Item #1 County Variance 268 –Tax ID# X00416 Tax ID X00417, Monica Plecker, Planning Division Manager, presenting. – An appeal of an administrative decision to grant a Zoning Compliance Permit for a Solar Photo – Voltaic Facility on property legally described as S08, T01N, R25E and S10, T01N, R25E, consisting of 369 zoned acres of land generally located at 3916 Alkali Creek Road.
 

Staff recommends the Board affirm in whole the administrative interpretation of Sec. 27-305 as it applies solar photo-voltaic facilities as an allowable use for properties zoned Agricultural Open Space.

OWNER: DNRC
AGENT: MT Sun, LLC
LEGAL DESCRIPTION: S08, T01N, R25E and S10, T01N, R25E
ADDRESS: 3916 Alkali Creek Road
CURRENT ZONING: A-1, Agricultural Open
EXISTING LAND USE: Vacant, Grazing
PROPOSED USE: Solar Photo-Voltaic Facility
SIZE OF PARCEL: 396 zoned acres

 There are no concurrent planning applications for the lands described above.

NORTH S08, T01N, R25E : NORTH S10, T01N, R25E:	Zoning: Unzoned Land Use: Ag land, Grazing, Residential Zoning: Ag Open Land Use: Ag land, Grazing
SOUTH S08, T01N, R25E : SOUTH S10, T01N, R25E:	Zoning: Ag Open Land Use: Residential Zoning: PUD Land Use: Residential
EAST S08, T01N, R25E : EAST S10, T01N, R25E:	Zoning: Ag Open Land Use: Residential Zoning: Ag Open Land Use: Ag land, Grazing
WEST S08, T01N, R25E : WEST S10, T01N, R25E:	Zoning: Unzoned Land Use: Agricultural Zoning: Ag Open Land Use: Residential

On February 11, 2017, MT Sun L.L.C. requested a zoning compliance permit from the City-County Planning Division.  Exhibit 1 – Application.  MT Sun wanted to place solar panels on approximately 369 acres within the County’s Zoning Jurisdiction.  There are additional panels proposed for lands outside of the zoning jurisdiction. The land within the County’s zoning jurisdiction is owned by the State of Montana.  Because the land is owned by the State, the County cannot force the State to comply with its zoning regulations.  The State can decide it does not want to comply with the County’s zoning regulations.  The State has to request an exemption from the County’s zoning regulations to use land contrary to zoning. MCA 76-2-401 and 76-2-402 requires the Agency to give notice to the Board of Adjustment. Within 30 days, a hearing shall be held by the board, though the board shall have no power to deny the proposed use but shall act only to allow a public forum for comment on the proposed use.
 
On February 14, 2017, the Division granted the permit.  Exhibit 2 – Permit.  The Division found that MT Sun’s proposed solar panels complied with the Agricultural Open zoning designation of the land.  The Division did not find a special review was required for the proposed solar panels.  The Division did not provide the permit to anyone other than MT Sun.  No one had requested a copy of the permit.
 
On May 5, 2017, Karen Kosiarek requested a copy of the permit.  Exhibit 3 – Request for Public Records.  Kosiarek owns land that abuts MT Sun’s proposed solar project. On May 5, 2017, the Division provided Kosiarek with a copy of the permit.  
 
On May 12, 2017, Kosiarek requested the decision of the Division to grant a permit to MT Sun be appealed to the Yellowstone County Board of Adjustment.  Exhibit 4 – Appeal Letter.  Kosiarek explained why she believed MT Sun’s proposed solar project did not comply with the Agricultural Open zoning designation of the land and requested the Division initiate a special review process for the solar project.
 
On June 2, 2017, Wyeth Friday, the Director of the Planning and Community Services Department, advised Kosiarek that her appeal of the City-County Planning Division’s decision to the Board was not timely.  Exhibit 5 – Appeal Response Letter.  Friday explained why the Division believed MT Sun’s proposed solar project did comply with the Agricultural Open zoning designation of the land and that even if the solar project did not comply that the State could ignore the County’s zoning regulations as state statute allows public lands to be used for uses contrary to zoning.
 
