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Prior to receiving an improvement location permit and building permit under this subchapter, the county and the applicant, owner, and/or operator shall formulate a decommissioning plan outlining the anticipated means and cost of removing a WECS at the end of its serviceable life, or upon becoming a discontinued or abandoned use, to ensure that the WECS is properly decommissioned.
(A) Content. A decommissioning plan shall include, at a minimum, language to the following:
(1) Assurance. Written assurance that the WECS will be properly decommissioned upon the project life or in the event that the WECS project is abandoned;
(2) Cost estimates. The applicant shall provide a contractor cost estimate for demolition and removal of the WECS. The cost estimates shall be made by a competent party, such as a professional engineer, a contractor capable of decommissioning, or a person with suitable expertise or experience with decommissioning WECS;
(3) Financial assurance. Applicant will provide financial assurance in an amount at least equal to said demolition and removal contractor cost estimate, through the use of a bond, letter of credit, or other security acceptable to the county, for the cost of decommissioning each WECS tower and related improvements constructed under the permit. Said security will be released when each WECS Tower is properly decommissioned, as determined by the county. Review of estimate cost shall be every five years and the financial assurance will reflect changes; and
(4) Abandonment by the owner or operator. In the event of abandonment by the owner or operator, the applicant will provide an affidavit to the county representing that all easements and/or leases for WECS towers shall contain terms that provide financial assurances, including access to the salvage value of the equipment, for the property owners to ensure that the WECS towers are properly decommissioned within one year of expiration or earlier termination of the WECS project.
(B) Discontinuation and abandonment. All WECS shall be considered a discontinued use after one year without energy production, unless a plan is developed and submitted to the Planning Department outlining the steps and schedule for returning the WECS to service.
(C) Removal. An applicant’s obligations shall include removal of all physical material pertaining to the project improvements to no less than a depth of four feet below ground level within 365 days of the discontinuation or abandonment of the WECS or WECS project, and restoration of the project area to as near as practicable the condition of the site immediately before construction of such improvements. Removal obligations shall be completed by the owner, or by the county at the owner’s expense.
(D) Written notices. Prior to implementation of the existing procedures for the resolution of such default(s), the appropriate county body shall first provide written notice to the owner and/or operator, setting forth the alleged default(s). Such written notice shall provide the owner and/or operator a reasonable time period, not to exceed 60 days, for good faith negotiations to resolve the alleged defaults.
(E) Costs incurred by the county. If the county removes a WECS tower and appurtenant facilities, it may sell the salvage to defray the costs of removal. By approval, the permittee or grantor grants a license to the county to enter the property to remove a WECS tower and appurtenant facilities pursuant to the terms of an approved decommissioning plan.
(Prior Code § 153.089) (Ord. 2019-03, passed 5-7-2019)
The owner or operator of any WECS shall maintain a current general liability policy covering bodily injury and property damage, and may be required to name the county as an additional insured with dollar amount limits of at least $2,000,000 per occurrence, and $5,000,000 in the aggregate, and with a deductible of no more than $5,000. A copy of the policy and renewals will be provided to the county.
(Prior Code § 153.089) (Ord. 2019-03, passed 5-7-2019)
(A) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
DECOMMISSIONING PLAN. A decommissioning plan as prescribed in § 155.133.
F.A.A. PERMIT APPLICATION. A Federal Aviation Administration permit application.
(B) Compliance. Prior to the issuance of any improvement location permit, the following shall be submitted to and reviewed by the Planning Department, who shall certify that the following are in compliance with all applicable regulations.
(C) Economic development, drainage, and road use and maintenance agreements. An Economic development agreement, a drainage agreement, and a road use and maintenance agreement shall be approved by the Board of County Commissioners. The agreements shall be developed in conjunction with the County Economic Development office, and copies provided to the Planning Department. These agreements must be signed before any building permit is issued. The Drainage Agreement must prescribe, or reference provisions to, address crop and field tile damages up to five years after construction.
(1) Map submission. The developer shall submit a drainage location map and existing conditions report within 100 feet of tower construction and from the center of all transportation routes used. These documents must make note of all known regulated or private open and tiled drains.
(2) Construction schedules. Drainage preconstruction upgrade and post construction restoration schedule must be provided. These documents must be provided to the Board of County Commissioners 60 days prior to the project commencement.
(3) Road report. Road use and road condition report construction location must be submitted. Road preconstruction and post construction restoration schedule must be provided. These documents must be provided to the Board of County Commissioners 60 days prior to the project commencement.
(D) Erosion control plan. An erosion control plan must be developed in consultation with the Natural Resources Conservation Services (NRCS), and any stormwater quality management plan adopted by the applicable jurisdiction.
(E) Utility plan. A utility plan must drawn to the same scale as the site layout plan illustrating the location of all underground utility lines associated with the total WECS project.
