7. Discussion on Development Code section regulating solar farms and community solar gardensjt,t,,�,N
4
SCANDILA
Staff Report
Date of Meeting: August 2, 2017
To: City Council
From: Neil Soltis, Administrator
Re: Solar ordinance
Background: Based on recent community solar garden applications the issue has been raised as to whether
additional solar gardens should be permitted in Scandia, what areas within the City should be community solar
gardens be allowed, and whether the standards contained in the development code are sufficient.
In 2016 the City approved an interim ordinance placing a 3 -month moratorium on applications. The following
changes were made to the ordinance that was initially approved in 2015
• Clarified when the use is permitted in the Agriculture Preserves District.
• Removed the requirement for a 600 -foot setback from wildlife areas and the National Wild and Scenic Riverway,
and replaced this item with a new item in the Performance Standards [Section (4) (C)) that requires mitigation to
protect the values of these special management areas.
• Added a requirement that the vertical sketch show the proposed project's relationship to surrounding
topography and public roadways as well as to adjacent structures.
• Eliminated the minimum parcel requirement and relying on the setback requirements to govern the size of
parcel needed to accommodate a solar farm or community solar garden.
• Established a minimum 75' setback from all parcel boundaries, with options for wider setbacks if warranted by
impacts to adjacent properties.
• Added an option for the City to require a vegetative buffer up to 25' in depth or screening up to 95% of the view
of the array from adjacent parcels, and a requirement that the screening be achieved within 2 growing seasons.
• Added a performance standard for use of wildlife -friendly fencing when fencing is included in the project.
Issue: Should a second interim ordinance placing a moratorium on community solar gardens be drafted? What
issues are to be studied?
Proposal Details: Minnesota Statutes 462.355, Subdivision 4 permits the City to establish an interim ordinance while
the City is conducting studies that may lead to an amendment of the comprehensive plan or official controls, such as the
Development Code. The interim ordinance may regulate, restrict, or prohibit any use, development, or subdivision
within the City or a portion of the city for a period not to exceed one year from the date it is effective. State statutes
allow the City to adopt an interim ordnance if it is "conducting studies or has authorized a study to be conducted... for
the purpose of considering adoption or amendment of a comprehensive plan or official controls." The interim ordinance
needs to authorize the study that will be completed, identify a time period for the moratorium, and describe the specific
restrictions and area affected.
RELEVANT LINKS:
League of Minnesota Cities Information Memo: 1/20/2015
Zoning Guide for Cities Page 39
Both are changed or are amended frequently, making it imperative that
cities remain abreast of current developments in the law and, with the
assistance of legal counsel, amend their zoning ordinances accordingly.
Any city that has adopted a zoning ordinance should regularly review it to
make sure it is consistent with current law. In addition, cities should also
review their ordinances to make sure they are consistent with past staff and
council interpretation and to make sure they are consistent with the city's
comprehensive plan.
Finally, the zoning ordinance should be reviewed to ensure that it is
consistent with the city council's current goals and visions for the
community. Changes in the city's economic situation, population changes
and surges in development interest may quickly make a zoning ordinance
outdated with current city realities. Regulations that are inconsistent with
what the staff and council see as the future of the community can only
cause conflicts when particular applications have to be evaluated.
1. Interim Ordinances (Moratoria)
Minn. stat. § 462.355, subd.
Adoption of an interim ordinance (more commonly known as a
4.
Pawn America Minnesota,
moratorium) may aid cities in the zoning ordinance amendment process,
LLC v. city ofSt Louis Park,
787 N.W.2d 565 (Minn.
by allowing a city to study an issue without the pressure of time generated
2010.
by pending applications. Cities may use a moratorium to protect the
planning process, particularly when formal studies may be needed on a
particular issue. Cities must follow the procedures established in state
statute to initiate a moratorium.
a. Procedure for interim ordinance adoption
Minn. stat. § 462.355, subd.
Cities must initiate a moratorium by adopting an ordinance (interim
4(a).
ordinance). The interim ordinance may regulate, restrict, or prohibit any
use, development, or subdivision within the city or a portion of the city for
a period not to exceed one year from the effective date of the ordinance.
An interim ordinance may only be adopted where the city:
• Is conducting studies on the issue.
• Has authorized a study to be conducted.
• Has held or scheduled a hearing for the purpose of considering
adoption or amendment of a comprehensive plan or other official
controls, including the zoning code, subdivision controls, site plan
regulations, sanitary codes, building codes and official maps.
• Has annexed new territory into the city for which plans or controls
have not been adopted.
The legal justification for the interim ordinance should be stated in the
findings of fact when the ordinance is adopted.
League of Minnesota Cities Information Memo: 1/20/2015
Zoning Guide for Cities Page 39
RELEVANT LINKS:
Minn. stat. § 462.355, subd. No notice or hearing is generally necessary before an interim ordinance is
4(b).
Duncanson v. Board of enacted. However, a public hearing must be held if the proposed interim
Supervisors of Danville Tp., ordinance regulates, restricts or prohibits livestock production (feedlots).
