Franklin County Commissioners approved an amendment to the Franklin County Citizens and Subdivision Control Code to regulate solar and wind power in the county at their April 20 meeting, a process that began in the summer of 2020, and immediately begin the process to revise the ordinance.

Commissioner Tom Linkel began the meeting stating he had received a number of communications requesting the county ban solar in both prime and secondary agriculture zones (A-1 and A-2). He explained Indiana state law prohibits the county from an outright ban. If the county fails to implement changes to the zoning code, a request to build a commercial solar installation would require the proposed location to be rezoned to an industrial zone, which commissioners were opposed to. Before reviewing the proposed text, Linkel opened the floor to public comment.

Public comment started with Bath Township property owner Elissa Nafe voicing concerns about how changes to the zone map will affect property values and setbacks from non-participating property owners. Linkel agreed with the need to increase setback and protect property values; he asked county board lawyer Grant Reeves for feedback. Reeves noted the setback increase and explained a property value guarantee could be added requiring the developer to purchase land from adjacent property owners, if the neighbor desires.

Linkel added he would like to see additional insurance requirements be included to cover pollution and cybersecurity, as well as a requirement to update insurance requirements annually to keep up with inflation. Commissioner Gerald Wendel suggested the need to protect property values of adjacent parcels from heat created by solar installations.
Gerald Bruns asked commissioners if anyone has considered the cost of cleaning up solar facilities when they are closed down. Commissioner Tom Wilson replied the proposed text requires a decommissioning plan and bond to cover those expenses.

Glenn Bruns asked commissioners why Bath Township was being targeted for solar development and suggested placing renewable energy installations on Brookville Lake. Linkel suggested Bath Township was likely chosen because of the proximity to existing power lines and flat topography.

Mildred Simmermeyer asked when eminent domain would come into play to seize property from property owners who do not wish to lease their land to solar developers. Reeves replied as private companies, solar developers would not be able to use eminent domain.

Property owner Traci Robinson encouraged commissioners to send the proposed text back to the Franklin County Area Planning Commission (APC) with A-1 removed from permitted zones. She asked commissioners to do their research before rushing to approve the amendment.

Linkel replied the rush to adopt an amendment is because there are currently no regulations in place. Reeves explained because there is no ordinance regulating solar installations, if a developer wished to build a solar facility, they would be coming to the APC and Franklin County Board of Zoning Appeals asking for a conditional use.

“That conditional use would have no parameters, we'd have to negotiate everything from the ground up. It's clear in state law we cannot outright ban it, so we would have to negotiate things at every level instead of having an ordinance to start from and start imposing conditions,” stated Reeves.

“A conditional use also means permitted use, so I'd like to know how...” said Robinson.

“A conditional use does not mean a permitted use. A conditional use has to get a special exception. They have to go before the boards and get approval and they can impose conditions upon that approval, or they can reject that conditional use,” replied Reeves.

“So where does it stop, is my question?” asked Robinson.

“It can stop at the rezone...” replied Reeves.

“Unh-uh. I mean project wise. So, every county we're looking at, this is phase one. They got an ordinance in place and they came back for phase two, phase three. And then how do you look at a county resident and say, 'he got it, he can make the money, but we're done there.' So we need to put that in from the get-go then. That we will only allocate x amount of our ground in this county for such. Or are we just going to let them take over?” interjected Robinson.

“They come on in a case-by-case basis. That's the way zoning works, they come and request a rezone, the commissioners consider that application on a rezone. This is not allowed in A-1. I don't know why you and others keep stating over and over it is allowed in A-1. It would only be allowed in A-1 following a rezone. That is a process that has to go before the APC and come back to the commissioners,” replied Reeves.

“My question, Grant, is where, in the court of law, have they clearly stated that we have to, because it's subject right now. We think it will not hold up, but no county in the state of Indiana has actually been to the courtroom and been held accountable to that. So let's take our chances. Come on,” said Robinson.

“The commissioners and the APC can reject the rezone. The APC and the BZA can reject the conditional use. They can put conditions on those. I've litigated that up to the court of appeals and denied transfer to the supreme court about what can be put on a wind farm as a condition… What they are putting in here tonight, if they put it in, is a baseline ordinance, and then there are multiple steps and multiple hearings… it would not be automatically allowed in A-1 or A-2 under any circumstance… the only place where it would be allowed automatically as a conditional use that would still need to be approved, in and of itself, would be industrial. It's not even permitted in industrial. So they have to go through at least four hearings plus a technical review on any project that comes into the county… There is no automatic rezone, nothing in that ordinance is rezoning anything right now to A-AES, it is just creating the zone and on a particular project they would have to come in and get that rezone and that can be denied,” said Reeves.

