Approve Docket SUA-11-13A (Noble), an appeal of Planning and Zoning Commission's January 11, 2012 approval of Docket SU-11-13 (Rainbow Solar Facility).

MEMORANDUM

TO: Cochise County Board of Supervisors
FROM: Beverly Wilson, Senior Planner
For: Carlos De La Torre, Director of Community Development
SUBJECT: Docket SU-11-13A (Appeal of Rainbow Solar Facility)
DATE: March 1, 2012 for the March 13, 2012 Meeting

I. APPEAL OF PLANNING COMMISSION APPROVAL OF A SPECIAL USE
Docket SUA-11-13A (Rainbow Solar Facility Appeal): On January 11, 2012, the Planning and Zoning Commission (Commission) authorized a Special Use for a 20 mega-watt (MW) Solar Energy Power Plant using photovoltaic (PV) technology, per Section 607.50 of the Zoning Regulations. The Appellant seeks to overturn the Commission approval, by appealing Docket SU-11-13 to the Board of Supervisors.

The parcel that is the subject of the Commission decision and subsequent appeal (Parcel No. 407-01-005) is located approximately 1-mile East of North Central Highway, approximately 1 1/4-miles North of Highway 80, West of Douglas, AZ. Richard Noble is the Appellant.

II. PLANNING AND ZONING COMMISSION
On January 11, 2012, the Commission held a public hearing concerning the Special Use request. The Commission heard arguments from the Applicant (Mr. Fields – via telephone), his Engineer, David Bohn of Kinetix Engineering and Consulting, the Appellant and other neighbors. The issues under discussion included off-site impacts from future stormwater and the conceptual drainage and grading plans. These concept plans were discussed from both a regulatory and a policy standpoint.
The Commission approved the request with a 3 – 2 vote, and imposed the following conditions recommended by staff, most notable in Condition #1 – that the Applicant would submit a revised site plan in conformance with all site development standards. The Conditions follow:
1. Within thirty (30) days of approval of the Special Use, the Applicant shall provide the County a signed Acceptance of Conditions form and a Waiver of Claims form arising from ARS Section 12-1134. The Applicant shall apply for a building/use permit for the project within one (1) year of approval, such application to include a completed joint permit application and a revised site plan in conformance with all site development standards except those waived below. A permit must be issued within three (3) years of Special Use authorization, and if the Applicant does not demonstrate substantial construction progress on the project within one (1) year from the date of permit issuance, the Special Use authorization shall be considered for revocation at a public hearing before the Commission, or may be deemed void upon 30-day notification to the Applicant.

2. It is the Applicant’s responsibility to obtain any additional permits, or meet any additional conditions, that may be applicable to the proposed use pursuant to other federal, state, or local laws or regulations;
3. Any changes to the approved Special Use (including any change to the solar energy power plant technology to be deployed) shall be subject to review by the Planning Department and may require additional modification and approval by the Commission; and
4. Prior to permit issuance, a legal means of access for the proposed solar power facility must be obtained.

III. SPECIAL USE REQUEST AND BACKGROUND
The Applicant, Rainbow Solar Energy, LLC, is proposing to construct and operate a solar power electric generating facility using PV technology combined with electronic Direct Current (DC) to Alternate Current (AC) power conditioning equipment (inverters) to produce three-phase, 60 Hz, utility-grade electric power. A site plan was submitted showing the grid-type layout that this facility will require. Each grid is composed of a series of PV modules, mounted on steel support structures that are anchored to or driven into the ground. The PV modules are connected to an inverter, which in turn is connected to an underground electric line which conducts the electricity into the plant’s switchyard. There, the electricity produced will be ‘stepped-up’ to 12kv of electricity through transformers and sent via overhead power lines along the southern property boundary to the existing Arizona Public Service (APS) San Pedro substation, located approximately 1 mile west and ½ mile south of this site (see photo below). The proposed project must be approved by Arizona Public Service which will also approve the Interconnect Agreement, required by the Zoning Regulations prior to commercial permitting. The Applicant has indicated that they are about halfway through the process of obtaining the necessary permissions and documents required from Arizona Public Service.

The Arizona Corporation Commission set a goal to develop these types of alternative energy power plants to provide 15% of Arizona’s energy needs by the year 2025. The criteria for these large-scale solar power plants includes large contiguous areas of flat or nearly flat land; compatible zoning; an absence of sensitive resources such as high-quality habitat for sensitive or protected species; and a close proximity to existing electrical substations and transmission infrastructure. The subject parcel meets these criteria and lies in a rural area of southeastern Cochise County.

The Applicant notes that this PV project will provide electric power to the grid during daylight hours, from shortly after sunrise until shortly before sunset. Solar power generation peaks later in the morning, and a small amount of power is generated even during overcast conditions. The facility’s ability to generate power is also dependent upon the ambient air temperature. The efficiency of the solar modules is reduced somewhat by higher temperatures; while conversely, the lower ambient temperatures produce higher efficiencies and, therefore, higher power output.

