LEGAL PUBLICATION

As published in the McPherson Sentinel Tuesday, November 22, 2005 and
posted on-line Wednesday, November 23, 2005 4:11 PM CST

RESOLUTION NUMBER: 2005-21

A RESOLUTION AMENDING THE McPHERSON COUNTY ZONING REGULATIONS as last AMENDED ON AUGUST 2, 2005 and EFFECTIVE on AUGUST 9, 2005.

WHEREAS, during the months of March, April, July, August and September of 2005, it became apparent to the McPherson County Planning Board that amendments may be necessary to the McPherson County Zoning Regulations because said regulations do not specifically address electrical wind generating facilities in any form; and

WHEREAS, said Board initiated on September 19, 2005, the study and review of possible amendments to Articles 3 and 4 of said Zoning Regulations that were last adopted and amended by the Board of County Commissioners on August 2, 2005, to address the lack of specific wording regulating electric wind energy conversion facilities either of a private, commercial or industrial scale; and

WHEREAS, the McPherson County Planning Board has the responsibility of holding public hearings on proposed amendments to the McPherson County Zoning Regulations; and

WHEREAS, a proper legal notice of public hearing held by the McPherson County Planning Board on the proposed amendments was published in the McPherson County Sentinel, the official county newspaper, on September 26, 2005; and

WHEREAS, a public hearing on the proposed amendments to the McPherson County Zoning Regulations was held by the McPherson County Planning Board at a regularly scheduled meeting during the evening of October 17, 2005; and

WHEREAS, the McPherson County Planning Board did discuss and review the proposed amendments concerning adding specific wording regulating electric wind energy conversion facilities (wind farms as referred to by some) to Article 3, Section 105, Paragraph H; Article 3, Section 107; and Article 4, Section 102, Paragraph C, #26; Section 109, Paragraph C, #6 and Section 110, Paragraph C, #12 of said Zoning Regulations during the above listed meeting date; and

WHEREAS, the Planning Board has determined that these proposed amendments to the McPherson County Zoning Regulations, to be made to Articles 3 and 4 are in the public interest in the name of clarity, equity, and due process, and did at its meeting held on October 17, 2005, recommend to the Board of County Commissioners that said amendments be adopted;

NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF McPHERSON COUNTY, KANSAS, that the following amendments to the McPherson County Zoning Regulations are hereby adopted:

TO WIT, that the following Article, Sections, Paragraphs and Item of the McPherson County Zoning Regulations as originally and last adopted by the Board of County Commissioners are hereby amended to read as follows:

{Note: To increase the clarity of the below amendments, the wording that appears below contains the new wording of the zoning regulations and following said wording, enclosed in brackets and italicized, is a brief explanation of each amendment.}

Amendment #1: to Article 3, Section 105, Paragraph H, Item #3:

H. Height Limitation Exception. The height limitations of this resolution shall not apply to:

  1. Church spires, belfries, cupolas, penthouses and domes not used for human occupancy; or
  2. Chimneys, ventilators, skylights, water tanks, bulk heads, and other similar features and necessary mechanical appurtenances usually carried above the roof level; or
  3. Property owner wind generators, as defined in Section 107 of these regulations.

[This amendment would help define smaller-scale private wind generators and would exempt them from the normal height restrictions of the county zoning regulations.]

Amendment #2: Article 3, Section 107, Electric Wind Farm Station (WFS).

107 Electric Wind Farm Station (WFS). An electric wind farm station is seen as a commercial or industrial land use, whereby electricity is generated from the wind and consisting of the erection or construction of more than one turbine.

A conditional use permit (CUP) from the Board of County Commissioners and zoning permits from the Zoning Administrator shall be required prior to the establishment of any wind farm station in the A-1, M-1 and M-2 zoning districts. The WFS land use shall be prohibited in all other zoning districts governed by these regulations.

