July 12, 2018 Department Report

Department of Land Conservation and Development Oregon 635 Capitol Street NE, Suite 150 Salem, Oregon 97301-2540 Kate Brown, Governor Phone: (503) 373-0050 Fax: (503) 378-5518 www.oregon.gov/LCD

July12, 2018

TO: Land Conservation and Development Commission

FROM: Jim Rue, Director Ellen Miller, Urban Policy Analyst and Legislative Coordinator

SUBJECT: Agenda Item 6 July 26-27, 2018, LCDC Meeting

TEMPORARY RULEMAKING RELATING TO SIZE OF SOLAR AND POWER GENERATION FACILITIES ON FARMLAND

I. AGENDA ITEM SUMMARY

This agenda item is for the Land Conservation and Development Commission (LCDC or commission) to consider adoption of a temporary rule amending OAR 660-033-0130, “Minimum Standards Applicable to the Schedule of Permitted and Conditional Uses.” This rule implements Statewide Planning Goal 3, “Agricultural Land.” The purpose of the proposed amendment is to restate the original intent of the rule in regard to size of solar and other power generation facilities sited on farmland without a goal exception. The proposed amendment applies to commercial projects only. Adoption of a temporary rule amendment will not impact the schedule or the scope of the solar siting rulemaking as defined in the 2017-19 Policy Agenda.

For further information about this report, please contact Ellen Miller, Legislative Coordinator and Urban Policy Analyst at 503-934-0020, or at [email protected].

II. SUMMARY OF RECOMMENDED ACTION

The department recommends that the commission adopt temporary rule amendments to limit the siting of power generation facilities, including solar arrays, to facilities that occupy no more than 12 acres on high value farmland, 20 acres on arable farmland, and 320 acres on nonarable farmland, unless an exception is taken.

III. BACKGROUND

In 2011, LCDC adopted rule amendments regulating photovoltaic solar power generation facilities in exclusive farm use zones. The amendments included a requirement that limited photovoltaic solar power generation facilities to 12 acres on high-value farmland soils, 20 acres on arable farmland, and 320 acres on nonarable farmland. Projects larger than these thresholds require an exception to Goal 3. The amendments were adopted to discourage development on Agenda Item 6 July 26-27, 2018 – LCDC Meeting Page 2 of 5

highly productive farmland soils and to encourage their placement on lands with lower agriculture or wildlife habitat value.

At the time of adoption LCDC specifically intended the rule amendment to require a commercial solar power generation facility larger than the specified acreages to take an exception pursuant to OAR chapter 660, division 4 before land use approval could be granted. As above, LCDC intended to limit the size of solar power generation facilities that would occupy farmland – particularly high-value farmland soils – unless a specific need was demonstrated and alternatives examined through an exceptions process.

A recent Clackamas County decision construed the rule in a manner that allows solar projects to occupy more than 12 acres of high-value farmland without taking an exception, counter to LCDC’s intent. This interpretation effectively removes the commission’s intended protections for high-value farmland soils, and could be construed to similarly obviate the acreage limitations for solar and other power generation facilities on arable and non-arable farmland.

A. CLACKAMAS COUNTY HEARING OFFICER FINDINGS

In May of 2018, Clackamas County approved a 72-acre solar project permit, finding the solar facility and associated proposal of keeping about 100 honeybees colonies and cultivating “bee friendly forage” at the site will not preclude the property’s use as a commercial agricultural enterprise. The Clackamas County Hearings Officer decision, conditional use file no. Z0052-18- C, included the following statement:

“While the evidence in support of the application could be more thorough, the applicable standard is whether the proposed use would ‘preclude’ – or make impossible – use of the property for commercial agricultural enterprise. That is a relatively low bar that the applicant has relatively easily cleared.”

B. TEMPORARY RULE MAKING CRITERIA

The commission may enter into temporary rulemaking and amend a rule upon an abbreviated notice and hearing if there are findings that support:

• failure to act promptly will result in serious prejudice to the public interest, • legal authority to amend rules, and • need for the rule and intent of the rule.