“I know you guys, or a lot of you are looking at it anyway, like we are giving in to A-1, A-2, it is not. This ordinance puts guidance and how we would work it. I don't know how else to say it,” replied Linkel.

“It's not something that we wanted. We didn't go out and try to select a solar company to come here, you know, this was brought to us and throwed in our laps,” said Wilson.

Glenn Bruns returned to the podium and asked what would happen if a project is allowed and the reflection from the solar panels creates a heat problem for a resident with a hog building. He suggested, if renewable energy was developed on the lake, they could charge more for a fishing license because they could fish in the shade.

APC member Connie Rosenberger asked if a limit could be placed on the amount of land dedicated to solar development. Commissioners asked Reeves, who replied he has not seen any counties try it.

Commissioners continued hearing public comments for another forty minutes addressing concerns about drainage, setbacks, trash accumulating on fences, snow drifts, property value, decommissioning and ground cover before Reeves offered commissioners their options going forward. He explained the proposed ordinance has bounced between commissioners and the APC several times, with the APC suggesting amendments including cemetery setbacks, drainage, ground cover and insurance coverage. Commissioners can accept what the APC sent back, putting a baseline ordinance in place; they may reject the newest changes presented by the APC and accept the last version of the text compiled by commissioners, or they can return the text to the APC with their own suggested changes.
Wilson suggested putting a baseline ordinance in place and make further amendments based on the meeting's public comments; Linkel agreed.
Commissioners voted to approve the ordinances regulating alternative energy system zoning and called a special meeting for Monday, April 26 to discuss further changes.

At the April 26 special meeting, Reeves presented the amendments he and BZA member David Mannix had worked on based on the concerns presented by commissioners.

The first amendment would place a 650-foot setback from adjacent residences. Reeves noted the ordinance already requires a 100-foot setback from non-participating property lines; the solar installation would need to meet both setback requirements. Wilson asked who would be responsible for maintaining the dead space between the property line and the installation. Reeves replied it would need to be maintained; who maintains it would be between the land owner and the developer. That 650-foot setback would apply to new homes built on parcels adjacent to solar installation, although this setback could be waived by the homeowner if they choose.

Reeves reviewed a series of changes to the insurance requirements. While cyber security insurance could be purchased, state and federal regulations require strict protocols when connecting to the electric grid. Linkel suggested leaving the cyber security insurance requirement. Reeves noted suggested changes to the hold-harmless provision clause: the provision would only apply to negligence, not willful or wanton conduct, and only cover damages over $100,000. He likened it to a deductible. Commissioners agreed. A requirement for a minimum of $1 million in pollution insurance per 200 acres of fenced area, with the total negotiated as part of the approval process. Insurance policy values are linked to the Bureau of Labor Statistics Consumer Price Index and the APC may review the coverage every 10 years.

The property value guarantee would require developers to purchase the property of non-participating residences within 1000 feet if the homeowner chooses. The clause would require an appraisal based on properties at least two miles away from the project at the expense of the developer. The homeowner would have 12 months from the day the project goes online to utilize this clause.

The owner/operator of the solar site will be required to provide equipment and training to local fire and emergency medical service providers to be able to effectively respond to emergencies at the site. The equipment and training needs will be negotiated by the local agencies involved.

The ground cover requirements were updated to reflect the wording in the Indiana Solar Ordinance, requiring sites to be planted and maintained with native, perennial, vegetative ground cover. The clause requires the control of invasive and noxious weeds and prohibits the use of insecticides in green spaces.

Finally, Reeves took the changes to the solar regulations and applied them to wind turbine sites when applicable. He noted he has worked on trying to put in a county-wide cap on the total acreage of the county able to be dedicated to alternative energy developments. Such a policy could raise equal protection problems, potentially opening the county to a lawsuit. Mannix proposed updating the county's comprehensive plan with policies to protect farm ground.

After a round of public comment, Linkel made a motion to advertise the proposed amendments for review by the APC, Wendel seconded and the commissioners voted to approve.