A representative from Clearway Energy Group warned the Linn County Commission against requiring a contribution in lieu of taxes as a requirement for issuing a conditional use permit for a solar utility installation. (Wix file photo)
By Charlene Sims, info@linncountyjournal.com
MOUND CITY – The Linn County Commission passed a resolution that stops Linn County from accepting conditional use permits (CUP) for solar utility installations at its meeting on Monday, March 18.
Following that motion Clearway Energy Group representative Barry Matchett made his already scheduled presentation, adding that it was not the presentation he had planned on.
Matchett told the commissioners, “That motion that passed before you went into executive session has kind of changed what I was going to talk about.”
He said he wanted to make it clear that Clearway has spent three meetings in a row talking about a contribution agreement.
Matchett said, “Contribution agreement. I think we want to be careful about conditioning that on a conditional use application. That’s something there is some legal precedence that puts both the applicant, it puts everybody at risk of a lawsuit down the road.”
“So tying the two together is something we are going to pull back from,” said Matchett. “So that you guys don’t get sued by us or by opponents.”
Matchett said that he just wanted to stipulate that, but within that conversation he wanted to note that Clearway’s representatives have heard the commission’s priorities. He added that he appreciated being able to talk publicly with commissioners many, many times about this.
Later in the meeting, Commissioner Danny McCullough asked Matchett to clarify what he had said about the CUP process being tied to an offer from the company.
Matchett said, “It can’t be conditioned, the CUP can’t be conditioned on a contribution agreement.”
“What do you exactly mean, that we can’t put in the CUP, what you guys are going to contribute?” asked McCullough.
“You can’t condition the approval of a CUP on a contribution agreement. You can’t condition the conditions within the CUP on a contribution agreement. The two need to be delinked,” said Matchett.
Commissioner Jim Johnson asked, “Would you explain to me how we could negotiate the CUP, I mean a PILOT, how do we negotiate?”
Matchett said, “I would defer to the county’s counsel on that. I am not in a place to opine on whether Kansas law deleverages both sides. But I think you can tell by the way I said that it feels like that from both sides. It is what it is.”
Matchett continued, “Honestly, this is the only state where I have seen this. There may be other states that are like this that I haven’t worked on a project.”
“You’re saying you can negotiate a PILOT in other states besides Kansas,” asked Johnson.
Matchet replied, “Well, first of all, it’s a PILOT instead of a contribution agreement, and I think that’s a very important delineation. So payment in lieu of taxes is its own little category of law. A contribution agreement is purely a donation from a business coming into a county.”
“Which we can’t negotiate?” asked Johnson.
“Which neither side can condition the other side upon, so it cuts both ways. But commissioner I appreciate your point though,” said Matchett.
County Clerk David Lamb told the commissioners, “We’ve been cautioned about that by our previous legal counsel and an outside counsel that we were working with on this too.”
“Has there ever been a lawsuit that anyone’s heard of, though?” asked McCullough.
County Attorney Burton Harding said he thought there had been and he had been made aware of a lawsuit from Butler County.
“I think the message is you can’t, you know, basically bribe. I’ll give you a bunch of money if you give me a CUP,” said Harding. “That’s what they are trying to avoid. They want to decouple that. The message is we don’t want to get into that situation.”
Matchett said that Clearway intended to keep on listening to members of the community to learn how if the company is able to come here, how it can be a good member of the community and work with a contribution agreement.
He pointed out that the second thing that the company representatives heard loud and clear is that it is important to members of the commission that, if Linn County were going to move ahead with the contribution agreement, that it be the best in the state.
“We can commit to doing that,” said Matchett.
Matchett said that he thought the ad hoc committee’s work, but he asked for clarification – if the commissioners were willing to give it to him – based on this resolution that was just passed by the commissioners.
He said that Clearway representatives believe that the ad hoc committee has done a good job. He pointed out that the ad hoc opponents and proponents have been at every single meeting in some combination and that he really appreciated that.
