Ellsworth County Resolution to approval conditional use permit for Cross-County Wind
(First Published in the Ellsworth County Independent/
Reporter, December 22, 2016)
CONDITIONAL USE PERMIT
RESOLUTION NO. 2016 – R17
Effective December 19, 2016
A RESOLUTION APPROVING A CONDITIONAL USE
PERMIT AND THE WIND ENERGY DEVELOPMENT DISTRICT FOR CROSS-COUNTY WIND, LLC TO DEVELOP, CONSTRUCT, OWN AND OPERATE THE CROSS-COUNTY WIND POWER PROJECT.
WHEREAS, Cross-County Wind, LLC, a Delaware limited liability company (“Developer”) has come before Ellsworth County seeking a Conditional Use Permit for the siting, construction, and operation of a wind power project, in one or more phases, with an anticipated nameplate capacity of up to six hundred megawatts (600 MW) (the “Project”) to be located in the Townships of Noble, Black Wolf, Palacky, Lincoln, Ash Creek, Empire (West), Valley, Green Garden, Thomas, Trivoli, and Langley in Ellsworth County, Kansas, in the area set forth on the Wind Energy Development District attached hereto as Exhibit A (the “District”);
WHEREAS, the Board of County Commissioners for Ellsworth County, Kansas (“Ellsworth County Commissioners”) is the governing body for Ellsworth County, Kansas (the “County”) and has the authority to adopt resolutions to promote and advance the health, safety and welfare of the public and encourage private development in order to enhance the local tax base and create employment opportunities in the County;
WHEREAS, the Ellsworth County Commissioners have the authority to approve and implement land use and zoning regulations; however, no land use and zoning regulations relevant to the siting, construction, operation, maintenance of a wind farm have been adopted;
WHEREAS, Ellsworth County is vested with the authority under K.S.A. 19-101a et seq. to exercise the powers of Home Rule to determine the local affairs of Ellsworth County, Kansas and to perform all powers of local legislation and administration as it deems appropriate to protect and preserve the interests of the citizens of the County;
WHEREAS, Ellsworth County has not implemented any other land use or zoning regulations by which a permit or other administrative license, approval, or conditional procedures is necessary for the siting of any commercial or industrial activity such as a wind farm;
WHEREAS, Developer has executed leases or easements with multiple landowners within the District for the development, construction, installation, operation, repair, replacement and maintenance of wind energy conversion systems (wind turbines) and related wind project facilities and intends to acquire additional leases and easements therefor;
WHEREAS, Developer has submitted requests to the Southwest Power Pool to interconnect the Project to the high voltage transmission system in Kansas;
WHEREAS, Developer has completed biological, avian, and other environmental studies in the District;
WHEREAS, Developer has installed multiple metrological towers within the District to measure wind speeds and other meteorological data;
WHEREAS, since Ellsworth County currently has no zoning or administrative regulations in place by which to issue a traditional Conditional Use Permit, the Ellsworth County Commissioners have instead agreed to review the District, determine whether the approval of the District and a Conditional Use Permit is in the best interest of Ellsworth County and advances the health, safety and welfare of the public, and, if approved, grant a Conditional Use Permit by resolution;
WHEREAS, Developer has requested the Ellsworth County Commissioners to (1) review the District submitted by Developer on December 19, 2016, (2) state any conditions that the Ellsworth County Commissioners seek to have adopted by Developer in implementation of the project within the District, (3) vote on whether the Ellsworth County Commissioners support or oppose the District with the adoption of any such conditions, and (4) to the extent authority exists to do so, approve the District and issue a Conditional Use Permit by resolution;
WHEREAS, it is the intent and purpose of the County, through this Conditional Use Permit, to support and authorize the orderly development, construction, operation, maintenance, repair, replacement and decommissioning of the Project in the County;
WHEREAS, the contents of this Conditional Use Permit Resolution and the approval of the District by the Ellsworth County Commissioners is intended to satisfy the requirements for the “lifetime” property tax exemption established under K.S.A. 79-201 Eleventh and shall be considered to be the functional equivalent of the receipt of a Conditional Use Permit from Ellsworth County had Ellsworth County adopted zoning regulations;
WHEREAS, the approval of the District by Ellsworth County Commissioners outlined in this Resolution shall also be considered to be a device for permitting certain land uses considered essential or desirable to the community to be placed in areas which would ordinarily be considered incompatible, subject to reasonable standards and conditions designed to protect the interest of adjoining landowners;
WHEREAS, the Ellsworth County Commissioners provided notice of the time and place of a public hearing for the consideration of the District and the Conditional Use Permit by publication in the official County newspaper;
WHEREAS, on December 19, 2016, Ellsworth County Commissioners conducted a public hearing and reviewed the District, with 3 members present, and voted (3) in favor and (0) opposed to accept and support the District and approve a Conditional Use Permit subject to the following conditions:
a. Developer will abide by all applicable federal and state codes, as a guide for the development of the wind farm.