(F) Avoidance and mitigation of damages to public infrastructure. In addition to complying with the approved road use and maintenance agreement, an applicant, owner, or operator proposing to use any county road(s) for the purpose of transporting any component of a commercial WECS project and/or equipment for construction, operation, or maintenance of a commercial WECS project shall comply with the following pre-construction requirements.
(1) Identification of roads and services. The applicant shall identify all roads and services, to the extent that any proposed routes that will be used for construction and maintenance purposes shall be identified. If the route includes a public road, it shall be approved by the County Highway Superintendent.
(2) Pre-construction survey. The applicant shall conduct a pre-construction baseline survey acceptable to the County Highway Superintendent to determine existing road conditions for assessing potential future damage. The survey shall include photographs, or video, or a combination thereof, and a written agreement to document the condition of the public facility.
(G) Assurance. Prior to construction the developer/company will put in place two forms of financial assurance; one repair bond, and one performance bond for road and drainage pre-construction and post construction. These must be issued and adopted by the Board of County Commissioners prior to the project commencement.
(Prior Code § 153.089) (Ord. 2019-03, passed 5-7-2019)
During construction, the applicant shall demonstrate that the following requirements are being met:
(A) Reasonable dust control measures shall be required by the county during construction of a commercial WECS project;
(B) Reasonable stormwater best management practices as required by the Soil and Water Conservation office, and in some cases with the approval of a Drainage Plan/Agreement on file with the County Surveyor; and
(C) If there is a road closure or limited access to a road, the applicant must notify and work with the Highway Superintendent.
(Prior Code § 153.089) (Ord. 2019-03, passed 5-7-2019)
Post-construction, the applicant shall comply with the following provisions.
(A) Road repairs. Any road damage caused by the construction of project equipment, the installation of the same, or the removal of the same, shall be repaired as per the road use and maintenance agreement approved by the Board of County Commissioners. The County Highway Superintendent may choose to require either remediation of road repairs upon completion of the project or is authorized to collect fees for oversized load permits. Further, a corporate surety bond, in an amount to be fixed by a professional engineer, may be required by the County Highway Superintendent to ensure the county that future repairs are completed to the satisfaction of the unit of local government. The cost of bonding is to be paid by the applicant.
(B) As-built plans requirement. Where upon completion of all development, the exact measurements of the location of utilities and structures erected during the development are necessary for public record and shall therefore be recorded. The applicant, owner, or operator shall submit a copy of the final construction plans (as-built plans), as amended, to the Planning Department with the exact measurements thereon shown. The Building Commissioner, after being satisfied that the measurements are substantially the same as indicated on the originally approved final plan(s), shall approve, date, and sign said construction plans for the project, which the applicant, owner, or operator shall then record.
(C) Change in ownership. It is the responsibility of the owner or operator listed in the application to inform the Planning Department of all changes in ownership and operation during the life of the project, including the sale or transfer of ownership or operation.
(Prior Code § 153.089) (Ord. 2019-03, passed 5-7-2019)
DEVELOPMENT PLANS
(A) Pursuant to I.C. 36-7-4-601(d)(3), no improvement location permit shall be issued for any commercial or industrial structure or use in the B-1, Convenience Business District, B-4, General Business District, I-1, Light Industrial District, I-2, General Industrial District, or RP, Riverfront Protection Overlay District, until a Development Plan has been submitted, reviewed, and approved by the Plan Commission in accordance with the following provisions.
(B) In the B-1, B-4, 1-1, and 1-2 Districts, this section does not apply to construction of any accessory structures, or construction of any additions to a principal structure which does not require additional parking according hereto.
(1) The application for approval of a proposed Development Plan shall be submitted to the Zoning Administrator, and shall be accompanied by a fee as specified by the Fee Schedule to cover the cost of review. The application shall consist of not less than two prints of each drawing submitted as part of the proposed Development Plan and any supporting documentation. The proposed Development Plan shall be drawn in accordance with standard architectural and engineering practices to clearly indicate the following:
(a) Property lines and total acreage of parcel proposed for development;
(b) All existing streets, rights-of-way, and easements related to the development;
(c) Location of existing structures, relevant natural features, and other improvements to the property which may affect the development of the site;
(d) Required front, side, and rear yard lines;
(e) Contour lines at two-foot intervals where average slope exceeds 10%;
(f) Tree masses and all individual trees having a diameter of four inches or greater;
(g) Location of proposed structures, walkways, driveways, entrances, parking facilities, loading spaces, landscaping, signs, lighting facilities, fences or walls, and other site improvements or amenities;
(h) Contours and sufficient elevations to show proposed gradings, and data to show gradient of access drives and parking facilities;
(i) Location and approximate size of utilities to serve the development;
(j) Existing zoning classification of the property;
(k) North arrow and scale; and
(1) A Drainage Plan shall be submitted according to the specifications herein providing for drainage away from structures and shall be coordinated with the general storm drainage pattern for the area. The drainage shall be designed to eliminate standing water and to prevent drainage to adjacent property or right-of-way.
