HB 711 is one of this year’s most closely watched energy bills in the Virginia General Assembly. If enacted, it would require localities to include more uniform standards in their zoning ordinances for certain solar photovoltaic projects seeking special use permits, placing some limits on how far local ordinances can go in restricting those projects.
Soon before her deadline of 11:59 p.m. on April 13, 2026, Governor Spanberger took one of the available actions on the bill, which had been sitting on her desk — she returned the bill to the General Assembly with minor recommendations for consideration at the General Assembly’s reconvened session on April 22, 2026. Therefore, HB 711’s final form has not yet been settled.
But whatever its final form, HB 711 would not preempt counties from saying “Nea” to solar projects, and does not establish true guardrails for those up-or-down votes.
The contrast between high hopes of developers supporting bills like HB 711 and the actual realities of the bill’s language highlights an important fact: you want to win at the county level, because your special use permit (“SUP”) hearing and vote is both your first chance and, almost certainly, your last chance to get the project approved.
If enacted, HB711 would foreclose counties from maintaining zoning ordinance provisions that create actual or “de facto” moratoriums on solar. That dragon might — might — finally be slayed.
The bill would create a more standardized ordinance framework by addressing issues such as setbacks, vegetative screening, panel height, stormwater, revegetation, wildlife passage, labor-related requirements and decommissioning. The disallowance of egregious setback limitations is especially significant.
But nothing in its text requires a locality to approve a SUP application. Local governing bodies would still retain significant discretion to deny an application. In 2025, counties exercised that discretion to deny projects 29% of the time, the second-highest year for denials over the span of time that UVA’s Weldon Cooper Center has been tracking these votes. The highest was 2024, at 34%.
And that matters a great deal, because a denial is likely impossible to reverse as a legal matter. In fact, I’m not aware of any successful attempt to overturn a solar project special use permit denial at the circuit court level. The bleakness of the prospect prevents most solar developers from seriously considering an appeal of a county denial.
I asked a Virginia litigator who is a veteran of appeals of local zoning denials to walk me through why this is the case. He guided me to a series of Virginia Supreme Court cases (including Board of Supervisors of Fairfax County v. The Southland Corporation, 224 Va. 514 (1982)) that lay out the legal standard that applies generally to judicial review of “legislative” local governing board actions, including solar SUP denials. It’s not a standard that any jilted solar developer (or battery storage or data center developer, for that matter) is likely to meet:
The action of the local governing body … is presumed to be valid. Inherent in the presumption of legislative validity is a presumption that the [local government legislative action is] not arbitrary, not capricious, but reasonable. Where such presumptive reasonableness is challenged by probative evidence of unreasonableness, the [local government action] cannot be sustained unless the governing body meets the challenge with some evidence of reasonableness.
“Some evidence of reasonableness” — watch that phrase.
The governing body is not required to go forward with evidence sufficient to persuade the fact-finder of reasonableness by the preponderance of the evidence. The burden is less stringent. If evidence of reasonableness is “fairly debatable,” the [action] must be sustained.
What does “fairly debatable” mean? It means this: if there are two positions, and the evidence offered by the two sides could lead “objective and reasonable persons” to either position, then the matter is “fairly debatable.”
A developer who has suffered the denial of an SUP for a solar project and wants to appeal the decision will lose unless it can provide evidence that there was no way an objective and reasonable governing body could have voted other than to grant the SUP. Or, as another authority has stated, a matter is not “fairly debatable” only if the local decision “passes the boundaries of reason and assumes the characteristic of merely arbitrary fact.”
In a case of county elected officials who are casting their votes based on the information provided to them by the county staff and the views expressed at the microphone by concerned citizens, it’s a near-impossible challenge for a developer to successfully characterize their actions as “merely arbitrary.” The litigator I consulted put it this way: for an appeal to have a chance, there would have to be nothing in the record supporting a “no” vote.
Recently, I was part of a solar SUP hearing in a rural Virginia county in which the reasons to oppose the project seemed especially slim, even accounting for my bias as my client’s attorney. Citizen opposition was mostly grounded in generalized anti-renewables feelings or political orientation, and the board had almost no discussion before the motion. But staff had prepared a script for a denial motion that had the magic words of “public health, safety, convenience, and welfare of the citizens.” And the project was voted down.
I asked the litigator: “Is that enough to make it ‘fairly debatable’?” The answer was “yes.”
If a solar developer does thread this ultimate needle — file an appeal and get a positive reception from the circuit court — what happens next? Most likely, the court will have ruled that there was a gap in the information and in the reasoning of the governing body, and send it back down for another review of the SUP application. It’s predictable that the board of supervisors will try a little harder the second time to make the matter “fairly debatable.” And I don’t think the supervisors are going to like the developer or its solar project any more than when it came through the first time.
My nonlegal advice, no matter what happens with HB711: just don’t lose.
Jared Burden is a partner with the Virginia-based law firm GreeneHurlocker who works extensively in Virginia counties assisting developers in permitting utility scale and community solar facilities. He can be contacted at jburden@greenehurlocker.com.