b. Wind turbines and related structures within the District shall be located on property within the District that Developer either owns or will own or property for which Developer has or will have a lease, easement agreement or other agreement to participate in the development of the Project. The wind turbines and related structures shall be installed in compliance with manufacturer recommended specifications for installation.
c. Prior to commencement of construction, Developer and the County shall negotiate and execute a County Contribution Agreement to allow Developer to make contribution payments to Ellsworth County. In the event that an agreement cannot be reached, this CUP Resolution shall terminate.
d. Prior to commencement of construction, Developer and County shall negotiate and execute a road maintenance agreement. Construction transportation routes shall be coordinated with the Ellsworth County Road and Bridge Department. A preconstruction and post construction road assessment will be conducted by a third party Engineer agreed to by the Developer and the Ellsworth County Commissioners with the expenses being charged to the Developer. All roads shall be restored to original road condition or upgraded by Developer. Dust control will be used when necessary. Developer is responsible for any damage to county and township roads from tower construction, deconstruction, or maintenance activity.
e. Wherever practicable, collection lines and communication lines are to be installed underground unless the routing of such lines requires them to be above ground for a distance necessary to avoid rock formations, rivers, creeks, arroyos, and other similar natural obstacles.
f. High voltage transmission lines and appurtenances between any substation to be located on the Project site and the substation or other point of interconnection to the electric transmission grid will be installed above ground.
g. All turbines will be GPS located and Ellsworth County may assign 911 addresses for each turbine.
h. Developer or its contractor is responsible for all waste streams created, stored and transported and must follow all state and federal laws.
i. Developer will follow all county, state and federal employees' regulations as well as OHSA 29 CFR 1926 and 1910, EPA, and DOT Requirements.
j. Turbine Identification Numbers shall be clearly visible at normal sight level. No lattice turbine structures are allowed.
k. All tower lighting will comply with FAA requirements as well as any other federal and state requirements.
l. Once it is connected to an electric transmission grid, the Project shall meet the applicable interconnection and operation requirements set forth in the electric utility’s or regional transmission organization’s then-current service regulations, as well as state and federal laws.
m. The Project shall operate in conformance with Federal Communications Commission (“FCC”), Federal Aviation Administration (“FAA”), Occupational Safety and Health Administration (“OSHA”), Environmental Protection Agency (“EPA”) and other applicable regulations promulgated by these and any other federal and state agencies.
n. Project facilities and equipment shall not be used for displaying any advertising except for reasonable identification of the manufacturer and/or operator of the Project.
o. All wind turbines shall be white, gray or other non-obtrusive color with finishes that are matte or non-reflective unless otherwise required by the FAA or other applicable authority.
p. There shall be no lights or decorations affixed to the external portions of the Project’s wind turbines other than those required by the FAA or any other applicable agency or authority, except for infrared heating devices used to protect the Project’s wind monitoring equipment or lighting required for the safe operation and maintenance of the Project.
q. From and after construction of the Project commences, the Project shall provide the County annually with evidence of insurance carried by the Project.
WHEREAS, the Ellsworth County Commissioners, to the extent authority exists to do so, approve the Developer’s District inclusive of the conditions set forth herein and the Conditional Use Permit.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF ELLSWORTH COUNTY, KANSAS, AS FOLLOWS:
Section 1. The proposed District and Conditional Use Permit, including the conditions set forth herein, are approved for development of the real property in the District.
Section 2. The County Commissioners hereby grant by resolution a Conditional Use Permit to the Developer and any of its affiliates or assigns, for the construction and operation of the Project within the County.
Section 3. Unless otherwise provided herein, whenever the consents or approvals of the County, or any of its employees, consultants, attorneys, officers, agents, or representatives are required to be secured or obtained by Developer under the provisions of this Conditional Use Permit, the same shall not be unreasonably conditioned, withheld, or delayed. The County will cooperate with Developer in the development, construction, operation and maintenance of the Project and issuance of all zoning, siting, building permits and other permits, approvals and authorizations required by local regulations or other law, if any, provided that Developer complies with all the requirements specified in this Conditional Use Permit.
ADOPTED this 19 day of December, 2016.
BOARD OF COUNTY COMMISSIONERS
OF ELLSWORTH COUNTY, KANSAS
/s/ Terry Kueser, Chairman
/s/ Al Oller Commissioner
/s/ Kermit Rush, Commissioner
ATTEST:
/s/ Shelly Vopat, County Clerk
APPROVED AS TO FORM:
County Counselor
EXHIBIT A
1t 12/22
