To:  Campbell County Commissioners

 

From:  David L Ganje, attorney   //   605 385 0330

davidganje@ganjelaw.com

 

Re: Proposed Campbell County Temporary Zoning ORDINANCE #2019-1  (called in this memo the “proposed ordinance”) ((reference also made to the first memo I sent to the Commissioners, which is on file with Campbell County Auditor and is dated August 15th, 2018))

1. PROPOSED ORDINANCE CONTAINS INAPPROPRIATE SUBJECTS. As a whole, the proposed ordinance was not reviewed by those in charge. Extensive subjects are included in the temporary ordinance which are not a part of a temporary, emergency ordinance under South Dakota law. The ordinance covers several subjects immaterial to wind energy development. Under state law, temporary ordinances are not to be comprehensive. A temporary zoning ordinance “regulates uses and related matters as constitutes the emergency.”[i] The immediate issue before the commission is the proposed phase 2 of a wind energy project. Yet the proposed ordinance addresses “Bed and Breakfast Establishments,” “Concentrated Animal Feeding Operations,” “Asphalt Mixing Plants,” and other non-wind farm matters. The proposed ordinance contains improper subjects “not necessary to protect the public health, safety, and public welfare.” This is particularly true because Campbell County does not yet have, and has not yet publicly considered or adopted, a written comprehensive zoning plan for the county. It is unusual for a law-drafter to put in more language than is necessary when writing a law. The proposed ordinance leaves me puzzled and concerned.  That which “constitutes an emergency” is not 99 pages of stuff dealing with bed and breakfasts, CAFOs, asphalt plants and the like.
2. PROPOSED ORDINANCE IS A FULLY INTEGRATED ZONING ORDINANCE. The 99 page proposed ordinance cannot be legally adopted. It is a fully integrated planning and zoning ordinance — it even presents itself as such. It is not an emergency, temporary ordinance.  By way of illustration, the following language is found in the proposed ordinance, “WHEREAS, the Planning Commission and Board of County Commissioners has given due public notice to a hearing relating to zoning districts, regulations, and restrictions, and has held such public hearings.” Not only is this false—no such public hearings will be held before February 7th, 2019—these procedures are not for temporary zoning ordinances, they are for a fully integrated zoning ordinances, which are comprehensive. The word ‘temporary’ only shows up once in the whole ordinance — in its title. Just as problematic, the proposed ordinance asserts a comprehensive plan has been adopted by the county. This has not occurred. The county has not adopted a comprehensive plan. These statements and assertions are false. A fully integrated zoning ordinance cannot be enacted under the state’s temporary zoning statute.
3. THE COMMISSION CANNOT ADOPT THE PROPOSED ORDINANCE. Because the proposed ordinance contains subjects unrelated to an emergency and holds itself out to be a fully integrated zoning ordinance, it is not a “temporary zoning ordinance.” The county did not follow lawful procedures for ordinance adoption. SDLC Chapter 11-2 requires two separate and publicly noticed meetings for a county to enact a general zoning ordinance that is not temporary.  First, after public notice, “[t]he planning commission shall hold at least one public hearing on the … zoning ordinance [and] … submit its recommendation to the board.”[ii] Second, “[a]fter receiving the recommendation of the planning commission[,] the board shall hold at least one public hearing on the … zoning ordinance[.]”[iii] These two provisions require at a minimum two public meetings for zoning ordinance adoption.  Without correct content and procedures an ordinance is invalid, and it may be challenged.[iv]
4. ONLY THE PHASE 2 PROJECT DEVELOPER WAS CONSULTED ON PROPOSED ORDINANCE. It is inappropriate that the commissioners held no public meetings or public working meetings with residents on the proposed ordinance yet consulted with a project developer (sometimes called an operator or facility owner). On January 18th, a representative of the county, its zoning expert, told me the Campbell County Commissioners sought the advice of c­­ounty residents, the county state’s attorney, and the developer for the phase 2 wind farm project on the ordinance. My clients are not aware of any county resident that was approached by the commissioners. I know I was not approached by the commissioners, even though I submitted for my clients an extensive memo that addressed the ordinance last August. I am concerned about a conflict of interest for commissioners should a wind farm developer later seek a permit from the same county officials, some of whom may have worked with the developer in the writing of the very same proposed ordinance.