In addition the commission must identify principle documents the department used as reference in preparing the rule. The primary document referenced was the Clackamas County Hearings Officer Decision (File No. Z0052-18-C) that is included as an attachment to this report.

Agenda Item 6 July 26-27, 2018 – LCDC Meeting Page 3 of 5

1. RESULTS OF TAKING NO ACTION

In Clackamas County, the commission’s intention to restrict the size of power generation facilities is no longer effectuated. Other counties may also similarly construe the commission’s rule to allow solar facilities to occupy greater than 12 acres of high-value farmland soils without taking a goal exception. The intended protections for high-value farmland soil from solar projects occupying more than 12 acres is no longer uniformly understood statewide. This could result in the use of high-value farmland soils for power generation without undertaking the analysis intended by the commission. In addition, the rule could be construed to similarly obviate the acreage limitations for solar and other power generation facilities on arable and non-arable farmland.

2. AUTHORITY TO ADOPT A TEMPORARY RULE

Statewide Planning Goal 3, “Agricultural Lands,” is: “To preserve and maintain agricultural lands.” LCDC has authority to implement the statewide goals through adoption of administrative rules. ORS 197.040.

3. STATEMENT OF NEED

The need is to prevent approval of photovoltaic solar power generation facilities that do not conform to the intent of LCDC rule. The proposed temporary rule amendment was drafted with the intent to meet the need. The temporary rule amendment would restore the regulation of solar projects greater than 12 acres on high value farmland before a significant number of applications can be made under the nonconforming interpretation. In addition, the temporary rule amendment makes similar revisions to the rules for solar and other power generation facilities on arable and non-arable farmland to assure consistency in application, as was LCDC’s intent.

IV. PROPOSED AMENDMENT

The proposed amendment to the first sentence of OAR 660-033-0130(38) shown below addresses the issue raised in the Clackamas County Hearings Officer’s decision, while the proposed amendments to subsection (17), (22), and (38) restate intent consistently throughout the rule. Proposed deletions are struck and proposed additions are bold and underscored.

OAR 660-033-0130 Minimum Standards Applicable to the Schedule of Permitted and Conditional Uses

* * * (17) Permanent features of a power generation facility shall not preclude occupy more than 12 acres from use as a commercial agricultural enterprise unless an exception is taken pursuant to ORS 197.732 and OAR chapter 660, division 4. * * *

[Ed Note: subsection (17) applies to power generation facilities on high-value farmland. See OAR 660-033-0120 table.] Agenda Item 6 July 26-27, 2018 – LCDC Meeting Page 4 of 5

(22) Permanent features of a power generation facility shall not preclude occupy more than 20 acres from use as a commercial agricultural enterprise unless an exception is taken pursuant to ORS 197.732 and OAR chapter 660, division 4. * * *

[Ed Note: subsection (22) applies to power generation facilities on all other farmland. See OAR 660-033-0120 table.]

(38)(f) For high-value farmland described at ORS 195.300(10), a photovoltaic solar power generation facility shall not preclude occupy more than 12 acres from use as a commercial agricultural enterprise unless an exception is taken pursuant to ORS 197.732 and OAR chapter 660, division 4 or the requirements of paragraph (G) are met. * * *

(38)(g) For arable lands, a photovoltaic solar power generation facility shall not preclude occupy more than 20 acres from use as a commercial agricultural enterprise unless an exception is taken pursuant to ORS 197.732 and OAR chapter 660, division 4. * * *

(38)(h) For nonarable lands, a photovoltaic solar power generation facility shall not preclude occupy more than 320 acres from use as a commercial agricultural enterprise unless an exception is taken pursuant to ORS 197.732 and OAR chapter 660, division 4. * * *

V. RECOMMENDED ACTION AND MOTION

For reasons described in this report, the department recommends that the commission approve the rule amendment as proposed.

Recommended motion: I move the commission amend OAR 660-033-0130 based on the findings and conclusions in the director’s report.

Optional approval motion: I move the commission amend OAR 660-033-0130 to: [alternative amendment].

Optional motion to reject amendment: I move the commission terminate temporary rulemaking regarding power generation facility size on farmland in OAR chapter 660, division 33.

