The Fulton County Zoning Board of Appeals Minutes
Fulton County Board Office, 257 W Lincoln Street, Lewistown, IL.
Phone: Janice Emmons at (309) 547-0902
Committee: Zoning Board of Appeals
Meeting Place: Fulton County Board Office, 257 W Lincoln Street, Lewistown, IL.
Date: April 26, 2023
Call in number: 1-425-436-6307
Access code: 835427
1. Call to Order
Bob Ackerman (xxxxxx/absent)
Sally Jo Clark (present/xxxxxx)
Cathy Eathington (present/xxxxxx)
Mat Fletcher (present/xxxxxx)
Jayson Herrick (xxxxxx/absent)
Bill Phillips (present/xxxxxx)
Damon Roberson (xxxxxx/absent)
FULTON COUNTY BOARD MEMBERS: Laura Kessel
ELECTED & APPOINTED OFFICICALS: Janice Emmons Zoning Director, Julie Russell – Supervisor of Assessment, Justin Jochums – States Attorney
GUEST(S): Jed Rhodes
2. Roll Call/Quorum
Roll Call was taken, quorum present
3. Additions, Deletions, Corrections to the Agenda
Member Fletcher moved to approve the agenda with a second by Member Clark. Motion carried by roll call vote (5-0).
4. Approval of Minutes – March 1, 2023 – Tabled
Chairman Phillips discussed using the court recorders minutes and not duplicating the minutes. Chairman Phillips would like to review the minutes at the next ZBA meeting.
Member Fletcher moved to approve tabling the minutes from March 1, 2023 with a second by Member Roberson. Motion carried by roll call vote (5-0).
5. Public Remarks – None
6. New Business
a. Discussion/Action: PUBLIC HEARING TO REZONE PARCEL #09-08-28-100-014 FROM AGRICULTURAL CONSERVATION (AC) TO BUSINESS (B)
Chairman Phillips swore Jed Rhodes into the public hearing for the rezoning of parcel #09-08-28-100-014 from agriculture to business.
Mr. Rhodes discussed the property is West of Canton. The building is being considered for several uses, a drive through coffee shop, a gaming parlor with packaged liquor sales, commercial glass company and potential storage for a carpet cleaning business.
Chairman Phillips inquired about the name of the company for the development. Mr. Rhodes stated the business name is 309 Developments LLC.
Chairman Phillips closed the testimony portion of the hearing.
A committee member inquired with the Zoning Officer Emmons if any correspondents had been received from neighbors. Emmons stated only 2 inquires had been received about what the property will be used for and no issues were received.
Chairman Phillips inquired is there enough clearance to the property from Old Hickory for new access to the property. Mr. Rhodes stated yes.
Mr. Rhodes discussed the property is behind the DMV and the former Mid-century building is to the west and across the street is the prison union building and 2 additional commercial building are to the east of the property.
Member Clark moved to approve rezoning parcel # 09-08-28-100-014 from agriculture conservation (AC) to business (B) with a second by Member Fletcher. Motion carried by roll call vote (5-0).
b. Discussion/Action: PUBLIC HEARING TO ADOPT AN UPDATED LARGE SCALE WIND AND SOLAR SITING ORDINANCE FOR FULTON COUNTY
Chairman Phillips Chairman Phillips swore a representive from Doral Solar into the public hearing. Doral stated the company is in the process of developing a project in the area and obtaining property rights in Fulton County for a commercial solar project. Doral will be seeking a conditional use permit from Fulton County and the Zoning Board of Appeals in the near future. Doral stated with the recent changes from the State of Illinois and the new law and the changes will bring consistency across the state allowing developers to invest in counties. Doral stated the solar process usually takes 3 to 5 years to develop the project before entering into construction phase.
Chairman Phillips discussed the biggest change is the county will have the ability to have the applicant obtain a court recorder for any commercial solar public meeting to record the meeting and issue the report to the applicant and to Fulton County. The court recorder fees will be that of the applicant.