Three generating turbines, not exceeding 15 meters in turbine diameter per parcel, shall be allowed according to Section 105, Paragraph H, Item #3 of this Article. These latter described turbines shall deemed to be "property owner-type" wind turbines and are of a smaller scale than commercial turbines.

A. Minimum Requirements. In addition to the requirements of Article 5, Sections 104-108, governing and delineating the processes for zoning amendments and conditional use permit requests of these regulations, the following requirements shall apply to a conditional use permit request for a wind farm station:

  1. No turbine shall be located closer than the total turbine height plus 50 feet from public roads or from property lines outside the CUP area or closer than 2000 feet from any active residence located off the CUP property.

    An active residence located within the 2000 feet area described above may be located within that area if the property owner supplies a properly signed and executed waiver form and this is supplied to a CUP applicant and this is filed with the CUP application.

    Total turbine height is defined as the height of the structure supporting the turbine, plus the height of the rotor blade at its highest point, measured from the elevation of the ground surface at the base of the tower.
  2. The lowest point of the rotor blades shall be at least 30 feet above the elevation of the ground at the base of the tower.
  3. All communication and electrical power collection lines shall be installed underground in the area covered by the CUP. Transmission lines coming to the station and taking generated electricity from the facility may be installed aboveground.
  4. Structures for wind turbines shall be self-supporting tubular-type towers painted a neutral color such as white, gray, pale blue or green. No lattice-structured towers shall be allowed.
  5. Turbines shall be lit according to Federal Aviation Administration (FAA) regulations. Illumination shall be allowed for infrared heating devices used in the protection of wind monitoring equipment.
  6. No advertising, signs or logo information shall be allowed on any of the tower or turbine structures of the station.
  7. The WFS, once established, shall not cause microwave, radio, television, cellular phone or navigational reception quality problems to any person or property not on-site of the applicant's property or land use. If reception qualities are affected, the applicant shall take measures to correct the reception problems in a timely manner. All WFS's shall operate in conformance with Federal Communications Commission(FCC) regulations.
  8. The applicant shall supply to the Zoning Administrator prior to zoning permit application for a WFS a letter from the Kansas Department of Wildlife and Parks (KDWP) attesting to the fact that no threatened or endangered species as designated by the Kansas Nongame and Endangered Species Conservation Act of 1975 and amendments thereto, shall be negatively affected by the construction and operation of said wind farm. If affected, the applicant shall provide a copy of the special action permit issued from the KDWP for the proposed use.
  9. A WFS shall not be located in the 100-year flood plain as designated on a Flood Insurance Rate Map (FIRM) unless there is no alternative upon the property under consideration for the said proposed use.
  10. The maximum sound level permitted for a WFS shall be 65 decibels measured at the boundary of the CUP property.
  11. The applicant shall meet the following requirements pertaining to controlling soil erosion and sediment management:
    1. minimal amounts of soil shall be excavated during the construction process;
    2. exposed soil shall be protected from erosion during the construction process;
    3. measures shall be taken to minimize sediment flows using standard management practices;
    4. areas disturbed during either the construction or post-construction phases of the project shall be re-vegetated using seed materials approved by either the McPherson County Natural Resource Conservation office or the McPherson County Conservation District;
    5. maintain erosion and sediment control measures during construction of the WFS and for the entire life of the facility.

B. Application Features. The following is a list of required items that shall be shown on the application by the applicant for a proposed WFS land use:

  1. 1. Name of project and site location.
  2. Name and contact information of the applicant, their developer(s) and/or contractor(s) and surveyor associated with the proposed station. Also included with this item shall be information about the applicant/company and their qualifications, experience and financial ability to construct and operate a WFS or similar type facility.
  3. The vicinity of the project (station) site.
  4. Relevant information such as scale or magnitude of the proposed project, time frame, project life, possible phases of development and future expansion of the station.