VI. ATTACHMENTS

A. Proposed Rule Amendment

B. County Hearings Officer Decision (File No. Z0052-18-C)

Agenda Item 6 July 26-27, 2018 – LCDC Meeting Page 5 of 5

Attachment A: Proposed Rule Amendment

Proposed deletions are struck and proposed additions are bold and underscored.

OAR 660-033-0130 Minimum Standards Applicable to the Schedule of Permitted and Conditional Uses

Agenda Item 6 Attachment B

BEFORE THE LAND USE HEARINGS OFFICER OF CLACKAMAS COUNTY, OREGON

Regarding an Application for a Conditional Use ) Case File No. Permit to Establish a Seventy Acre Photovoltaic ) Z0052-18-C Solar Power Generation Facility. ) (Pacific NW Solar)

A. SUMMARY

1. The applicants are Steve Schmitt and Pacific Northwest Solar LLC. The owner is Nancy Dietrich. 2. The subject property is located on the north side of Southeast Duus Road, approximately ½ mile east of Highway 224, just north of Estacada. The legal description is T3S, R4E, Section 17, Tax Lot 105 W.M. The subject property is approximately 73 acres and is zoned EFU – Exclusive Farm Use. 3. On April 19, 2018, the Hearings Officer conducted a public hearing to receive testimony and evidence about the application. B. HEARING AND RECORD HIGHLIGHTS 1. The Hearings Officer received testimony at the public hearing about this application on April 19, 2018. All exhibits and records of testimony are filed with the Planning Division, Clackamas County Department of Transportation and Development. At the beginning of the hearing, the Hearings Officer made the declaration required by ORS 197.763. The Hearings Officer disclaimed any ex parte contacts, bias, or conflicts of interest. The Hearings Officer stated that the only relevant criteria were those identified in the staff report, that participants should direct their comments to those criteria, and failure to raise all arguments may result in waiver of arguments at subsequent appeal forums. 2. At the hearing, county planner Clay Glasgow discussed the staff report. 3. Steve Schmidt testified in support of the application. 4. Dave Johnson testified about concerns with the application. 5. At the conclusion of the public hearing, the Hearings Officer closed the record.

Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 1 C. FACTS

The subject property is an approximately 73-acre parcel zoned EFU. The property is located on the north side of Southeast Duus Road, approximately ½ mile east of Highway 224, just north of Estacada. Properties to the north, east, and west are either EFU or Forest (TBR) zones, the majority of which are at least 20 acres. To the south are properties in rural residential or EFU zones with a few properties that have annexed into the City of Estacada but have not been developed. Immediately to the east are four one-acre parcels with single family dwellings. Although there were no delineated wetlands on the property, a regulated stream traverses the southern portion of the property. Through working with the Department of State Lands (DSL), the applicant discovered that there are wetlands on the property and has worked out a mitigation plan. Largely due to the stream and soggy conditions, the property has not been used for farm use. The applicant describes the proposal as follows:

“The proposed Project will involve the construction and operation of a commercial bee apiary and a photovoltaic solar power generation facility that is expected to include up to 100 colonies of bees and produce as much as ten (10) megawatts alternating current (MWac) of renewable electric power. The bee apiary portion of the Project will be managed by an existing commercial bee keeper as part of its existing operation and the solar farm portion of the Project will be interconnected with the Portland General Electric Company’s distribution system via connection to existing power lines located adjacent to the Project. The Project infrastructure will include bee boxes for colony habitat and nuclear boxes for colony growth and solar arrays on steel racking, consisting of photovoltaic modules oriented toward the south (generally) and placed upon a single-axis tracking system, inverters (to allow for transmission to the utility grid), connections to the existing power lines, as well as necessary access and safety features (including access roads, perimeter roads, and fencing).” Applicant’s Narrative 1. The applicant proposes to seed the areas under the solar arrays with native grasses and also to plant a mix of vegetation specifically designed as forage for the bees in other areas. The application anticipates the apiary will produce $75,000 in annual sales. Although it is not relevant to the present application, the applicant previously applied for an exception to Goal 3 (Agricultural Lands) to develop the solar power generation facility without the currently proposed apiary. That application was approved and subsequently appealed to the

Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 2 Land Use Board of Appeals (LUBA). LUBA’s decision has been postponed due to the fact that a similar case from Jackson County is currently pending at the Court of Appeals. D. DISCUSSION The staff report does a thorough job of addressing most of the approval criteria. Most of the findings in the staff report are not disputed. It would be a waste of the County’s money and resources to review and repeat all of the undisputed findings in the staff report. I have reviewed the findings in the staff report and agree with those findings. Therefore, I adopt and incorporate the findings in the staff report in this decision except as discussed further. The staff report states that further discussion is required regarding compliance with Clackamas County Zoning and Development Ordinance (ZDO) Section 704, regarding Stream and Conservation Areas. As discussed earlier, although there were no prior identified wetlands on the property, the applicant discovered that there are indeed wetlands on the property. The applicant is working with DSL to provide mitigation. The application includes a 50 foot buffer from the regulated stream. Along with complying with DSL requirements, the buffer ensures compliance with ZDO Section 704. 1. OAR 660-033-0130(38)(f) Oregon Administrative Rule 660 Division 33 contains provisions specific to photovoltaic solar generation facilities. These provisions are made applicable to the application through the conditional use criteria in EFU Zone Table 401-1. While there are a multitude of applicable rules in Division 33, the only rule at issue in this case is OAR 660-033-0130(38)(f), which provides:

“For high-value farmland described at ORS 195.300(10), a photovoltaic solar power generation facility shall not preclude more than 12 acres from use as a commercial agricultural enterprise unless an exception is taken pursuant to ORS 197.732 and OAR chapter 660, division 4.” (Emphasis added.) As the staff report explains, approximately 64 acres are Class 3 soils and approximately 7 acres are Class 4 soil, which means that approximately 90% of the soils on the property are considered high-value under ORS 195.200(10). Even though the property is not used for agricultural purposes, it is still considered high-value farmland because it is composed predominantly of high-value soils. Therefore, the application

Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 3 cannot be approved if it precludes more than 12 acres from use as a commercial agricultural enterprise. a. Whether the proposed apiary is a farm use for the whole property. As discussed earlier, the applicant proposes to install solar panel arrays over 70 acres of the property. The applicant proposes to have 100 bee colonies located in a 120 by 60 foot area. The applicant proposes to plant low growing, shade resistant native plants under the solar arrays and specific bee-friendly forage in other areas of the property. The applicant proposes that the bees would use both the native plants under the solar arrays and the other bee-friendly plants as forage. There does not seem to be any dispute that an apiary is a farm use.1 Opponents initially argue that even if an apiary is a farm use that the areas under the solar panel arrays would not be part of the farm use and therefore more than 12 acres would be precluded from being used as a farm use or commercial agricultural enterprise.2 The application and the applicant’s April 18, 2018 memorandum clearly state that the areas under the solar panel arrays would be used for forage.3 The applicant also provided documentation of other solar power facilities that use the areas under the arrays for bee forage. I agree with the staff report that the installation of solar panel arrays does not prevent the areas underneath the solar panel arrays from being used as part of the apiary:

“Arguments that photovoltaic modules prevent farm use do not hold up. Yes, large scale farm equipment is mostly unavailable once the modules are in place. But if the use of plows, combines, etc define farm use than we would need to disallow livestock, orchards, vineyards and any number of uses that do not involve such. There are other types of farm