5. FAILURE IN ORDINANCE WRITING PROCESS — NO PUBLIC ADVICE. On the subject of a new wind ordinance, in the August memo referenced above, I asked the commission not to do everything at the last minute: “Campbell County in July outsourced to a consulting agency the preparation of a wind farm zoning ordinance. I understand the county wishes to adopt an emergency and temporary ordinance. While commissioners will be the ones to formally adopt any ordinance after normal county public notice procedures, it is respectfully submitted that the process would be well served by requiring that the consultants themselves seek public input from landowners and residents at the early drafting stage, rather than wait until final ordinance readings.” In this memo, I also asked the commission to make efforts to educate the public early in the process: “I respectfully suggest the commission regard in a comprehensive manner, and help the public understand, any proposed ordinance as well as related land use issues …. Uncertainty… often leads to controversy.” The recent 99 page proposed ordinance was just sprung on the public. Why weren’t there any commission work sessions open to the public for a committee or the commission to discuss the ordinance terms? Why didn’t the county’s hired expert hold any public listening sessions? In August of 2018, I invited the commissioners to contact me. Neither I nor my clients heard from them. Neither I nor my clients heard from any special committee members the commissioners appointed either. Finally, on January 16th, 2019, the commission issued a 99 page proposed ordinance and—at the same time—set one public hearing for it. Interested residents and landowners experienced radio silence concerning the language of a proposed ordinance from July 2018 until the proposed ordinance was filed and presented to the public for the first time on January 16th, 2019. While the commission may argue it is acceptable to hold only one public meeting at the end of a serious lawmaking process, I observe here a disregard by the county for any meaningful participation in the lawmaking process by interested county residents.
6. PROPOSED ORDINANCE IS 99 PAGES. We have a handsome number of legal issues in the proposed ordinance. The commission should nevertheless please understand I was not hired to write an ordinance. Please further understand it is not my charge to either rewrite the proposed ordinance or to critique the whole 99 pages. Therefore, I will, wherever possible, only address the current emergency zoning issue at hand, which means the proposed ordinance’s language and terms related to wind energy. In addressing the various legal issues the commission should please recall that an emergency and temporary ordinance should “protect the public health, safety, and public welfare.”
7. SETBACK PROVISIONS IN PROPOSED ORDINANCE ARE INADEQUATE. We start with paragraph 5.24.03.2. of the proposed ordinance, entitled “setbacks.” The proposed language provides for a greater setback from a town than it does from a rural residence. That is unsupportable – a home is the same wherever a home is.[v] Further, a relevant portion of the proposed ordinance states, “Distance from existing off-site residences, shall be at least one thousand (3,960) feet.” The numbers (3,960) do not reflect the stated distance (one thousand feet). The preceding quoted language is vague, void, and not enforceable. Equally as important, the suggested setback distances in the proposed ordinance are inadequate. I submit the correct distance from off-site residences in the proposed ordinance should be “one and a half (1 ½) miles.” A distance of a mile or more is found in South Dakota[vi] and in other jurisdictions[vii]. “If there is a consensus among independent authorities, it is for more distant setbacks, measured in miles. The same pattern is shown in jurisdictions that have taken the time to research the topic and reach their own independent conclusions.”[viii] The proposed ordinance only protects “existing” off-site residences and measures this setback from a “primary building.” The word “existing” causes ambiguity in the proposed ordinance (i.e., how do we know if a residence is “existing,” who determines if a residence is “existing,” etc.?) It also prejudices future non-commercial construction and development of rural private property. What if my clients, or any private citizen, wants to construct a residence on a property after the ordinance is adopted? Future construction is not protected by the current ordinance terms.
   Sub-paragraph 5.24.03.2.b. should read: “Distance from off-site residences, business, churches, and buildings or structures, shall be at least one and one-half (1 ½) miles. Distance to be measured from the wall line of the neighboring principal buildings to the base of the WES turbine.”