Chairman Phillips discussed a letter received from Kate Duncan, the attorney representing Doral.
The letter is concerned with the regulations and how the regulations are carried out.
The letter from Kate Duncan stated the following concerns from Doral:
1. There is no reference to the underlying zoning classification in which a Solar Facility is allowed in the Ordinance. Does this mean the Solar Facilities are allowed in all zoning classifications, subject to the Ordinance?
2. Is the Ordinance intended to work with other sections of the Zoning Ordinance? If so, are other changes to the Zoning Ordinance proposed?
Chairman Phillips discussed there are set backs required to work with other sections of the Zoning Ordinance. No changes are required.
Chairman Phillips stated there is no underlying information stating where the solar and wind can be placed in Ag or industrial.
Member Clark moved to approve allowing solar and wind in AG or industrial zones only with a second by Member Fletcher. Motion carried by roll call vote (5-0).
3. There are extensive fees and costs that are associated with the County’s review of any Solar Facility. There is a very high permit fee. (Doral anticipates its permit fee could be approximately $400,000.) The sections that transfer County fees and costs to the developer include:
Chairman Phillips stated this is covered in the state statute and the statute states the county can have reasonable fees. The county does not feel the fees are unreasonable.
DESIGN AND INSTALLATION – Sec. I. Use of Public Roads, 2.b. “The Road District Commissioner and County Engineer may choose to require either remediation of road repair upon completion of the Community Solar Energy Facility or are authorized to collect fees for overweight and/or oversized load permits. Further, financial assurance in an amount to be fixed by the Road District Commissioner to ensure the Road District or the county that future repairs are completed to their reasonable satisfaction shall be provided.”
Chairman Phillips discussed the road repairs upon completion of the Community Solar Energy Facility or are authorized to collect fees for overweight and/or oversized load permits. The county has no way of knowing what these fees will be until the project is completed.
Member Phillips states this applies to the design and installation phase of the wind/solar project.
The other section discusses annual training for the operator for emergency personnel. Member Phillips stated it is required annually.
For decommissioning and site reclamation, the applicant shall provide a decommissioning plan and post financial assurances. Member Phillips stated this is in the Illinois State statue and the county does not have the authority to make this change.
States Attorney Jochums stated a judge will not make the applicant pay an unreasonable amount for road repairs. The statute states counties can charge for the fees and states the fees must be reasonable. If anything is found to be unlawful, the state would supersede.
Member Clark moved to approve allowing solar and wind in AG or industrial zones only with a second by Member Fletcher. Motion carried by roll call vote (5-0).
DESIGN AND INSTALLATION – Sec. R.2. “The costs and fees incurred by the County in retaining said inspector or engineer shall be promptly reimbursed by the Applicant of the Commercial Solar Energy Farm.”
OPERATION – Sec. B. Coordination with Emergency Responders, 2 “The Applicant, at its expense, shall provide annual training for, and the necessary equipment to, the operator and local emergency response authorities and their personnel so that they can properly respond to a potential emergency at the Commercial Solar Energy Facility.”
DECOMMISSIONING AND SITE RECLAMATION PLAN REQUIRED “Applicant or Owner shall provide a Decommissioning Agreement and post the required Financial Assurances for the benefit of the County.”
FEE SCHEDULE AND PERMITTING PROCESS – Sec. 1.b. “Should the actual costs to the County exceed the submitted Conditional Use Permit Application Fee, the Applicant shall be responsible for those additional costs.”
FEE SCHEDULE AND PERMITTING PROCESS – Sec.3.a “In addition to all fees noted above, the applicant or owner shall pay all costs incurred by the County, including but not limited to, those costs associated with all offices, boards and commissions of the County, and third-party costs incurred by the County. This includes but is not limited to the direct or indirect costs associated with the hearing, permitting, operations, inspections, decommissioning, litigation, disputes, and/or negotiation.”
