Limited Power: Energy Storage In Unzoned Counties

A key question for many local officials and landowners is what authority they have over the development of energy storage projects if the county has not adopted zoning. The answer is that without zoning, regulatory authority becomes much more limited.
Under the new Clean and Reliable Grid Affordability Act (CRGA), no county zoning means very limited land-use control and site development in the unincorporated areas, which includes all property outside of a municipality. Regulatory authority only exists in counties that have adopted formal zoning. Across the state, 56 counties have adopted zoning, leaving 46 counties unzoned. Most of those unzoned counties are located in the southern reaches of the state.
For counties without zoning, the development of energy storage facilities under CRGA could occur with very limited local influence. The new law did not grant counties regulatory authority where zoning does not already exist. Therefore, unlike counties with zoning, unzoned counties cannot:
• Prohibit building projects, including energy storage facilities.
• Establish or enforce siting standards.
• Require approval through a special or conditional use permit.
• Set restrictions on where systems locate.
In practical terms, this means energy storage facilities proposed in unzoned counties generally cannot be denied due to their location or impact on the land. However, the landowner on a proposed site must still agree to the development and voluntarily sign a lease or sell their property to the developer.
The question many local officials and landowners will be asking is, “What local authority does exist in an unzoned county?” Even in unzoned counties, local governments still have some limited powers that could affect development. These include:
• Enforcing building codes and issuing permits if construction codes have been adopted.
• Limiting road access and weight limits on county roads and requiring road use agreements.
• Regulating drainage and stormwater management when impacted by development.
• Working with fire protection districts to put measures in place for public safety.