1 ORS 215.2013 defines “farm use” to include, among other things: “the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur-bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof.” (Emphasis added.) 2 Opponents include a joint appearance by the Department of Land Conservation and Development (DLCD) and the Oregon Department of Agriculture (ODA), 1000 Friends of Oregon (1000 Friends), and the Oregon Farm Bureau (OFB). The arguments from 1000 Friends and OFB largely mirror the arguments made by DLCD/ODA. 3 Exhibit 8 of the application – the Commercial Bee Apiary Management Plan states that the “commercial bee apiary will utilize the full 72 acres of the Project site for foraging habitat for the bees. * * * the seeded vegetation * * * will supplement the existing vegetation on the subject property in order to provide sufficient food sources for the on-site apiary.” The April 18, 2018 memorandum states that apiary “will also include foraging on plants maintained not only in open spaces on the property but also underneath the panels * * *.” Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 4 use, including apiaries, that are not prevented. * * * “Bees are a valid farm use, one might even say an important farm use what with the positive downstream impacts on other agricultural activities in the area, and are called out specifically in ORS 215 as a valid farm use. “Based on abundant information to the contrary staff believes the argument that solar facilities preclude an apiary would be flawed. Apiary is a farm use therefore photovoltaic solar power facilities do not preclude farm use.” Staff Report 27-28. Opponents also argue that areas used for the installation of the solar panel arrays and roads may preclude more than 12 acres from use as a farm use or commercial agricultural enterprise. The applicant persuasively explained that the poles that hold up the solar panels arrays take up very little space – they are just poles not large concrete slabs. The applicant further persuasively explains that even including the poles, roads, and pads for the inverters that the total area that would deemed non-usable for forage would be less than one acre. The Commercial Bee Apiary Management Plan, the site plan, and the applicant’s testimony persuasively demonstrate that the total area of the property that could not be used for the apiary is nowhere near 12 acres. The proposed apiary is a farm use that would not preclude more than 12 acres of the property from farm use. b. Whether the proposed apiary is a commercial agricultural enterprise. The applicant must not only establish that the proposed apiary is a farm use. The applicant must also establish that the proposed apiary would not “preclude more than 12 acres from use as a commercial agricultural enterprise.” The initial inquiry is what does it mean to “preclude” land from a certain use. “Preclude” is defined as “to make impossible, esp. in advance; shut out; prevent.” Webster’s New World Dictionary, Second College Edition 1120. “To make impossible” is consistent with the definition of “preclude” and the common understanding of the word. “To make impossible” sets a very high bar. To make something impossible does not mean that it is difficult or unlikely – it means that it cannot be done. Thus, the question is whether the proposed photovoltaic use would make use of the property as a commercial agricultural enterprise impossible.4

4 The applicant argues that the inquiry is really whether any hypothetical use could result in not precluding more than 12 acres for use as a commercial agricultural enterprise rather than whether the specific proposed Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 5 OAR 660-033-0020(2) defines “Commercial Agricultural Enterprise” as:

“’(a) Commercial Agricultural Enterprise’ consists of farm operations that will: “(A) Contribute in a substantial way to the area’s existing agricultural economy; and “(B) Help maintain agricultural processors and established farm markets. “(b) When determining whether a farm is part of the commercial agricultural enterprise, not only what is produced, but how much and how it is marketed shall be considered. These are important factors because of the intent of Goal 3 to maintain the agricultural economy of the state.” Initially, opponents argue that the primary intended use of the property is for solar power generation and that the proposed apiary is merely a secondary use. That is almost certainly true. That is also irrelevant. Opponents provide no bass for denying the application on the grounds that the proposed apiary is not the primary intended use of the property. There is nothing in the administrative rule that even implies, let alone requires, any analysis regarding the intended primary use of the property. 1000 Friends also argues that a proposed commercial agricultural enterprise is not sufficient to comply with the administrative rule. According to 1000 Friends, the apiary must be established first, and only after the apiary is established and operating profitably could the photovoltaic solar facility use be approved.5 Again, 1000 Friends points to nothing in the administrative rule that would require the commercial agricultural enterprise to be established prior to the photovoltaic solar facility use. If anything, as discussed earlier, it may not even be necessary to ever establish the commercial agricultural enterprise. There is certainly