The Applicant estimates that construction of the solar power plant will involve up to 50 workers, and may begin near the end of 2012. While the project is anticipated to be completed within one year, an Interconnect Agreement with Arizona Public Service may take longer. Per the Cochise County Zoning Regulations, this agreement must be obtained prior to issuance of a commercial permit. In light of this, Staff is recommending in Condition #1 that the typical deadline for permit issuance be extended from 18 months to three (3) years. Construction will also include the necessary infrastructure to support the power plant, including access roads, transmission lines, and a common service area which will consist of the plant switchyard, an operations and maintenance building, and onsite parking. During the construction period, a water truck will be utilized to minimize dust.

After the initial construction is completed, the Applicant anticipates 2 – 3 employees will be necessary to maintain the site and perform routine cleaning. During the development of this facility, no groundwater use is anticipated. Future groundwater use is unclear from this Application.

IV. NATURE OF APPEAL

The Appeal offers the Appellant’s reasons for bringing this matter for consideration by the Board (See Attachment A – Appeal Form). The Appellant’s principle concern for opposing this project is based on the issues of the potential impact to his adjoining property when the existing native conditions and the natural rainfall/runoff flow are altered during and post construction. New on-site conditions will be created by the construction and installation of the new impervious surfaces of the solar panels as well as the grading and vegetation removal of the site. The concept drainage and grading plan submitted by Kinetix Engineering and Consulting proposes to change the natural drainage by diverting all existing and newly created stormwater runoff to the northeast corner of the site into a detention/retention basin. Staff’s decision to recommend approval of this Special Use was based on lengthy discussion with the Applicant to inform him of the requirement for a new site plan to be submitted with the Commercial Permit application. The new plan would be required to address and resolve the drainage issues prior to the approval of the Commercial Permit and the ensuing construction.

Mr. Richard Noble appeared before the Commission and expressed his concern over the conceptual site plan and the potential impact of stormwater to the animal holding pens on his property. These pens are used during the summer monsoon season as birthing pens for the rare gazelles that he raises on this adjoining parcel, located directly north of the subject parcel. His appeal reflects the same concern as he states “We appeal this ruling because it grants total unreviewable and final authority to the developer and staff members on an issue vital to the continued use of our farms. If the decision is allowed to stand we will have no way to obtain a hearing on whatever future drainage plan they decide to implement. The ruling also prevents any further review by the planning commission or the board of supervisors.”

On February 22, 2012, Mr. Noble contacted Staff and expressed his willingness to reach a compromise prior to the Appeal hearing before the Board. He also relayed his specific concerns about the potential off-site impacts to his property from the solar project. Staff agreed to review the docket and initiate a dialogue with the Applicant in an attempt to reach a possible solution. This effort resulted in the attached letter from Staff, dated February 29, 2012 (see Attachment D), which outlined five specific conditions for mitigation of potential off-site impacts which could result from the construction of the solar facility. They are:

1. Land Clearing Plans - If this project is phased, the phasing and land clearing plans must be approved prior to commercial permit issuance to accurately address potential drainage issues.

2. Retain Natural Drainage Patterns - The grading and drainage design submitted with the commercial permit application will address the existing runoff and natural drainage pattern from east to west and will ensure those drainage flow patterns to the east remain intact. The proposed boundary roads will be redesigned with the natural topography to allow this flow pattern to continue.

3. Basin Perspective - The new grading and drainage design will address the runoff increase created by the grading of virgin ground and the creation of more impervious surface area. Possible design solutions include relocating or adding additional retention/detention basins along the eastern and northern boundaries to prevent flooding of adjacent properties. These basins must be maintained by the owner into perpetuity to preserve capacity.

4. All cleared areas of the site (except drainage basins) must be revegetated by approved hydro-seeding/mulching after the installation and construction work is completed (or as phased). The area surrounding the proposed buildings will still be covered with 2” of gravel, as agreed.

5. Develop and implement creative drainage solutions that would mitigate and address the increased runoff resulting from the increase of impervious surface area by constructing on-site infiltration wells and/or trenches, spreader dikes or other combination of treatments. These measures are intended to reduce the increased runoff resulting from the proposed development as well as to ensure that the natural drainage patterns are retained after development in accordance with the Cochise County, Floodplain Regulations.

The Applicant, Mr. Josh Fields representing Rainbow Solar Energy, has agreed to meet these conditions, as well as other conditions normally required at the time of Commercial Permit review and approval. It is important to note, that these conditions would have been met prior to issuance of a Commercial permit, via the Conditions for Approval of Docket SU-11-13.

Unfortunately, Mr. Noble responded with a new demand, which would have been impossible for the Applicant to meet, and furthermore, is not required under the Cochise County Zoning Regulations (See Attachment E).