C. Site Plan Features. The following is a list of required items that shall be shown on the site plan provided by the applicant for a proposed WFS land use:

  1. Name of project and site location.
  2. Name of the landowner where the WFS is proposed to be located.
  3. Property lines and boundary lines and size of proposed station affected by CUP. The size of the proposed station shall be listed in acres.
  4. The applicant shall meet the following requirements pertaining to existing public roads, bridges and utilities, whether they are currently maintained by a local township or by McPherson County:
    1. all local roads in the vicinity of proposed station and proposed vehicular ingress/egress points.
    2. identify all public roads and bridges that will be used during the construction and then later for the maintenance of the WFS so these roads can be inspected and their pre-construction conditions inventoried by the entity having jurisdiction over said roads;
    3. be responsible for making necessary physical improvements to designated roads and bridges with McPherson County Public Works Department or its designee providing the necessary inspections of said improvements; necessary improvement determinations shall be made by the McPherson County Engineer;
    4. enter into an agreement between appropriate townships and McPherson County for public road and bridge construction, reconstruction and maintenance necessary to build and service the WFS;
    5. identify and document what public utilities will be affected by the WFS and where any changes or upgrades to electrical substations, existing power transmission stations or lines or where any realignment of any electrical or other public utilities will be necessary for the construction of the facility.
  5. Two separate maps showing the following information:
    1. all residences within one half mile of the boundaries of the CUP application property, and
    2. all residences within five miles of the boundaries of the CUP application perimeter.

  6. Location of electrical transmission lines.
  7. A schematic drawing depicting proposed locations of turbines, electrical collector and feeder lines, electrical equipment, service roads and other related items.
  8. Any boundaries of the 100-year floodplain as identified on a Flood Insurance Rate Map (FIRM) of McPherson County, Kansas.
  9. Location of any surface water, underground pipelines and any utility easements of record.
  10. Information, which could be in the form of a pre-construction plan about how the applicant intends to prevent soil erosion, manage sediment flow and address storm water drainage.
  11. Provide a plan showing where and to what extent storm water drainage structures shall be necessary.

D. Decommissioning Plan or Abandonment of WFS. The applicant shall submit a Decommissioning Plan describing the manner in which the WFS will be dismantled and removed from the site at the end of its useful life. The following shall be the requirements of said Decommissioning Plan:

  1. All aboveground components of the WFS to a depth of four (4) feet shall be removed in a legal manner.
  2. Access roads shall be removed to the owner's satisfaction.
  3. The applicant shall submit a surety in the form of an escrow account, surety bond or insurance policy in an amount approved by the BCC as necessary to restore the site to its pre-WFS development state.
  4. Abandonment for this WFS use shall be defined as any one (1) year period of time where the facility does not produce any commercial electrical power and there is no plan demonstrated by the CUP holder to restore or begin commercial electrical power generation. The CUP holder shall report annually to the Zoning Administrator in an affidavit certifying the commercial electrical power generation of the WFS.
  5. At the end of the WFS's useful life or if the WFS is abandoned as defined above, the site shall be restored according to the requirements stated above within twelve (12) months.

[This amendment adds all of Section 107 to the zoning regulations and defines WFS's, sets parameters for their establishment, details requirements for a WFS CUP application and site plan and delineates requirements of a decommissioning plan.]

Amendment #3: Article 4, Section 102, Paragraph C, #26. (This picks up at #24 of the CUP list.)

(24) Other special land uses not specifically listed as a permitted or conditional use, but which in the opinion of the Planning Commission are in keeping with the intent of article 4-102 and compatible with the uses permitted in article 4-102-B.(Section 102, Paragraph C, Item #24 was amended by the BCC on March 9, 2004 via Res. 2004-6; amendment deleted the option or avenue of hardship in which a SWMH could be established upon a parcel based upon a decision by the BCC.)

(25) Recreational activities outdoors, such as miniature golf, archery and commercial golf driving ranges. (Section 102, Paragraph C, was amended by the BCC on August 2, 2005, via Res. 2005-15; this amendment made available the option of applying for a conditional use permit for the outdoor recreational land uses stated above in the A-1, Agricultural District; effective date: 8-9-2005.)

