Commissioners unanimously approve zoning code amendments regulating proposed solar energy farms

By John Estridge

It was ironic the Franklin County Commissioners unanimously approved an amendment to the Franklin County Zoning Code concerning solar energy farms Tuesday night April 20, as a freak snowstorm blew into the county.

The irony, beyond having a late April snowstorm, is the commissioners and county attorney Grant Reeves seemed to sense more coming in on the leading winds of that cold front than just snow. There was a sense of urgency in Tuesday night’s actions. Three times during the three-plus-hour meeting Reeves said if a company comes in and fills out an application for a conditional use for a solar energy farm and the commissioners have not approved an amendment — which includes a mandatory zoning change for a solar energy farm — it will be like “the wild west.”

Reeve’s first mention of the “wild west” term came in answer to Bath Township resident Kim Ramsey’s question about what happens to the three leases on file concerning potential solar farms in the county if the commissioners passed the proposed amendment on Tuesday night.

“Right now (without the amendment) if they (company wanting to put in a solar farm) have a ground lease, they could come in and attempt to apply,” Reeves said. “We don’t have anything on the books so we’d have to figure out how to regulate that and deal with it if they attempted to apply at the APC office. Once this (solar amendment) is in place, they have to have taken steps toward substantial completion to get vested rights under a prior version of an ordinance. I don’t think any company would attempt to argue just recording a couple of leases would trigger that, they might, but I don’t think it would stick. If they actually had gone out, had some approval and done quite a bit of work toward substantial completion, maybe they had a vested interest and they could go forward, but they would have a very tough argument if they tried to act on the prior ordinance right now no more than they’ve gotten done.

“The further they get in the process, the harder it is for us to say they don’t have the vested right under the current system,” he continued. “If people do try to change an ordinance after somebody has invested $1 million, then there is a state law that says there is a vested right. But right now I think they would have a really tough argument arguing they had a vested interest. If they walk in tomorrow and applied and there’s nothing adopted tonight, then it would be sort of that wild west scenario where Tammy Davis (APC attorney) and I have to figure out how in the heck the thing is regulated.”

The second time was near the end of the meeting when Reeves told the commissioners their options on what they could do concerning the proposed amendment. He went through the scenarios, but then told the commissioners, as the county attorney, he wanted to get something in place right now and then work to further amend the amendment in the very near future.

“I would legally prefer to get something in place (Tuesday night),” Reeves said. “That’s what started this whole process because it is fuzzy on exactly what happens with a special exception or a conditional use. Ordinarily, I would say on a special exception or a conditional use if it’s not included, you just can’t do it. The problem with this is if it’s not included and you say you can’t do it, you just banned it. We have that state law that says you can’t ban it so it throws us into this wild west scenario where I think we would have to negotiate everything. We would have to negotiate all those setbacks; we would have to negotiate everything. Where, if you adopt something, it gives you a baseline going forward.”

Reeves said if someone comes in after commissioners adopt something that establishes a baseline, the commissioners can tweak the ordinances, and the companies would have to abide by additions to the baseline put on by the Board of Zoning Appeals, the Area Plan Commission and the commissioners.

“So, in particular, if you adopt what there is tonight, if you wanted more insurance (the companies must have in place), based on the facts and circumstances of that application, they could impose the insurance as an additional condition in the approval of a particular project. Just because you have a baseline, that’s not what you are locked to.”

Reeves is the APC attorney in Rush County and gave an example from a case involving wind turbines in that county and how the baseline is good to have and then it can be tweaked as time goes forward. He said Rush County had setbacks in its amendment to the zoning ordinance concerning wind turbines. However, the proposal from the company included wind turbines much larger than had been anticipated in the amendment. Thus, the county put larger setbacks in place to meet the situation, Reeves said.

The company in question took the county to court over larger setbacks than the setbacks in the zoning ordinance, and the court of appeals upheld the county’s larger setbacks. After that, the supreme court denied a hearing on the case so those larger setbacks stand.