551 N.W.2d 248 (Minn. Ct.
App. 1996). In such case, the notice of the hearing must be published at least ten days
prior to the hearing in a newspaper of general circulation in the city.
b. Procedure for interim ordinance extension
Minn. stat. § 462.355, subd. An interim ordinance may be extended only in limited circumstances if the
4(c).
procedures of state statute are followed. An interim ordinance may be
extended if the city holds a public hearing and adopts findings of fact
stating that additional time is needed to:
Minn. stat. § 462.355, subd. • Complete and adopt a comprehensive plan in cities that did not have
4(c)(3).
comprehensive plan in place when the interim ordinance was adopted.
This allows an extension for an additional year.
Minn. stat. § 462.355, subd. • Obtain final approval or review by a federal, state, or metropolitan
4(c) (1).
agency of the proposed amendment to the city's official controls, when
such approval is required by law and the review or approval has not
been completed and received by the municipality at least 30 days
before the expiration of the interim ordinance. This allows an
extension for an additional 120 days.
Minn. stat. § 462.355, subd. . Complete "any other process" required by a state statute, federal law,
4(c) (2).
or court order and when the process has not been completed at least 30
days before the expiration of the interim ordinance. This allows an
extension for an additional 120 days.
Minn. stat. § 462.355, subd. . Review an area that is affected by a city's master plan for a municipal
4(c).
airport. This allows for an additional period of 18 months.
The required public hearing must be held at least 15 days but not more
than 30 days before the expiration of the interim ordinance, and notice of
the hearing must be published at least ten days before the hearing.
c. Applicability
Minn. stat. § 462.355, subd. An interim ordinance or moratorium may not delay or prohibit a
4(c).
Semler Const., Inc. v. City of subdivision that has been given preliminary approval, nor extend the time
Hanover, 667 N.W.2d 457 for action under the 60 -day rule with respect to any application filed prior
(Minn. App. 2003). to the effective date of the interim ordinance.
Woodbury Place Partners v. According to the Minnesota Court of Appeals, the use of an interim
Woodbury, 492 N.W.2d 258
(Minn. Ct. App. 1993). ordinance prohibiting or limiting use of land is generally not compensable
Tahoe -Sierra Pres. Council, if there is a valid purpose for the interim regulation. In evaluating whether
Inc. v. Tahoe Reg'l Planning
Agency, 535 U.S. 302, 122 an interim ordinance is a temporary taking in the nature of a regulatory
S. Ct. 1465 (2002). taking, courts will look to the parcel as whole.
League of Minnesota Cities Information Memo: 1/20/2015
Zoning Guide for Cities Page 40
RELEVANT LINKS:
League of Minnesota Cities Information Memo: 1/20/2015
Zoning Guide for Cities Page 41
There is no bright -line rule for regulatory takings; rather, they must be
evaluated on a case-by-case basis.
VI. Zoning ordinance enforcement
The Municipal Planning Act authorizes cities to enforce their zoning
A.G. Op. 477b-34 (July 29,
ordinance through criminal penalties. In addition, civil remedies, such as
1991).
an injunction, are available to cities to cure on-going violations. The
Minnesota Attorney General has ruled that it is a general duty of a city to
enforce its zoning ordinance and that a city cannot refuse to enforce
zoning requirements by ignoring illegal land uses. In enforcing city
ordinances, however, a city must be aware that certain landowners may
have specific rights as existing non -conformities; if their non -conforming
use pre -dated the city's zoning regulation.
A. Legal nonconformities predating the adoption
of the zoning ordinance
1. Legal nonconformities
Minn. stat. § 462.357, subd.
Legal nonconformities are legal uses, structures, or lots that predate
le.
current zoning regulations and thus do not comply with the current zoning
.rake's, Ltd., Inc. v. City of
ordinance. In most cases, nonconformities cannot be amortized or phased
Coates, 284 F.3d 884 (8th
Cir. 2002).
out. A municipality must not enact, amend or enforce an ordinance that
eliminates a use which use was lawful at the time of its inception. Similar
Minn. stat. § 462.357, subd.
Id.
protections do not exist for nonconformities that were not lawful, or
prohibited by state law or city ordinance, at the time of their inception.
This prohibition also does not apply to adults -only bookstores, adults -only
theaters or similar adults -only businesses, as defined by ordinance. Nor
does it prohibit a municipality from enforcing an ordinance providing for
the prevention or abatement of nuisances, or eliminating a use determined
to be a public nuisance.
SLS P'shlp v. City of Apple
Legal nonconformities are those uses, structures or lots that legally existed
Valley, 511 N.W.2d 738
(Minn. 1994).
prior to the creation of the zoning district and, in recognition of the
Halla Nursery v.
landowner's property rights, are allowed to continue even though they are
Chanhassen, 763 NW 2d 42
(Minn. St. App. 2009).
now illegal. Besides being allowed to remain in effect, legal
nonconformities also escape requirements subsequently enacted, such as
setback requirements. The state statute on legal nonconformities
supersedes any conflicting language in a zoning ordinance.
Minn. stat. § 462.357, subd.
while legal nonconformities must be allowed to continue, a zoning
le.
ordinance may prohibit them from being expanded, extended or rebuilt in
certain situations.
League of Minnesota Cities Information Memo: 1/20/2015
Zoning Guide for Cities Page 41