(26) Electric wind farm generation stations, subject to specific regulations and procedures found in Article 3, Section 107.

[This amendment adds the land use of electric wind farm generation stations to the list of uses required to obtain conditional use permits (CUP's) from the board of county commissioners (BCC) prior to their establishment in the A-1, Agricultural Zoning District.]

Amendment #4: Article 4, Section 109, Paragraph C, #6. (This presents the entire CUP list of the M-1 zoning district.)

C. Land Uses Allowed by Conditional Use Permit.

A conditional use permit is a special zoning permit that is reviewed by the Planning Commission during a public hearing on the application. The Planning Commission makes an advisory recommendation to the Board of County Commissioners for approval with conditions, or for denial. The Board then acts to approve the permit, possibly with conditions, or to deny the application. Conditions attached to the grant of a conditional use permit become a covenant running with the land and binding on the applicant and subsequent owners, or operators, wishing to conduct the same permitted land use. The procedures for applying for a conditional use permit area contained in article 5. The following is a list of land uses that may be allowed by conditional use permit. This list is not all inclusive.

  1. Salvage yards and automobile graveyards subject to the same conditions required in the A-1 zoning district.
  2. Storage in quantity and not used as part of a normal manufacturing process of such items as anhydrous ammonia, oil, gas and other products which may be considered as highly explosive, combustible or of a volatile nature.
  3. Private and public sanitary landfills and hazardous waste facilities.
  4. Other land uses not specifically listed as a permitted or conditional use, but which in the opinion of the planning commission are in keeping with the intent of the zoning district and compatible with the uses permitted by issuance of a zoning permit.
  5. All subdivisions of land shall be processed and allowed only as conditional use permits and also according to the procedures of the county subdivision regulations.
  6. Electric wind farm generation stations, subject to specific regulations and procedures found in Article 3, Section 107.

[This amendment adds the land use of electric wind farm generation stations to the list of uses required to obtain conditional use permits (CUP's) from the board of county commissioners (BCC) prior to their establishment in the M-1, Light Industrial Zoning District.]

Amendment #5: Article 4, Section 110, Paragraph C, #12. (This picks up at item #6 of the CUP list of the M-2 zoning district.)

  1. Private and public sanitary landfills and hazardous waste facilities.
  2. Asphalt and concrete mixing plants.
  3. Salvage yards and automobile graveyards subject to the same conditions as required in the A-1 zoning district.
  4. Storage in quantity and not used as part of a normal manufacturing process of such items as anhydrous ammonia, oil, gas, explosives and other products which may be considered as highly explosive, combustible or of a volatile nature
  5. Other industrial uses of a more intensive type not specifically listed as a permitted or conditional use, but which in the opinion of the planning commission are in keeping with the intent of the zoning district and compatible with the uses permitted by issuance of a zoning permit and by adhering to specified conditions can meet acceptable levels of environmental factors. Retail and service business uses not specifically listed as a permitted or conditional use, but which in the opinion of the planning commission would provide a particular direct benefit to the industrial uses and/or serve as a convenience to the employees thereof.
  6. All subdivisions of land shall be processed and allowed only as conditional use permits and also according to the procedures of the county subdivision regulations.
  7. Electric wind farm generation stations, subject to specific regulations and procedures found in Article 3, Section 107.

[This amendment adds the land use of electric wind farm generation stations to the list of uses required to obtain conditional use permits (CUP's) from the board of county commissioners (BCC) prior to their establishment in the M-2, Heavy Industrial Zoning District.]

This resolution shall take effect and be in force from and after its adoption and publication once in the official county newspaper.

Adopted on this 8th day of Novermber, 2005 A.D.

Don L. Schroeder, Chairperson

Duane J. Patrick, Vice-Chairperson

Harris G. Terry, Commissioner ATTEST:

Susan R. Meng, County Clerk

Published in the McPherson Sentinel Tuesday, November 22, 2005 (438)