He said that he appreciated that the planning and zoning commission members have listened and considered all objections from the opponents and have tightened the perspective solar ordinance. He said that Clearway’s position was that it has improved solar farm regulations because it reflected the public’s feedback.
Matchett says that it is his hope that the committee does not stall out but continues to do its work and can get the proposed changes reviewed by an attorney so that the document can be redlined and then go to the planning commission.
Matchett explained the time line of the planning and zoning commission approving the document, the public hearings and the length of time before it is finalized.
Commissioner Danny McCullough interjected, “Well, from my understanding of listening to their meeting here last week they were going to try to give us all their findings. They’re going to try to bring us back advice on that following Monday after April 9, right?”
Matchett expressed concerns that it might take longer because has he understood solar opponent Mark Briggs still had a number of concerns to bring to the group.
He once again asked for clarification on the on the timeline for expectations to then be able to move ahead with the process in front of the commission.
Matchett explained to the commissioners that the impact of the resolution they had just approved to not accept CUP applications affects about 20 people at Clearway and a consulting company, so he was going back this afternoon and figure out how to deal with that.
“But you guys have never submitted anything, so how’s that affecting you guys anyway?” McCullough asked.
Matchett explained that the company has been preparing to submit a CUP application, and that is an extensive process.
“You (the applicant) have to do all the wetland delineation stuff – you have to,” Matchett said. “There’s a whole bunch of stuff that takes a lot of people’s work, and they’re going to be pushed back a quarter, two quarters, three quarters.
“That is something that is just – I’m not angry, I’m just letting you know that it is a situation that requires us to rejigger a whole bunch of peoples’ work, and all I’m seeking now is some understanding of when you think the process will be wrapped up.”
“I think I articulated pretty similar to what you are thinking,” he added. “I know it may be off the top of your head right now, but I’d appreciate any feedback you have on that.”
Commissioner Jim Johnson replied, “Myself, we don’t know yet; we’re still waiting on planning and zoning, right?”
“I mean it sounded like they had meeting on April 9, right?” asked McCullough.
Matchett said that, from what he understood, the meeting on Wednesday would probably not have a final redline because of information had had heard from the opponents.
Matchett questioned if that was the case, why wasn’t the planning board meeting on the next two Wednesdays, March 27 and April 3, to finalize the process.
“I don’t think it’s our place to be planning the meeting for planning and zoning do you?” asked Johnson.
“All I am seeking is guidance that planning and zoning continue to move ahead with this process, that the ad hoc committee continue to move ahead with the process,” Matchett responded. “That there isn’t a change in the commissioner’s opinion that the ad hoc committee should move ahead with a red line.
“That red line should then move through the regular process, which is to go to the planning and zoning minus the ad hoc members and to go through the legal process. Is that still where your heads are?”
”Yeah , I anticipate they are going to bring us the findings on April 15,” said McCullough.
Commission Jason Hightower the said, “OK, but then it’s going to have to go to a public hearing. Darin, can you give us a rundown on what that would look like, please?”
Planning and Zoning Director Darin Wilson said that a 20-day notice would have to be given for the public hearing. Wilson said he was not going to speak for the planning commission, but he knew that they said they wanted to get this wrapped up and move forward.
“It’s going to take quite a bit of work,” Wilson said. “I can’t set a timeframe to it, but even if they discuss it on the ninth and vote on something, you’re still looking at May for a public hearing.
“To get the information from the public hearing the next scheduled meeting would be probably May or June unless they call for a special meeting and a 10-day notice would have to be given on that.
“And once they make their final vote, we don’t have to wait a time period to bring it to the commissioners. We can bring it to the commissioners on the following Monday of when they make their decision on whatever. But then, like always, you guys can either hold it, table it, pass it, deny it, whatever you guys choose to do.”
Hightower said that he would like to see the commission push through this and try to get a solution and finality to this situation as soon as possible.