(2) Upon submission of a Development Plan which meets the above criteria, the Zoning Administrator shall docket the Development Plan for Plan Commission review and approval. A public hearing is not required before the Plan Commission. However, if a variance or a special exception is necessary from the Board of Zoning Appeals for a proposal, said Board approval must be received prior to submission to the Plan Commission.
(3) Following its review, the Plan Commission may grant preliminary approval to the proposal, and such approval will authorize the applicant to proceed with the preparation of a final Development Plan.
(D) The Plan Commission shall not grant preliminary approval unless all screening, landscaping, parking, loading, outdoor storage, and all other general development standards of this chapter and the Comprehensive Plan are met. Additionally, the Plan Commission shall ensure that all utilities and drainage are properly planned for and designed. The Plan Commission may request that other interested agencies review the Plan prior to its approval.
(E) Final approval may be granted to a Development Plan by the Zoning Administrator after preliminary approval has been granted, and when any conditions which may have been attached to preliminary approval, have been met. The issuance of a certificate of occupancy shall be subject to verification by the Zoning Administrator that all requirements of approval have been carried out satisfactorily. Any development contrary to the approved Plan shall constitute a violation of this chapter.
(F) Within ten days of public hearing, the Plan Commission certifies, according to I.C. 36-7-4-608 this section, a favorable, unfavorable, or no recommendation to the Board of County Commissioners. Along with the recommendation, the Plan Commission may impose reasonable conditions. Conditions may be in the form of written commitments as allowed in I.C. 36-7-4-1015(g) and this section.
(G) Commitments shall be recorded in the office of the County Recorder and take effect upon the granting of the exception, use, or variance. Unless modified or terminated in accordance with I.C. 36-7-4-1015, a commitment is binding on the owner of the parcel, each subsequent owner, and each other person acquiring an interest in the parcel. A commitment is binding on the owner of the parcel even if it is unrecorded; however, an unrecorded commitment is binding on a subsequent owner or other person acquiring an interest in the parcel only if that subsequent owner or other person has actual notice of the commitment. A commitment may be modified or terminated only in accordance with the I.C. 36-7-4-1015 and the Plan Commission’s by-laws and rules of procedures.
(H) Pursuant to I.C. 36-7-4-1015, the Plan Commission may permit or require the owner of a parcel of property to make a written commitment concerning the use or development of that parcel as a condition of approval.
(1) The Plan Commission may adopt rules:
(a) Governing the creation, form, recording, modification, enforcement, and termination of commitments; and
(b) Designating which specially affected persons, and classes of specially affected persons, are entitled to enforce commitments.
(2) Within ten day business days after the Plan Commission’s determination, the Plan Commission shall certify the amendment to the Board of County Commissioners with a favorable recommendation, unfavorable recommendation, or no recommendation. Written commitments may be permitted or required for a zone map amendment or Planned Unit Development District Ordinance, as specified in I.C. 36-7-4-1015 and this section.
(3) (a) Commitments shall be recorded in the office of the County Recorder and take effect upon granting of the approval. Unless modified or terminated in accordance with the I.C. 36-7-4- 1015 and the Plan Commission’s by-laws, rules, and procedures, a commitment is binding on the owner of the parcel, each subsequent owner, and each other person acquiring an interest in the parcel.
(b) A commitment is binding on the owner of the parcel even is it is unrecorded; however, an unrecorded commitment is binding on a subsequent owner, or other person acquiring an interest in the parcel, only if that subsequent owner, or other person, has actual notice of the commitment.
(c) A commitment may be modified or terminated only by a decision of the Plan Commission made at a public hearing after notice, as provided by rule.
(4) By permitting or requiring a written commitment, the Plan Commission does not obligate itself to make a favorable or unfavorable recommendation.
(5) A new commitment may be made or a commitment may be modified or terminated only in accordance with the I.C. 36-7-4-1015 and the Plan Commission’s by-laws and rules of procedures.
(6) A commitment must be in substantially the form set forth in the Plan Commission by-laws and rules of procedure.
(7) The owner of the property shall be required to notify the office of the Plan Commission of his, her, or their timely compliance with such commitments by filing an affidavit to such effect. This affidavit must be submitted before any development or construction begins.
(8) Written commitments shall be enforced in accordance with I.C. 36-7-4-1015 and with this section.
(I) This section does not affect the validity of any covenant, easement, equitable servitude, or other land use restriction created in accordance with law.
(Prior Code, § 153.100) (Ord. 93-02, passed 2-1-1993, Ord. 2015-02, passed 1-19-2015) Penalty, see § 155.999
Editor’s note:
I.C. 36-7-4-613 repealed by Pub. Law No. 126, § 68, approved 5-9-2011.
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