Chairman Phillips stated the Zoning department keeps records of expenses and the fees have been reasonable in the past. The Zoning officer would be consulted on any fee changes.
HEARING FACILITATOR – “The Applicant shall reimburse the County for the fees and costs charged by the facilitator.”
There is the potential for significant additional costs and fees to the Developer, in unknown and unforeseeable amounts. Doral asked that there be some type of “reasonable” standard inserted where the County is asking to extend extra fees and costs to the Developer. They would also ask for consideration of a cap on those extra fees and costs that can be transferred to Developer.
4. Doral asked in the section regarding a “Hearing Facilitator.” Is this meant to act like an administrative law judge? Doral asked, what is the role of the ZBA Chair and the ZBA Commissioners if there is a “Hearing Facilitator?” Doral stated, typically the State’s Attorney advises its client on the hearing process; will the Hearing Facilitator take on this role instead of the State’s Attorney. Doral inquired if the Hearing Facilitator makes a ruling that is different from the direction of the ZBA Chair or ZBA Commissioners, is the ZBA required to follow this. Doral asked will the Hearing Facilitator only make a ruling if asked to do so by the ZBA. The section states the Hearing Facilitator has no adjudicatory responsibility but will rule on substantive matters, which will obviously influence the adjudication process. Doral is seeking clarity on how this process will operate.
Chairman Phillips stated all the fees are items could happen and the county will be reasonable on the fees and by the State statue.
A hearing facilitator, the county has a States Attorney and 2 additional attorneys for counsel or legal advice. It is highly unlikely the county will use a facilitator, likely only in the event of an emergency.
States Attorney Jochums stated this is in place for counties that only have a States Attorney and no assistant attorneys. It is possible a facilitator might be needed for a public hearing.
Chairman Phillips discussed the Hearing Facilitator language will remain in the Commercial ordinance for Wind and Solar. The applicant shall reimburse the county for all fees charged.
Member Fletcher moved to approve allowing a Hearing Facilitator remain in the ordinances with a second by Member Roberson. Motion carried by roll call vote (5-0).
5. Doral, stated the state statute includes language regarding timing for public hearings and timing for permitting decisions. Doral discussed if language could be added to ensure all matters are heard and decided in a reasonable timeframe.
Chairman Phillips stated the timing of public hearings is in the state statute and the county follows these guidelines.
6. CONDITIONAL USE PERMIT APPLICATION – Sec. C.6 requires an AIMA executed between the applicant and the Illinois Department of Agriculture be submitted as part of the conditional use permit application package. Doral may not yet be completed when they apply for the conditional use permit. It will be completed when they apply for a building permit. He asked if this requirement can be changed to have the executed AIMA be submitted prior to issuance of a building permit.
Chairman Phillips stated the AIMA agreement is part of the state statute and cannot be changed by the Zoning Board of Appeals.
7. CONDITIONAL USE PERMIT APPLICATION – Sec.C.10, C.11, and C.12 require information from the IDNR, US Fish & Wildlife, and detail of avoiding protected lands. Doral asked to clarify how the County will use these documents, and if the documents are just required for submission or will the County impose conditions as a result of these documents.
Chairman Phillips stated this is based individual per each application and is part of the state statute and how the information is used is on a case by case basis.
8. DESIGN AND INSTALLATION – Sec. D.1. Doral asked if the county can clarify where vegetative screening is required. Is it where the Facility is “visible” to a Non-Participating Resident only? How far away does Non-Participating Resident need to live? I.e., if the house is a mile away and they can see the facility, is a vegetative screen still required? Doral asked if the requirement for a vegetative screen be limited to a Non-Participating Resident within a certain distance, like 150 feet (which is a distance listed in the state statute).
9. DESIGN AND INSTALLATION – Sec. D.3 requires all power lines be buried. Doral indicated that they understand that AC lines may need to be buried, but the DC cables, which connect the solar panels and rows of solar panels, are not “collection” or “communication” lines and so should not be buried. Doral asked to confirm if the Ordinance could be revised accordingly.
