forward.

In November 2013, the SCC found that the proposed switching station was integral to the transmission line — and Dominion could thereby bypass local zoning approval. If upheld, that could have set precedent in Virginia, stripping localities of their traditional power to approve such buildings.

But the Supreme Court reversed the SCC. It pointed out that although the General Assembly exempted transmission lines from local zoning — with approval instead the province of the SCC — the legislature granted no such exemption for switching stations.

If lawmakers had wanted to, the Supreme Court said, they could have done so with "ease."

"A layperson can define the plain meaning of a transmission line," said the majority opinion by Justice LeRoy F. Millette Jr., defining it as "the wires used to transmit electric current over great distances and the structures necessary to physically support those wires."

"A switching station remains just that: a station," Millette added. "... It is reasonable for such facilities to be subject to local zoning, while continuous transmission lines are exempt because of the onerous nature of navigating local zoning ordinances for all the acreage over which transmission lines cross."

Though a switching station is fundamental to a transmission line, the court said, so too are power plants, which do need zoning approval. And just because a transmission line might "continue" after going through a switch "does not by necessity incorporate the facility into the transmission line," the court said.

Dominion, Virginia's largest electricity provider, wants to build a new high-voltage transmission line across the James River — from Surry County to James City County and beyond — to provide the Peninsula with a new energy source.

Saying it picked the "least impactful" route it could, Dominion says a new 500-kilovolt line is sorely needed to make up for forthcoming shutdowns of Yorktown's coal-fired plants because of stringent new federal environmental regulations.

Burying the lines under the river, the company says, would cost significantly more, cause more environmental damage, and wouldn't deliver adequate power.

But James City County and historic preservationists are fighting the proposal, contending the new line will destroy the vistas that Capt. John Smith and the first English settlers saw when they sailed the James in early 1607.

They assert that the towers will damage the view from the Colonial Parkway, the tip of Jamestown Island and Carter's Grove Plantation. They say Dominion hasn't fully explored alternatives, such as other river crossings.

In its ruling, the Supreme Court cited an SCC hearing examiner's report that concluded that the towers wouldn't change the "character" of the river, that there's other shore development nearby, and that the most significant historic areas are several miles from the line's location.

"Considering this record, we cannot say that the (SCC) erred in concluding that the proposed route … across the James River reasonably minimizes the line's adverse impacts," the Supreme Court said.

On Thursday, Dominion said it was happy with the bulk of the Supreme Court's decision, saying the company would "continue to move forward with plans to construct this critical infrastructure so that reliable service in the region can be maintained."

"There is an undeniable fact that there is an urgent need to deliver more energy to the Peninsula, and the court has affirmed that the (SCC) has chosen the best option," Dominion Virginia Power President Robert M. Blue said in a statement.

"They upheld up the most important core of our argument — that we need an overhead line to provide power to the Peninsula," and that the selected route minimizes the impact, Dominion spokeswoman Bonita Harris said.

"We have to work out the piece about the Skiffes Creek switching station," she added. "They upheld the most important part, and we just have to work out the other piece. … The glass is three quarters full, it's not one quarter empty."

Andrew McRoberts, a Richmond lawyer who represented James City County, Save the James Alliance and the James River Association, said he would have rather seen the court toss the SCC's approval entirely.

"It certainly wasn't the home run that we would have hoped for," he said, saying that "didn't surprise me," given the deference the court gives to the SCC.

"But it affirmed the role of local government in (locating) an electrical facility like the proposed switching station at Skiffes Creek," McRoberts said. "There's an approval role here, and I am pleased that the Virginia Supreme Court has recognized that."

At a hearing in January, McRoberts spent much of his time on the zoning issue, saying that was his best chance at winning a reversal.

Supreme Court reversals of SCC rulings are rare, and it appears the court struggled with this decision. Not only was it delayed — coming two months past its normal turnaround time for such cases — but opinions were far from unified.

Justice William C. Mims wrote a dissent that was joined by two justices — Donald W. Lemons and Elizabeth A. McClanahan, contending the court should have upheld the SCC's zoning exemption.

The relevant question, those justices said, isn't whether switching stations are "facilities," but whether they are part of "generation" or "distribution."

"The fact that a transmission switching station is a facility does not make it more reasonable for it to be subject to a local zoning ordinance than the remainder of the transmission line," Mims wrote. "…Clearly, the Skiffes Creek Switching Station is designed to facilitate, and in fact is integral to, the transmission of electricity."

In the majority decision, Millette acknowledged the deference the court typically gives the SCC, saying the case features "weighty environmental and historical impacts to beloved areas of the Commonwealth, as well as pressing power needs" to state residents.

"We make our decision with deep respect for the long-held level of deference accorded to the Commission, while recognizing our duty to uphold the law of the Commonwealth as written," he wrote.

Dujardin can be reached at 757-247-4749

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