Again, Reeves warned about a wild west scenario.

“I do have concerns if it is just a wild west because I don’t know what happens and I don’t know how far we can push it,” Reeves said at that point in the meeting. “They can attempt to say it’s unregulated since it’s not in there. Personally, I think it’s a bad argument, but it’s not going to stop them from trying if they really want to do it.”

Thus, the commissioners adopted the amendment as a whole that was sent to them by the Area Plan Commission. Commissioners want to put more stringent and additional provisions in place to what they adopted Tuesday night. Reeves is going to draw up their amendments into legal language, and the commissioners are holding a special meeting at 10 a.m., Monday, April 26. At that time, they can consider those additions to the amendment to the zoning code.

This process started during the summer of 2020 with the Area Plan Commission hearing of a solar energy company approaching area farmers concerning land leases for property in Bath and Springfield townships. A committee of APC members, including Reeves and Davis, hammered out a basic amendment. Commissioners then put changes to that proposed amendment and sent it back to the APC. The APC further changed those changes and sent it back to the commissioners, which resulted in Tuesday night’s meeting.

Commissioners wanted to add to what was sent to them by the APC. However, to do that, the commissioners would have to totally reject what the APC sent to them and send it back to the APC with their proposed additions, which would start the lengthy process anew. All of these hearings have been public hearings which necessitate advertising and notification of the meetings prior to the meetings.

Commission President Tom Linkel said he personally would like to see one dozen modifications to what was approved Tuesday night. They include: larger setbacks from the solar energy farm to adjacent landowners, additional insurance such as pollution and cyber insurance, an annual adjustment to the requested insurances including liability that increases through the Consumer Price Index (CPI) with the APC looking at the insurances’ amounts every 10 years to see if they are adequate, a buyback option from the company to adjacent landowners, and others.

Another amendment Linkel suggested was to allow only a certain percentage of territory of a township or county to be used for solar energy farms in a given area.

Ones suggested from the audience included one making companies liable for giving training, supplying PPE, foam and other firefighting material to the local volunteer fire departments, which might have to fight fires in the solar fields.

Audience members thanked the commissioners for not putting time limits on public participation and allowing those who spoke to completely make their comments. Some audience members went to the microphone more than once and some of the comments had been prepared in advance and read to the commissioners. Commissioners usually meet at 10 a.m. on Tuesdays but changed the meeting to a night meeting so more of the public could attend.

After commissioners told Reeves what they wanted to add to what they were passing and acknowledging those they wanted to take from audience participation, Reeves said he also had a couple, and he wanted to tweak some of the legal language in what was adopted.

Commissioners then unanimously adopted several ordinances to create the baseline. Those ordinances were:

*creating an A-AES zoning designation. This means an Agriculture Alternate Energy System zoning designation. Reeves and commissioners said it was important to make companies ask for a zoning change to make solar farms possible. Zoning change requests must go before the Area Plan Commission and the county commissioners. The APC makes a recommendation to the commissioners, and then the commissioners can agree to the zoning change or reject it. All the meetings on a proposed zoning change are public meetings. The only zoning districts a solar energy farm could currently build in are the Industrial-1 and I-2 designations. Companies would need to receive a conditional use to have a solar energy farm in those designations, and the county’s current I-1 and I-2 areas are not conducive to the land requirements solar energy companies are looking for: flat land without trees.

*Commercial Intermediate Alternative System main draft: That is the base amendment to the zoning code, concerning provisions a solar energy company must meet. This is the basic amendment that has gone through the tennis-like process of going back and forth between the APC and commissioners to iron out.

*Residential Alternative Energy Systems. Another amendment regarding alternative energy to the zoning code.

*Definitions. That has not been changed since November 2020.

The amendments the commissioners may pass at Monday’s meeting will then have to go back to the APC for its approval. Commissioners would then have to hold another meeting to pass or reject the proposed additional amendments.