Chairman Phillips stated the county will only enforce the code and nothing additional. The DC cables can remain above ground in accordance to the code.
States Attorney Jochums stated in the code, companies need to comply with the AIMA agreement from the Department of Agriculture when using power lines.
10. DESIGN AND INSTALLATION – Sec. J requires the Applicant to follow guidelines for Conservation Practices Impact Mitigation submitted by the County Soil and Water Conservation District. Doral asked to clarify what this means and what the standards are.
Chairman Phillips stated the state statue under paragraph t. covers what the standards are.
States Attorney Jochums stated in the statute there is nothing the county can do to prevent a company from going across drainage tiles etc. However, the statute states the company is responsible for replacing any tiling and making any repairs for damages the company caused.
11. DESIGN AND INSTALLATION – Sec. R.2. The County may retain a qualified, independent code inspector or professional engineer to make appropriate inspections of the facility during and after construction and to consult with the County to confirm that construction, substantial repair, replacement, repowering and/or decommissioning of the Facility is performed in compliance with applicable electrical and building codes. Doral asked if there can be a timeframe for the initial inspections to be completed. Doral asked how often after does the County anticipate inspecting and can this be limited to a “reasonable” standard.
Chairman Phillips stated depending on the project size and the complication, the county will be reasonable in initiating and hiring an Engineer or inspector to review the project.
The time frame will depend in the scope of the project.
12. OPERATION –Doral asked if Sec. A.1 requires an annual report be submitted, and could this be on a “reasonable, as-requested” basis rather than annually. Doral asked if this needs to remain annual, Developer should be entitled to cure any default on timing.
Chairman Phillips stated this will be handled when the time line is presented to the committee for review. A condition would be discussed at the time the project is presented the Zoning Board of Appeals committee. The ZBA has the ability to eliminate the report and this would be determined case by case.
13. OPERATION – Doral asked if Sec. A.s requires re-certification by an engineer if there are modifications made and do the modifications include regular maintenance. Doral asked if the regular maintenance could be exempt from these requirements.
Chairman Phillips stated modifications are not in the ordinance and regular maintenance does not require recertification. If 4,000 additional solar panels were added, this would be a modification to the project and would need to be recertified.
Member Fletcher moved to approve the operational items will be conditional use items for the permit with a second by Member Roberson. Motion carried by roll call vote (5-0).
14. OPERATION – Doral asked if Sec. B – Coordination with Emergency Responders requires significant ongoing communication with local emergency responders. Could this be on a “reasonable, as-requested” basis instead of an ongoing obligation and/or annual obligation? Doral stated the Developer should be entitled to cure any default on timing unless it presents life-safety issues.
Member Phillips stated the local volunteer fire chiefs requested training every 1 to 2 years with the solar company. The county is very reasonable with requests from the solar company regarding Emergency training for personnel.
A Member stated the solar company could meet with the local fire protection services for amendments they would like to have to the conditional use permit for emergency services.
Member Fletcher asked for the Solar and wind Ordinance document to be formatted by a number of a designation to simplify, finding materials in the document and page numbers be indicated.
Member Fletcher moved to approve adding page numbers to the Commercial Solar and Wind Ordinances with a second by Member Clark. Motion carried by roll call vote (5-0).
Member Fletcher moved to approve the amendments and the limitations to the industrial and Ag districts, adding page numbers and court recorder to the Commercial Solar and Wind Ordinances with a second by Member Roberson. Motion carried by roll call vote (5-0).
Chairman Phillips stated the amended Solar and wind Ordinances will be presented the Fulton County Board on May 9, 2023 for approval.
14. Old Business – None
15. Other – None
16. Executive Session – None
Member Fletcher moved to adjourn at 5:17pm with a second from Member Roberson. Motion carried by roll call vote