V. STAFF ANALYSIS

Authorization for a Special Use, per the Cochise County Zoning Regulations, allows the regulations certain flexibility for certain types of uses in each zoning district. In the RU-4 (Rural, one dwelling per four acres) Zoning District, Solar Energy Power Plants are allowed in Category D areas only, due to the large amount of space needed for installation of adequate solar panels to create a profitable venture. The Special Use application process is clearly delineated in Article 17 of the Zoning Regulations and states in Section 1716.03C, which states:

“C. The Applicant for a special use permit shall file an application for a special use on a form provided by the Zoning Inspector, a Citizen Review Report in accordance with Section 2203, the required fee as provided for in the adopted Planning and Zoning Fee Schedule, and a concept plan. The concept plan shall be submitted and reviewed by the Commission as a means to determine whether the special use request will able to meet the essential site development standards set forth in these Regulations. Note: Any anticipated waivers of the site development standards, such as setbacks, screening, etc., must be requested, justified and approved by the Commission prior to building permit issuance. The Concept Plan, at a minimum, shall include:

1. The type(s) of use(s) planned for the site is specified.
2. The general location, size and height of all structures, location, surface and width of driveways, general location and number of parking spaces, setbacks, proposed screening and landscaping and any significant topographical features such as washes, wetlands, cultural, archaeological or historical sites, hills, and rock outcroppings.
3. Project phasing.
4. Other information deemed necessary to effectively review the special use.”

The Planning Department analyzed this request based on the submitted concept plan and recommended approval to the Commission, with conditions (See Attachment B).

Staff analysis of this Docket, and of Special Use proposals in general, is based on the following broad categories:

1. Policy and Regulatory Conformance: the extent to which the use would be in keeping with the Zoning Regulations, the Comprehensive Plan and, where applicable, Area Plan policies;

2. Off-Site Impact Mitigation: anticipated or demonstrated off-site impacts associated with the use, with recommended approval conditions intended to address such impacts; and

3. Public Input: feedback from members of the public, the concerns of whom may also result in the recommendation of approval conditions intended to mitigate neighbor concerns.

The Special Use Factors in Section 1716 of the Zoning Regulations provide staff with a template for analysis based on the above categories. For example, Factors A and B determine the extent to which a project conforms with the purpose statements for the applicable Zoning District, as well as to the applicable Comprehensive Plan or Area Plan policies. Factors C, D, and E analyze the proposal in terms of transportation policies as set forth in the Comprehensive Plan. Factor G deals with public input in particular, while Factor I is concerned with mitigation of off-site impacts. Analysis of a Special Use proposal through these factors usually results in staff recommending conditions of approval intended to mitigate off-site impacts, bring the use into conformance with applicable policies, or to allay the concerns of neighbors.

Docket SU-11-13 complied with all seven of the applicable factors, with the conditions shown above and approved by the Commission.

VI. SUMMARY AND CONCLUSIONS

Factors in Favor of Upholding the Commission’s Decision (Denying the Appeal)

1. On January 11, 2012, the Commission voted (3 – 2) to conditionally approve the Special Use;

2. With the recommended conditions, the Solar Power Plant would comply with each of the seven applicable Special Use evaluation factors (See Attachment B);

3. The Zoning District, Comprehensive Plan and Area Plan policies applicable to the property all support solar power facilities;

4. This type of land use is considered comparatively low-impact, one that can integrate with neighboring rural-residential uses provided the Applicant complies with Staff’s recommended conditions.

5. The Commission imposed a condition (#1) requiring the Applicant to mitigate all off-site impacts through the submittal of a new site plan, to ensure the health, safety, and welfare of neighboring rural-residential parcels to the greatest extent possible; and

6. The Cochise County Zoning Regulations were applied to the analysis of this request through the concept plan submitted; and

7. Two neighbors have expressed support for the project from within the 1,500-foot notification area.

Factors in Favor of Granting the Appeal

1. There appear to be no factors in favor of overturning the Commission’s January 11, 2012 decision.

VIII. RECOMMENDATION
Based on the factors in favor of approval, staff recommends the Board of Supervisors uphold the Commission’s ruling on Docket SU-11-31, and deny the Appeal.

VIII. ATTACHMENTS
A. Appeal Form and Supporting Documents
B. Commission Staff Memo
C. Conceptual Site Plan
D. Staff Proposed Conditions (dated 2.29.12)
E. Noble response (3.1.12)

Provide an As You Are Aware letter to the Applicant permitting Rainbow Solar Facilty to apply for a Commercial Permit.

If the Board upholds the Planning and Zoning Commission Decision, the Applicant could apply for a commercial permit to construct and operate the proposed Solar Facility.  If the Board upholds the Appeal of the decision, the facility will not be constructed.

There will be no documents provided.