8. PROPOSED ORDINANCE DOES NOT PROTECT ROADS. County road haul agreements are contracts between the county and a developer. These standard agreements REQUIRE permitted wind farm developers or those completing other county permitted activities to restore public roads back to their original condition.[ix] Written road haul agreements are useful and are quite common throughout the state. The boilerplate (one might call it form language) Campbell County language in the proposed ordinance DOES NOT require a road haul agreement.[x] This Campbell County language was unsuccessfully used a few years ago in another South Dakota county; in 2016, Codington County adopted identical ordinance language.[xi] But in 2018, Codington County experienced road problems and amended its ordinance.[xii] Road damage needed to be addressed in the ordinance. The template language did not protect the county and its residents from road damage, which was allegedly caused by wind farm development.[xiii] The exact language Campbell County wants to adopt failed to protect Codington County roads because it did not require a road haul agreement. Why would Campbell County adopt the same “cut and paste” language without considering its history? Why the county take did six months to write and pay others to write an ordinance whose form language all but guarantees problems from the get-go? The Campbell County language is a cut and paste job from other ordinances. The danger of “cutting and pasting” from other old ordinances is one of the risks I mentioned in the August memo. That advice was ignored by Campbell County ordinance drafters.
   The following ordinance language is reasonable: Along with a written and county approved county road haul agreement, it is required, at the time of permitting a project, that a project applicant must prove financial assurance is in place to promptly repair damaged county roads. 

9. NO REQUIREMENT FOR SITE PLAN AND ENGINEERING DRAWINGS. The proposed ordinance does not have a requirement for a developer to submit a site plan and engineering drawings when the developer files a conditional use permit application. The only requirement is to submit a site plan and engineering drawings “for the feeder lines before commencing construction.” Under the proposed ordinance, the public has no information on the technical terms and nature of a proposed new project even though the county could still “approve” such a project.
   The following is missing in the proposed ordinance: a conditional use permit application for a project shall include a completed site plan and related engineering drawings.

