Solar applicants question need for road use agreement

 

[June 16, 2020] 

At the Logan County Board Workshop on Thursday, June 11, one focus of discussion was the Mulligan Solar Project.

Board members present were Dave Blankenship, Emily Davenport, Janet Estill, Bob Farmer, David Hepler, Steve Jenness, Chuck Ruben, Bob Sanders, Scott Schaffenacker, Jim Wessbecher and Annette Welch. Cameron Halpin was absent.

On Tuesday, June 16, Planning and Zoning Committee Chairman David Hepler will bring forward a motion for a conditional use permit for the Mulligan Solar Project.

Project Manager Erin Baker of Apex handed out materials to the board members. Baker said, Mulligan Solar’s application is for an energy system that would generate up to 70 megawatts from parcels set on 874 acres.

The project would interconnect to the existing Ameren Fogarty substation, located northeast of the town of Broadwell. Interconnection facilities or the “Project Substation” will be located on an adjacent parcel.

The Project is roughly bounded by 1300th Street to the north, Salt Creek to the east, 1100th street to the south, and 800th Avenue to the west within the boundaries of Broadwell Township.

Baker said though participants have signed solar leases for 874 aces, not all the area will be covered by panels. Some of the acreage is for setbacks for roads, houses and other infrastructure.

Right now, Apex and Mulligan Solar are completing interconnection studies and executing an interconnection agreement with Ameren. Early next year, Baker said, the interconnection agreement would be executed. Then they will start applying for building permits with hopes to start construction in spring or fall 2021. Baker said they hope to operational by the end of next year.

Project attorney Kyle Barry attended prior meetings on Wednesday, June 3 and Thursday, June 4 with the Regional Planning Commission, who voted 7-0, and the Zoning Board of Appeals, who voted 5-1, to recommend approval of the conditional use permit.

The conditional use request has 21 conditions that need to be met for the project. Barry said almost 90 percent of the conditions are in good shape, but two took the company by surprise, which relate to road plans and road use agreements.

The specific conditions Barry is referring to include:

Condition 16:  Submission of signed and recorded copies of all Road Use Agreements, if applicable.

Condition 17:  Receipt of township road commissioner and county engineer approval of roadway plans for all affected roadways, along with appropriate easements from property owners where the roadway improvements will occur outside of the existing public right-of-way, if applicable.

However, the solar ordinance adopted by the board does not include a road use agreement requirement, which Barry said is typical.

Unlike wind projects, Barry said solar projects do not require big cranes or heavy equipment to bring in loads. With a couple exceptions, Barry said, equipment can be supplied to the site using legal loads, so impacts on the road would be the same as from a grain truck.

According to state statutes, Barry said conditions must be reasonably necessary to meet the standards. Barry said the solar ordinance does not create any standards for road use agreements. Barry also looked at section 10.3 (on conditional use) of the zoning ordinance, and said it does not include any references to road use agreement or roads.

The conditional use section does include indirect references to traffic and ingress, but Barry said these references are about the site and traffic in the neighborhood.

That raised some concerns, so Barry spoke to Logan County State’s Attorney Brad Hauge about it. Barry said, as written the provisions in those two conditions create uncertainty about road use agreements, especially since they say, “if applicable.” Barry and the project developers are not sure what that means or what road use agreement will be required.

It does not appear the project will impact any county roads, so Barry said it is not clear why conditions relating to the road would be imposed by the county. Traffic will come directly off the interstate and just impact a few miles of township roads.

After the feedback he received from Hauge, Barry said he is proposing some amended language to provide more certainty. Barry said it would also involve a study of the roads by a third-party engineer to determine whether a road use agreement would be necessary.

If the third-party engineer determines a road use agreement would be necessary after doing a baseline survey, Barry said, the applicant would have no problem entering into a road use agreement.

There was another area Barry wanted to propose a language change. He wants to amend the time for activity on the project, limiting it to 6 a.m. to 6 p.m. instead of sunrise to sunset. Barry said that would take away any uncertainty about whether it is actually light or dark.

In the event of extenuating circumstances, the applicants could make a written request to the zoning officer. The zoning officer could then use his discretion in deciding whether some nighttime activities could take place.

Hauge asked Logan County Zoning Officer Will D’Andrea to explain why the original conditions were put in place and his thought on these amendments.

D’Andrea said Barry is right, that there is no specific language about a road use agreement being required as part of the Solar Farm Ordinance. However, D’Andrea said, part of the general approval criteria for conditional use provides for roads and utilities.

At this point, D’Andrea said, there has not been much discussion about road impacts with the Broadwell Township Road Commissioner. Therefore, D’Andrea said the conditions will require the township road commissioner’s discretion as to whether a road use agreement is required.

D’Andrea is not sure what the impact on the roads might be during the construction. Though, those bringing in loads would not be using a county road, D’Andrea said, most of the roads impacted by the wind farms were not county roads either.

Without a road use agreement, D’Andrea said, if there is damage there is a question of who is responsible for maintaining and fixing the roads. Is it the taxpayer or the township?

Hauge asked whether the clause ‘if applicable’ in condition 17 was based on a lack of information presented at the ZBA hearing.

D’Andrea said the township road commissioner had not been contacted yet about the impacts or the level of construction activity. Therefore, D’Andrea said the township commissioner is a bit concerned.

As far as times, D’Andrea said, it is fine to further limit construction from 6 a.m. to 6 p.m.

In the future, Vice chairman Schaffenacker asked that when the applicants send out certified letters, one be sent to the township office.

D’Andrea said Mr. Barry did send a letter to the township office.

Hauge agrees with having extra protection for the township.

Some of the board members felt it would be prudent to have provisions in place for the roads.

Sanders agreed there should be protection whether it is a road use agreement or something similar. He said people do not intend to damage the road, but it happens.

Ruben said he would think they [the developers] would want to get a hold of the township commissioner and get something in place because of situations that we have seen [with other roads]. The township commission can suddenly decide to shut a road down and not have to answer to anybody. Ruben said having these agreements is in their [the builders] best interests.

Wessbecher wants the protections in place since drivers do not always follow the exact route.

Though we do not know as much about solar, Welch said her concern is about something happening and not having any road use agreement. She would rather have some sort of agreement even if they determine no repairs are expected.

Hepler said he would make amendments Tuesday for the recommended time changes and for the road use agreement after consulting a third party.

Chairman Davenport asked whether the company requires a third-party consultation.

Hepler said it sounds like they could mandate it.

Though a third-party engineer is consulted for review, D’Andrea said they should not be the ones to decide on road use agreements necessary. That should be the township road commissioner.

The board will vote on the motion at their Regular Board meeting tonight, Tuesday, June 16 at 6 p.m on the second floor of the Orr Building.

[Angela Reiners]