Regulating proposed solar energy farms comes closer to reality following a FC APC public hearing, maybe

By John Estridge

The process of approving a new section to the Franklin County Zoning Code to regulate solar energy farms is like watching a tennis match.

Going back and forth between the Franklin County Commissioners and the Franklin County Area Plan Commission, the ball, which in this case is the proposed additional section, has now been returned to the commissioners’ side of the court. If commissioners, in the next 45 days, further change the proposed new section, the document will go back to the APC for another public hearing and another chance to further change the proposed section.

Since the summer of 2020, commissioners and the APC members have been coming together in separate meetings and public hearings in order to work out a new section, devoted to solar energy farms and wind energy, into the county’s zoning code. Adding a new section to the zoning code is by definition amending the zoning code.

Wednesday night, March 10, the APC met for almost three and a half hours including a small break from the public hearing when the Franklin County Board of Zoning Appeals heard an application for a variance. Also, the APC had a short interlude for a resident to explain a problem he is having with a neighbor before the night’s public hearing got underway.

When the APC members went back to their marathon session after the BZA variance application hearing, they hammered out about a half dozen amendments to the proposed section to the county’s zoning code.

At a January Franklin County Commissioners’ meeting, Franklin County Attorney Grant Reeves handed out a press release concerning the actions of the commissioners up to that date in regard to work on the proposed section to the zoning code. He released it at that time because he said the entire process had resulted in misconceptions by many FC residents.

In order to regulate and for county officials and the public to have a say in proposed solar energy farms, the commissioners created a zoning designation Agriculture-Alternative Energy System (A-AES). Thus, solar energy farms could be sited in only three zoning designations: Industrial-1 (I-1) Industrial-2 (I-2) or the newly formed A-AES.

Any application for a solar energy farm in any zoning designations outside I-1 or I-2 would require the proposed company to come before the APC members and the commissioners to rezone the property or properties in question to the A-AES zoning designation. If the commissioners do not approve the zoning change, the proposed solar energy farm cannot go into existence on the proposed property.

Even if a company wants to site the solar energy farms in areas of I-1 or I-2 zoning designations, a public hearing before the APC would still have to be heard as the zoning code requires a conditional use in those two zoning designations.

“These (conditional use) approvals are not automatic, must meet the conditions in the ordinance at a minimum, and approval is still discretionary,” Reeves said in his January press release. “The commissioners would not have to be involved in this process.”

APC members started the writing of a new section to the zoning code process in September 2020 and subsequently sent the proposed section to the commissioners. The commissioners, in turn, sent amendments to the proposed section back to the APC. A public hearing at the February 10 APC meeting was scheduled. It was postponed due to inclement weather. That led to the March 10 public hearing.

In the March 10 public hearing, the APC members passed the following amendments to the proposed section to the county’s zoning code:

This amendment would make a company use Ground Penetrating Radar (GPR) to find utilities, field tiles and other potential unknown structures prior to construction. Also, any construction near cemeteries cannot be done within 100 feet of the cemeteries.

Franklin County Surveyor Rob Seig, who is an APC member by his elected office, proposed the amendment. Earlier in the public hearing, FC farmer Roger Bommer talked to the APC members via Zoom and said a solar energy farm project is slated to go in place in Springfield Township near the Big Cedar Cemetery. Bommer owns property adjacent to the property or properties in question. He is concerned field tiles could be demolished or heavily damaged by the solar energy farm construction process. It may take some time for the negative effects of that damage to be found. He said if something like that occurs, he will no longer own valuable and productive farmland, but would own a lake.

Seig’s amendment was in answer to Bommer’s stated problem. Officials have discussed that possible outcome to field tiles at earlier meetings on the subject.

Also, Seig mentioned no construction could take place within 100 feet of a cemetery. He said that is state law but should be stated in the county’s zoning code regarding solar energy farms, and the other APC members agreed.

Approval process includes a class 3 permit, by hearing, to create the zone.

This was suggested by APC member Ed Derickson and was unanimously passed. APC President Ruthie Mannix said any change in zoning to A-AES guarantees a public hearing. And if the proposed site is in a I-1 or I-2 zoning designation, the company would have to seek a conditional use, which also requires a public hearing. Derickson said he wanted the language added so it makes it clear any action along these lines requires a public hearing.

Liability insurance amounts were increased for companies wanting to construct and operate a solar energy farm project.

Insurance requirements for a company wanting to put in and run a solar energy farm would have to provide proof of insurance of a minimum $10 million per incident and an aggregate to be determined by a board of three insurance agents through a liability assessment study. Also, non-participating landowners will be held harmless by agreement with the proposed applicant. It was unanimously approved.

The insurance amendment was suggested by FC resident Traci Robinson. She and her mother, Tina Jackson, a Union County resident, have been vocal in their opposition to the proposed solar energy farm projects in the area including Preble County, Ohio and Franklin County.

Requirement to provide ground covering, which would be conducive to bees and other pollinators.

Natural vegetative ground cover shall be maintained under and around solar arrays. Only non-invasive species should be used and native species are recommended in the interest of protecting pollinator seed nexus consisting of native meadow grasses and pollinator wildflower and clover species in consultation with a USDA farm field biologist or local Soil and Water Conservation District.

Trisha Agnew, a Bath Township resident, suggested the one about ground cover conducive to pollinators, and Mannix made the motion, which was unanimously approved.

Seig also wanted all the amendments approved Wednesday night that are not solely for solar energy to be placed in the wind energy part of the overall section.

That was also passed unanimously.

APC member Connie Rosenberger made a motion for the only amendment request not to be passed. Her motion died for a lack of a second. She wanted Prime Agriculture (A-1) Zoning designation to not be a zoning designation, which could be rezoned to A-AES.

APC Attorney Tammy Davis and Mannix explained to Rosenberger it would be illegal to put something like that in the zoning code. Someone has the right to request a rezone of any property under any current zoning designation into any other zoning designation that property owner requests. It is then up to the APC members to hear that request and give a favorable, unfavorable or no recommendation to the county commissioners. And then the county commissioners have the final decision. All the steps in the rezoning process are done in public hearings.

After there were no other amendment requests from APC members, the APC formally voted on the proposed section including Wednesday night’s amendments.

To be legally correct, the APC disapproved what the commissioners sent them and then approved their amendments to what was sent them.

Earlier in the meeting, Davis and Reeves discussed the next steps in the long and very technical process.

If the commissioners approve all the changes the APC members made at the Wednesday, March 10, public hearing, then the proposed section would become part of the county’s zoning code. If the commissioners reject the APC’s amendments passed at the March 10 public hearing, then the overall proposed section sent to the APC for the Wednesday night hearing would be the new overall section added to the county zoning code.

However, if the commissioners make more changes to the proposed section, then the proposed section would go back to the APC for the process to continue.