12. SERIOUS DECOMMISSIONING PROBLEMS IN PROPOSED ORDINANCE. Under the proposed ordinance, a decommissioning plan IS NOT to be publicly filed until “120 days after construction is completed.” Under this ordinance term, a wind farm would be fully completed and then, and only then, would the developer tell the public how it handles the project’s “end game.”[xiv] Further, the ordinance provides NO PUBLIC REVIEW, hearing, and approval process for a decommissioning plan. The developer sets the terms without consideration of a public hearing and approval process. The public and county should have a right to understand and approve the specifications a developer has in its written decommissioning plan at the same time the developer seeks approval for the very project. It is a little late for the car owner to buy car insurance after he has had an accident.[xv] The construction of any wind development project is significant.[xvi] Under the proposed ordinance, for example, the developer only has an obligation to remove underground cables, foundations, buildings, and ancillary equipment to a depth of four (4) feet. Contemporary turbines are larger than in the past, electrical requirements are critical, more roads are necessary, and wiring and cabling of substations is expensive and requires a lot of construction activity.[xvii] Should all of this development be approved by the county without the public first being told how it will all be dismantled by the operator if and when dismantling becomes necessary? If a developer knows its plan, does the economic tests for project feasibility like a cost-benefit analysis, and takes the advice of engineers and experts who have reviewed and approved a proposed project, then that developer will also have sufficient project information and technical savvy to — at the same time as applying for a permit — disclose how the developer plans to decommission its project.
13. NO PUBLIC NOTICE AND HEARING FOR SOIL EROSION PLANS. The proposed ordinance does not require any public participation or county approval—all following a public hearing with requisite notice— on the important matter of a soil erosion, dust management, and sediment control plan.[xviii] The ordinance merely requires a developer “file” a soil plan. Further, under the proposed ordinance the plan need not be filed at the time of the permit application. The proposed ordinance, throughout, consistently allows for modest disclosure without an effort to provide due process for county residents and property owners.
14. NO ADEQUATE BONDING REQUIRED FOR WIND ENERGY PROJECTS.  The proposed requirements for financial assurance are nonexistent. The proposed ordinance states, “After the tenth (10th) year of operation of a [wind farm], the Board may require a performance bond. . . .” The Board is not required to set a bond or required to ask for financial assurance of any type. The county has the authority to waive the requirement entirely or set it too low to really matter. Financial assurance by the developer should be required at the time the project is approved. Projects involving some government oversight are usually regulated because of a project’s environmental or property rights impact. The purpose of regulation is to safeguard the public in the event of a problem arising from such a project. End-of-life decommissioning is a common contingency event.  Proper planning, evolving around the full life of a proposed project, is key.  But government is not always well endowed with the skills to protect the public from end-of-life events. What if a project is abandoned or bankrupt in year one, two or three? And indeed what are the financial criterion for the county in setting the financial amount for a project? There are none under the proposed ordinance. Recent experiences in South Dakota on this subject spotlight this problem. A few years back, a state-licensed grain company (in the old days we called them grain elevators) by the name of Anderson Seed Company went belly up. Authority for setting bonds was then and still is given to the S.D. PUC. The bond for Anderson was set at $100,000 — $2.6 million was lost. The insolvency of the company resulted in a little over 4 cents on the dollar paid back to those parties who lost money in the insolvency. The bond was inadequate. The payout to the innocent grain sellers/producers was inadequate. The end-of-life planning was not well done. This experience resulted in a change in the law, but that change is itself an incomplete effort at planning a project end-of-life, that is, a decommissioning event.
15. NO LIABILITY INSURANCE REQUIREMENT IN PROPOSED ORDINANCE.  The proposed ordinance has no insurance requirements for a wind farm operation or wind farm construction. Why would Campbell County not require general liability insurance on a large construction project and also not have the county named as an additional insured? The U.S. Department of Energy recommends local wind ordinances have an insurance provision.
    One recommendation states there “shall be maintained a current general liability policy covering bodily injury and property damage. Certificates shall be made available to the county.”

14. PROPOSED ORDINANCE DOES NOT REQUIRE ANY INDUSTRY STANDARDS.     The proposed ordinance does not require inclusion of wind industry standards for construction, operation or demolition of a wind farm project, other than those required for aircraft safety.  However the Campbell County proposed ordinance requires industry standards for other non-wind projects. Why would a wind farm project get a free pass on industry standards when other non-wind farm projects to be approved by the county do not get a free pass on industry standards?
    An acceptable industry standard for a wind energy facility would state, “The design of a Wind Energy Facility shall conform to applicable industry standards, including those of the American National Standards Institute.  The Applicant shall submit certificates of design compliance obtained from relevant certifying organizations.”

15. CONCLUSION AND ADVISORY NOTE.  This memo does not cover all legal issues that exist on the proposed ordinance. You are respectfully advised that issues, statements, and questions presented herein do not constitute a complete statement of, or a waiver of, any legal rights my clients may have now or in the future.

 

Thank you.

 

Endnotes (Matters The Commission Should Also Read And Consider)

[i] SDCL § 11-2-10.1 (2018) (South Dakota’s temporary zoning statute).

[ii] SDLC § 11-2-18 (2018).

[iii] SDLC § 11-2-19 (2018).

[iv] See Wedel v. Beadle County Com’n, 2016 S.D. 59 (S.D. 2016) (citation omitted).

[v] See Robert Bryce, Wind power is an attack on rural America, Los Angeles Times (Feb. 27, 2017) (“Rural residents are objecting to wind …. They don’t want to live next door to industrial-scale wind farms. They don’t want to see the red-blinking lights …, all night, every night for the rest of their lives. Nor do they want to be subjected to the audible and inaudible noise ….”), at https://www.latimes.com/opinion/op-ed/la-oe-bryce-backlash-against-wind-energy-20170227-story.html.