On July 24, 2017, Andy Adamek, an attorney who represents Kosiarek, advised the Board of Kosiarek’s position on the situation. Further requesting an appeal to the County Board of Adjustment. Exhibit 6 – Board Letter.
 
On September 8, 2017 the Board set a hearing for October 12, 2017, on Kosiarek’s appeal from the Division’s decision to grant MT Sun a zoning compliance permit.  The Board provided notice of the hearing to Kosiarek, Kosiarek’s attorney, MT DNRC and MT Sun.  Exhibit 7 – Notice of Hearing.
 
The appeal presents two issues: (1) did Kosiarek timely file her notice of appeal and (2) did the Planning Division correctly interpret the zoning regulations when it determined that MT Sun’s proposed solar project was an allowed use that did not require a special review on land designated as Agricultural Open?

The below findings do not relate to the timeframe for appeal or applicable codes, but only to whether the proposed use of a photo voltaic solar farm is allowable in the A-1 zoning district

1. Section 27-305 states that Utilities (Public Service Installations), Stations Only, are allowable.  
   According to the zoning code “Utility, public” is defined as “A private business organization performing some public service and subject to special governmental regulations or a governmental agency performing similar public services, the services by either of which are paid for directly by the recipients thereof. Such services shall include, but are not limited to, water supply, electric power, gas and transportation for persons and freight.”
2. Utilities are an allowed use on land zoned Agricultural Open.  Section 27-305 of the Yellowstone County Zoning Regulations.  A special review is not required for utilities on land zoned as Agricultural Open.  Utilities are defined in Section 27-200 of the Yellowstone County Zoning Regulations. The State’s land at issue is zoned Agricultural Open.  The proposed solar panels on the State’s land are utilities.  The solar panels would produce electricity.  The solar panels on the State’s land are an allowed use. 
3. Storage areas are only an allowed use on land zoned Agricultural Open with a special review. Section 27-305 of the Yellowstone County Zoning Regulations. The Yellowstone County Zoning Regulations do not define storage area.  The general definition of a storage area is found in The Illustrated Book of Development Definitions. “Outdoor Storage: The keeping, in an unenclosed area, of any goods, junk material, merchandise, or vehicles in the same place for more than 24 hours.” 
   The State’s land at issue is zoned Agricultural Open.  The proposed solar panels on the State’s land are not items being stored.  The solar panels would be items used to produce electricity.  The solar panels on the State’s land are not a use that requires a special review.
4. Agency’s interpretation of its regulations should be given deference.  McGee v. State , Dep't of Pub. Health & Human Servs., 2017 MT 166, ¶ 12, 388 Mont. 129, 132, 398 P.3d 245, 247 (2017).  Only if its interpretation is plainly inconsistent with the spirit of the regulation or lies outside the range of reasonable interpretation should deference be denied to the agency’s interpretation.   
   The Planning Divisions’s interpretation of Yellowstone County’s Zoning Regulations that solar panels are an allowed use on land zoned Agricultural Open is not plainly inconsistent with the spirit of the Regulations and lies within the range of reasonable interpretation permitted by the wording of the Regulations. 

The Planning Division has determined the term Photo Voltaic facility to appropriately fit the zoning code definition of a Utility. Specifically, the definition says, “A private business organization performing some public service and subject to special governmental regulations or a governmental agency performing similar public services, the services by either of which are paid for directly by the recipients thereof. Such services shall include, but are not limited to, water supply, electric power, gas and transportation for persons and freight.”

The request from MT Sun LLC for use of a solar power generation facility substantially meets the definition provided by the zoning code and what is identified as an allowable use according to Section 27-305.

The Planning Division requests the County Board of Adjustment affirm in whole the staff’s interpretation of the code requirements.