County considers adding 'sunset clause' to conditional use zoning

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[September 03, 2015]  LINCOLN - On Wednesday, September 2, 2015, Logan County Board Planning and Zoning Committee met to discuss the sunset clause for conditional use and get an update on the subdivision ordinance rewrite.

The new business focused on the 'sunset clause' [which is part of a law or contract that states when it will end or the conditions under which it will end] and how it will affect conditional uses.

Logan County Zoning Officer, Will D'Andrea explained that the issue came up as he has been going through some applications for conditional uses and stated a five-year sunset clause would be associated with Relight. He said that there is currently no sunset clause [written into the Logan County conditional use ordinance], but wants the committee to consider putting it into their ordinances. D'Andrea handed out packets showing examples from other counties and the language they have for sunset clauses, and said some even deal with revocation of permits.
Committee chairman, Pat O'Neill, asked if the board would have a say in how these clauses work. D'Andrea replied that for new applications if the applicants receive approval but do not do anything in that five-year period, the approval would expire and they would have to apply under the current criteria.

Committeeman Kevin Bateman said he and D'Andrea have discussed keeping it as simple as possible. Bateman inquired whether they could legally put in the ordinance that it would revert back to the previous zone if applicants have done nothing in five years. D'Andrea said he was unsure. For clarification, Bateman then asked if they put a five year sunset clause on an area zoned for something such mining conditional use, whether it would revert back or whether the same people would have to reapply for their conditional use. D'Andrea asserted that the applicants would have to reapply and it would be the same with Relight, who would also need re-approval if they have not done anything after five years.

Bateman noted that in discussions with D'Andrea, the issue was not that the project had to be done, but that there had to be some movement forward, citing the example of the ethanol plant that just sat there with nothing being done. Bateman said he wants to keep land from sitting there with no potential use to it. He feels that there should be some kind of plan within five years and D'Andrea agreed that there should be some kind of concept or plan within that time period.

Committeeman Jan Schumacher asked whether this ordinance would apply to entities that have permits now and D'Andrea noted that it would affect just future applicants.

O'Neill asked whether they should extend the policy to other permits, but Board Chairman David Hepler said it is more of a planning tool for other properties.

Doug Muck, who has a rezoning application for mining pending, mentioned AOM spending a long time on a project that because of a change in the power rates made the project temporarily economically infeasible. Rather than "sunsetting" a project that a group is still working on, Muck suggested looking at the circumstances. He believes a uniform sunset clause would not be practical and finds that looking at each one on a case-by-case basis is better. Bateman concurred that is the reason he likes the specifications in Peoria County's ordinance, which says there has to be a reason to take a permit away.

D'Andrea suggested structuring the language to allow requests for extensions, taking into consideration changes in technology or changes in regulations. He feels that it would be advantageous to have some kind of criteria for granting extensions.

Bateman said he likes the simple language in Peoria and Ogle Counties' standards, stipulating a certain number of years for a permit. D'Andrea said that if the committee looks at the packets of the seven counties, they can get a "flavor" of what they are looking at and customize and choose which "flavor" to adopt.

When the floor was opened up for public comments, Glenda Downing's comments spurred much further discussion on the topics of conditional use criteria. Downing said she is glad the committee is considering putting in the sunset clause because she is "very uncomfortable with the conditional use ordinance we have now for the M3 extraction" and feels it is "very vague." She explained that Livingston County has a four page detailed ordinance for mining extraction, and says she does not see any "specific uses" in Logan County's zoning ordinance. Downing wondered if the sunset clause applied to the mining extraction and Bateman stated that he did not believe it would apply since the area is zoned with a conditional use permit. D'Andrea explained that since Muck has not yet applied for a conditional use of the actual use, the clause could possibly affect future conditions. Downing expressed her concern about the lack of specificity in the ordinance noting other counties have specifics for conditional uses for these permits.

Bateman said he does not like specifics because he wants look at each and every application and look at the specifics for that application, that site, those neighbors, those conditions, and does not want a set of rules when each place may be different. As Bateman further explained, he wants to look at each thing separately and make a decision based on those merits.

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Downing inquired whether there had been an application made for conditional use for the mining extraction and was told that there had not, though there had been discussions. Downing wanted to make sure "specifics" were listed and pointed out that she had read the Livingston County which even dictates how deep a mine can be.

Bateman said that when considering the mining issue, he would want look at all the land around it and the conditions based on the homes, the geography, and everything else pertaining to it. Bateman then said if Muck wanted to mine in the center of land he owns, and it does not affect anything, he does not feel it is a problem. Bateman reiterated that he does not want to be tied down to specifics.

Downing stated that while she is not against the mine, she just wants to make sure that there are controls, and that Logan County is part of that.

Rohlfs reported that the committee had earlier received some conditional use comparisons from counties such as Whiteside County, which he felt had a good list of criteria to consider, such as special setbacks and buffers, fences and/or walls, lighting, sewer and water (both for operation and for neighbors), paving and parking areas, regulation of time for certain activities, regulation of noise, regulation of signs, and conditions for each individual case. Rohlfs asserted that if the committee added something like this list to the five criteria they already have, they could see what they need to satisfy for each one. Bateman agreed that it could be helpful to read each one, skipping over some and adding others, it would satisfy the specifics Downing is asking for.

Muck pointed out that when it comes to conditional use, the more population density that exists, that more control is required over land use; noting that in cities like Chicago with more complex projects, light and air have to be more controlled. He acknowledged that it is good to have standards, but said if the committee wants to maintain flexibility, the zoning office might want to use terms such as "may include the following." Muck said that in larger cities, the zoning board may consist of engineers and architects who study certain areas and bring the recommendations forward, and noted that Logan County does not have such people on the board, but usually has to hire them. Muck pointed out the need to think all conditions through for each instance and suggested sending out solicitations to business people and other entities involved in these types of activities for ideas about what they think is right. He noted that some clauses were written for major metropolitan areas like Chicago and do not apply to areas like Lincoln.

Schumacher mentioned that the reason the committee went to conditional use was to help set conditions. Downing said she wished she had known that before and said we need to think about the uses when it comes to any company. In wrapping the discussion up, D'Andrea suggested that they look at some of the criteria and perhaps add them into the sunset clause.

D'Andrea then provided the update on the subdivision ordinances rewrite, noting that he has regrouped, reorganized, and reconstructed areas of the ordinance, especially the sections that had some outstanding questions associated with them. Those sections were now compiled and sent them off to Jan Schumacher and Kevin Bateman for their review and comments. Bateman said he hopes to vote on it next month.

D'Andrea also plans to work on certification documents, see what is required in the preliminary plat, checklists, and figure out how to tie in road sections.

In other business, D'Andrea reported that he is continuing to work on the Enterprise Zone application that will eventually go to the city and then to the county for review and approval. He is drawing boundaries, looking through legal descriptions, and reviewing a draft ordinance with city of Lincoln administrator, Clay Johnson.

The next Planning and Zoning meeting will be October 7th at 6:30 p.m.

[Angela Reiners]

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