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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