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  • Writer's pictureCharlene Sims, Journal staff

Commission postpones adoption of new zoning regulations

Updated: Jul 21, 2023

A 2,000-acre solar farm near the La Cygne power plant is in the works if developers and the county can agree on proposed zoning regulations. The county currently has a moratorium on commercial solar development pending adoption of the proposed regulations. (Wix file photo)

By Charlene Sims, Journal staff

MOUND CITY – The Linn County Commission decided to postpone any decisions on finalizing an update to county zoning regulations at its meeting on Monday, May 15. James Kaup, a Topeka attorney and zoning consultant who has been working with the county planning and zoning commission was unable to the meeting because of health problems.

If Kaup is unable to attend May 22 meeting in person, the commissioners hope to have a Zoom meeting set up with him.

However, even without Kaup’s presence, several people representing different zoning issues did address the commission at the meeting, including those interest in developing a commercial solar operation.

Josh Framel, senior manager of development with Clearway Energy Group, said that there were three issues that he was concerned might affect a solar farm he was working on in the northeastern part of Linn County by the La Cygne Generating Station owned by Evergy.

The first one was the regulation that only 50% of prime farm ground on a given piece of land could be used for a commercial solar project. The land his company is working with, which is now owned by metro-area developer Mike Christy, is land originally mined for coal to be used at the power plant.

Framel said Christy has remediated the land and is using it as farm ground. He said he is concerned that the area where they are looking at putting in a 2,000-acre solar farm might be affected by this regulation.

Framel said that he believed that this was like a “double cap” because the regulations already say that solar farms are limited to 4,000 acres of land in Linn County.

Planning board member Mike White said he thought this was to protect prime farm ground. White explained that the 4,000-acre figure came from calculating how much land in the county was not wildlife area, cities and other areas that were not available for solar which was about 35,000 acres. He said the planning board took 1% of that and a little more to allow for solar power.

Framel’s second concern was the regulation that states that a copy of a power purchase agreement (PPA) be required with the application for getting a conditional use permit for a solar farm. He said that often companies do not want to sign a PPA until a permit is issued.

County Counselor Gary Thompson said he thought that the regulation meant that if a PPA existed at the time of application it needed included.

The third issue, Framel brought up was the regulation that requires a 150-foot setback from the middle of the road and property lines. He said that this would affect the solar development he was working on with Christy as it would cut back the size.

Planning commission member Dave Berglund said that the planning commission was trying to follow the county’s comprehensive plan and preserve the beauty of the county from the road and protect nearby properties. He said it would allow an area if the road was widened and also for a shrubbery buffer.

In a phone interview after the meeting, Framel said the regulations might break the deal with the solar farm on Christy’s land on the Kansas side of the state line. His company had hoped to put in a large 650 megawatt development using Christy’s land in Kansas and Missouri. He said this might make them decide to just use the Missouri land.

David Levy, an attorney representing EDF Renewables said that he had many of the same concerns as Framel.

Levy told the commissioners that the 4,000 acres limit was unfair to landowners who wanted to lease their land to solar projects. He said it was also unfair to companies. He thought the cap should be removed or changed to 8,000 or 10,000 acres. He said that one large project like Framel’s could keep other landowners of companies from building a solar farm.

Levy said that he appreciated the clarification of the PPA being needed to apply for a permit.

Levy told the commissioners that he thought the 150-foot setback was reasonable, but that it might be better if it was 100 feet. He said that if you took into consideration the road set back with some kind of shrubbery buffer and then a road inside that 100 feet should be sufficient. He said that the extra 50 feet could be an inefficient use of land and it would become a “no man’s land” that required upkeep.

Even though eight members of the nine-member planning and zoning committee were at the commission meeting, the consensus of the members was that it would be better for Kaup to address questions and issues brought up by the commissioners and solar company representatives.

Still at issue were the regulations on wind turbines in Linn County. When the planning commission voted on separate sections of the zoning regulations, the wind turbine section was passed on a 5-3 vote.

Five members of the planning commission wanted to put a complete prohibition on commercial wind power in the county while three members felt that – on the legal advice of Kaup – strict regulations would be easier for the county to defend if taken to court. Kaup, as an attorney, had recommended that strict regulations might hold up better in court than a prohibition.

Commission Chair Danny McCullough asked if the county was opening itself up to problems by putting a complete ban on wind turbines.

Commissioner Jason Hightower said that at the Kansas County Commissioners meeting, Jay Hall Deputy Director of General Counsel for the Kansas Association of Counties (KAC) said that the county would be opening itself up to having its regulations challenged by prohibiting wind turbines.

McCullough asked the planning board members in the audience if this had been discussed in the zoning regulation meetings.

Planning board member Dave Berglund said it had been discussed. He said that he had respect for landowners, investors, farmers and thought that people should be able to do what they want to with their property as long as they meet the county’s stringent restrictions and don’t interfere with the landowner next door.

He said that, as a landowner, he did not think that he owned the view of the whole county.

“I own the view of my property as long as it is away from your property and not destroying the appearance of your property,” said Berglund. “As long as these things meet restrictions, landowners do have rights.”

County Counselor Gary Thompson said that anytime you restrict a property owner’s rights there is a possibility of litigation. However, a complete ban is a much greater restriction than limitations.

“Therefore, I agree with Mr. Kaup that you have a greater chance of getting involved with litigation if you do a total ban,” said Thompson.

Centerville landowner David Fisher pointed out that 12 counties in the Flint Hills area have been approved by the state to put bans on wind turbines. Five other counties in Kansas have put on complete bans. One of these Wabaunsee County, has been challenged and it was determined by the Kansas Supreme Court that it is permissible to enact a ban.

Hightower told Fisher that the county still had exposure to litigation even after that case, and it was going to get worse as they start filling up the other places where they have put wind.

“We’ve always felt that it has been tested in the Kansas Supreme Court, it passed, there hasn’t been any challenges since then,” said Fisher.

In answer to a question by McCullough, Fisher said that the amount of taxes received by a county from a wind farm is not significant.

Planning commission member Mike White told the commissioners that Kaup was the attorney who represented Wabaunsee County in the lawsuit. White said that he thought that there was a little bit of Kaup talking out of both sides of his mouth on this thing.

“You know he was willing to challenge them in court and did so successfully,” said White.

White reminded the commissioners that 66% of the responders to the comprehensive plan surveys viewed wind turbines negatively.

Planning and Zoning Director updated the commissioners on other changes in the new zoning regulations. They are:

• New districts have been added to the regulations. They districts now are agricultural, residential, residential lake community (this has been added because of the densely populated areas), countryside which replaces agricultural residential, commercial, manufactured home, industrial, light industrial, public use, mixed use district for unincorporated areas like Centerville that have a mixture of commercial and residential.

• Accessory dwelling units – This allows landowner to have two residential dwelling units on a property for family members or farm help. It cuts down on the lot splits.

• Change in Article 21 in the building permit section. Certificate of completions will be given when an inspection is done to verify that what is built is what is on the building permit.

• Wind regulations – domestic wind turbines are allowed but commercial wind turbines are prohibited

* Solar regulations- Regulations are written for domestic use and commercial use. The new regulations put a cap of 4,000 acres countywide on commercial solar farms

• Restrictions on year-round residency in travel trailers. If a lake community already has a designated area assigned for travel trailers residency, people may live in travel trailers. If someone is living in another area in the county, they are grandfathered in until they move it off. After that a new one cannot be placed there. People can live in RVs while they are building a house but they have to register it with the county zoning administrator.

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