 

[vi] See David Ganje, Wind turbines ordinances revisited, Capital Journal (Nov. 8, 2017) (discussing South Dakota’s Lincoln and Walworth County setbacks, which exceed one mile) (“A[n] expert in property valuations … used a [] two-mile minimum as a benchmark for turbine setbacks.”), at https://www.capjournal.com/opinions/columnist/wind-turbine-ordinances-revisited/article.html.

[vii] Trempealeau County, Wisc. (1-mile setback from all homes and workplaces); Mason County, Ky. (1-mile setbacks at property line, shadow flicker limitations, decommissioning); Sumner, Me. (1-mile setback from property line, low-frequency noise/shadow flicker limitations, decommissioning). Each county name is a link to the actual ordinance.

[viii] See Tony Fleming, Wind Ordinance Debate: The 1,000-foot Set-Back Standard (Are environmentalists underregulating themselves?), Master Resource (Jan. 23, 2012), https://www.masterresource.org/wind-offset-distance/wind-ordinance-offset-debate/.

[ix] See Paul W. Wilke, Road Use Agreements to Mitigate Impacts of Energy Developments on Low Volume Roads, Applied Research Ass’n (2017) (On average, 43 truckloads are needed to build 1 wind tower foundation, 35 truckloads for the main crane of each wind tower, 25 truckloads for support cranes for each wind tower, and 313 truckloads per mile of road built), at https://www.countyengineers.org/assets/Presentations/2017/wed 2pmfinan wilke.pdf.

[x] Campbell County Ordinance #2019-1 § 5.22.03 (2018).

[xi] Codington County Amended Ordinance # 68 § 5.22.03 (2018), at https://www.codington.org/wp-content/uploads/2018/04/Ordinance-68-Wind-Energy-Systems-1.pdf.

[xii] Id. at § 5.22.03.1.f.ii. (Requiring road agreement approved by county); id. at § 5.22.03.15.ii.b., d., g., h., i. (Amending mitigation and CUP application requirements to address problems with haul roads).

[xiii] See J.T. Fey, County working on road haul agreement with Apex Energy, Watertown Public Opinion (Aug. 8, 2018) (The commissioners had dealt with another road haul issue before.”) J.T. Fey, Concerned citizen raises question about road damage, Watertown Public Opinion (July 27, 2018) (“[D]amage to a Codington County road has one citizen concerned about … construction on wind towers ….”).

[xiv] See Joshua Conaway, Be Aggressive with Wind Energy: Blow Away the Decommissioning Fears, 2 Oil & Gas, Nat. Resources & Energy J.621 (2017) (“Without proper regulations, a strong likelihood exists that these turbines will remain in place long after their useful lives have expired.”), at http://digitalcommons.law.ou.edu/onej/vol2/iss6/3.

[xv] See David Ganje, Wind Energy Development Memo // Decommissioning (2018), at http://www.windaction.org/ganje-memo-on-decommissioning.

[xvi] See Hayes Stripling, Wind Energy’s Dirty Word: Decommissioning, 95 Tex. L. Rev. 123 (Nov. 2016) (There is no easy answer for when a surety bond should be required. But “[w]hat is clear is that …  security [should] be in place on or before a project’s payout date.”), at http://texaslawreview.org/stripling.

[xvii] Id. (Avg. of 10 WES decommissioning cost $129,000 per turbine, ranging from $27,000 to over $650,000 per turbine.); see also Conaway supra note XIV (“These costs, if allocated on a per-turbine basis, are $25,899 and $92,463 respectively per turbine, solely for road removal.”) (emphasis added).

[xviii] Lisa Linowes, The Incompatibility of Wind and Crop ‘Farming’, Master Resource (July 1, 2013) (“[F]armers tell us that the ground is never the same…. The [once] fertile soil around the towers is … compacted resulting in lower crop yields. Since compaction is assumed to be a construction-related impact, crop-loss payments are often time-limited …. However, … the massive cranes [are] brought back … throughout the life of the project. And it’s not limited to existing roads or turbine pads….”), https://www.masterresource.org/linowes-lisa/incompatibility-wind-crop-farming/.

by David Ganje.