ROBERT PIERCE
• Leader & Times
Much in the way of conversation has taken place recently regarding bringing wind energy to Seward County, and much of that talk has centered around zoning regulations.
With this in mind, County Counsel Nathan Foreman brought commissioners up to speed on the county’s zoning regulations, particularly those for conditional use permits, and a timeline of previous talks about local wind energy projects at a recent work session.
Foreman estimated Seward County’s most recent adopted zoning regulations are from the 1990s, with two primary uses – agricultural and residential.
“Most of the county is zoned currently as agricultural use,” he said. “There were some areas that were grandfathered in at that time.”
Foreman said at the time, condition use was allowed for under the adopted regulations.
“Conditional use is defined under our regulations as the use of any building, structure or parcel of land that is perceived by its nature to require special care and attention in sighting so as to assure compatibility with surrounding properties and uses,” he said. “Conditional uses are only allowed after public notice, hearing and approval as prescribed in these regulations and may have special conditions and safeguards attached to assure the public interest is served.”
Foreman said conditional use for wind generation falls under this definition.
“The establishment of virtually all land uses except agricultural and traditional single family uses, in most cases, is not appropriate in the unincorporated portion of Seward County, and it goes on to say, ‘However, it is recognized and may be acceptable on a case by case, site by site base to permit development of such land use where conditions warrant and adequate safeguards are taken to mitigate any of the potential problems associated with said development,” he said. “‘Therefore, in order to develop any land use other than agricultural or traditional single-family in the unincorporated portion of Seward County, a conditional use permit is issued in accordance with regulations.’”
Foreman said changes were made to the county’s conditional use regulations in 2022.
“We didn’t have any solar regulations, so it basically folded solar regulations into the wind generation portion,” he said. “Those regulations require a development plan and have setbacks for wind regulation.”
Thus, Foreman said, people have the ability to apply for conditional uses and have done so many times throughout the years for various types of facilities, but it had not been done for wind generation in Seward County since 2010..
“In 2010 was when the additional application occurred,” he said. “The original project was assigned to various producers up to the point where we have Invenergy and the Thresher project. The planning commission had a public hearing, and it passed 5-1 at that time in 2010. Eventually, the commission passed a resolution. There was a development plan the commission allowed to not be provided at that time, but 18 months from that point.”
Foreman said subsequently, extensions were made to provide the development plan, and in 2013, the commission gave developers an indefinite amount of time to provide a development agreement, but there were some required conditions prior to construction.
“There were also agreements that were signed by the developer in 2011,” he said. “Those were a road maintenance easement agreement, wind farm contribution agreement, escrow agreement and wind farm decommissioning agreement. Those types of agreements, to my understanding, aren’t particularly unusual. In fact, we will be negotiating those as we go forward.”
Foreman said wind farm contribution agreements, or payment in lieu of taxes agreements, are seen at times as well.
“My understanding is there’s a tax exemption for wind generation for 10 years,” he said. “The wind companies a lot of times get the contribution during that interim period.”
Foreman said Invenergy, the company currently seeking to build wind farms in Seward County, is not wanting to change the current conditional use permit, but rather apply for a new one.
“That application process now starts over,” he said. “We don’t relate back to what happened before. We now are starting over with the conditional use permit process. There are several things that happen before it gets before this governing body.”
Foreman said the process would start with the Seward County Planning and Zoning Commission.
“There’s an application presented, along with the development plan, and the development plan, according to our regulations, has very specific requirements that have to be provided,” he said. “Those requirements are found in Chapter 27 and Chapter 20 of our zoning regulations. They provide those things in the application process to the zoning administrator.”
Foreman said once this is done, a public hearing is hosted by the planning commission.
“There are notice requirements,” he said. “Notice has to be published. There are some timing requirements for that. There are also notice that has to be mailed by first class mail. The applicant has to certify who those owners are. There’s also signs that are required to be posted where the conditional use is, and once that notification goes out, it publishes in the newspaper.”
At the hearing itself, Foreman said the planning commission hears the application being made, taking detailed minutes before making a recommendation based on guidelines and factors outlined in the zoning regulations.
“They’re a fact finder, and they make determinations based on certain factors of whether to do one of three things,” he said. “That recommendation can be to approve the conditional use, approve with conditions on the conditional use or disapprove the conditional use.”
If the planning commission approves the conditional use, Foreman said a period of time takes place following the public hearing to allow for a protest petition to be filed.
“The protest petition has to be filed with the county clerk within 14 days after the date of the conclusion of the hearing, and it has to be signed either by 20 percent of the property to be rezoned or by 20 percent of the area to be notified,” he said.
Next, the county commission reviews the planning commission’s recommendation and can either adopt it, or it can be overridden with a vote of at least two-thirds of the commission
“You can also return the recommendation with a statement specifying the basis for failure to approve or disapprove,” Foreman said. “The planning commission gets it back, and they can resubmit the recommendation or submit a new and amended recommendation. Upon receipt of the new recommendation, it goes back to you, and the commission by a simple majory may adopt, revise or amend and adopt, or it may disapprove the recommendation or take no further action.”
With the potential of wind energy in Seward County, Foreman said he has heard many concerns about the project, particularly what happens when it would be complete and dealing with that.
“Will these things be spinning in the air for eons? What happens when all these huge windmill blades tear up our roads?” he said. “That’s what these agreements are for, and that’s what these agreements address. There’s security that also gets posted in various forms. There’s different options to make sure there will be a plot of money should Invenergy or whoever not be around at that time.”
Foreman said agreements are important for both the county and wind energy companies.
“They’re very important from our standpoint to make sure the county is taken care of,” he said. “It’s also important so Invenergy knows exactly what they’re getting into and knows any impact.”
Most of all, Foreman said a procedure is in place that has to be followed.
“You have to consider these applications in regards to the factors our regulations show that are for approval or denial or approval with conditions,” he said.