use would preclude more than 12 acres for such use. The applicant also argues that the hypothetical use does not even have to be established, the mere fact that it could be established is enough to comply with OAR 660-033-0130(38)(f). Even if the applicant is correct, the applicant acknowledged that the proposed use is the most intense apiary that could be sustained by the property and that the proposed use would be part of the proposed conditional use. A condition of approval may be imposed to require the apiary be operated and maintained. In other words, the proposed apiary is the best case scenario for whether the property could be used for the proposed photovoltaic use and still not preclude more than 12 acres for use as a commercial agricultural enterprise. As the proposal represents the applicant’s best case scenario and the apiary would be required as part of the conditional use permit, I need not and do not consider applicant’s arguments. 5 In the alternative, 1000 Friends argues the County could condition approval of the photovoltaic solar facility use on the apiary being constructed and operating profitably before the solar panels arrays could be installed. Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 6 nothing in the rule that prohibits an applicant from establishing both uses at the same time, as proposed in the present case. Opponents’ arguments provide no basis for denying the application. The parties all treat the question of whether the proposed apiary would constitute a commercial agricultural enterprise as essentially a question of how much money the apiary would generate.6 As discussed later, the applicant estimates that the proposed apiary would generate approximately $75,000 in income while DLCD/ODA estimates only around $12,500. The parties take the position that the crux question is whether the amount of income the proposed apiary would generate is substantial enough to qualify as a commercial agricultural enterprise. I am not entirely sure that the parties are correct in their interpretation of “commercial agricultural enterprise.” The phrase “commercial agricultural enterprise” has often been used in determining appropriate minimum lot sizes on agricultural lands. For example, OAR 660-033-0100(2) provides direction for when minimum lot sizes of under 80 acres may be appropriate on EFU lands.7 As OAR 660-033-0100 and cases involving

6 Although opponents mention the language of OAR 660-033-0130(38)(f) regarding the area’s agricultural economy, processors, and markets they do not advance any arguments on these issues. 7 OAR 660-033-0100 provides:

“(2) A county may adopt a minimum parcel size lower than that described in section (1) of this rule by demonstrating to the Commission that it can do so while continuing to meet the requirements of ORS 215.243 and that parcel sizes below the 80 or 160 acre minimum sizes are appropriate to maintain the existing commercial agricultural enterprise within an area. This standard is intended to prevent division of farmland into parcels that are too small to contribute to commercial agriculture in an area. This standard does not require that every new parcel created be as large as existing farms or ranches in an area. The minimum parcel size may allow creation of parcels smaller than the size of existing farms or ranches. However, the minimum parcel size shall be large enough to keep commercial farms and ranches in the area successful and not contribute to their decline. Lots or parcels used, or to be used, for training or stabling facilities shall not be considered appropriate to maintain the existing commercial agricultural enterprise in any area where other types of agriculture occur.

“(a) To determine a minimum parcel size under this section, the county shall complete the following steps:

“(A) Identify different agricultural areas within the county, if any;

“(B) Determine the nature of the commercial agricultural enterprise in the county, or within areas of the county;

“(C) Identify the type(s) and size(s) of farms or ranches that comprise this commercial agricultural enterprise; and

Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 7 “commercial agricultural enterprises” discuss, a “commercial agricultural enterprise” is generally more than one individual property, rather it is a type of agricultural product’s economy in the county or area. See Still v. Marion County, 22 Or LUBA 331 (1991) (Still I); Still v. Marion County, 32 Or LUBA 40 (1996) (Still II) (the commercial agricultural enterprise was the commercial vineyard economy in the area not the vineyards on the subject property); Friends of Linn County v. Linn County, 54 Or LUBA 191 (2007) (three commercial agricultural enterprises were involved: holly production, woodlot, and hay production – the commercial agricultural enterprises were the economies of holly, woodlots, and hay in the area not on the subject property). Although those cases involved earlier versions of the administrative rules, almost identical language to OAR 660-033- 0020(2)(a) was involved. Furthermore, the language of the current rule also suggests that a commercial agricultural enterprise generally involves more than one property. OAR 660-

“(D) Determine the minimum size for new parcels that will maintain this commercial agricultural enterprise.

“(b) To determine whether there are distinct agricultural areas in a county, the county should consider soils, topography and land forms, land use patterns, farm sizes, ranch sizes and field sizes, acreage devoted to principal crops, and grazing areas and accepted farming practices for the principal crops and types of livestock.

“(c) To determine the nature of the existing commercial agricultural enterprise within an area, a county shall identify the following characteristics of farms and ranches in the area: Type and size of farms and ranches, size of fields or other parts, acreage devoted to principal crops, the relative contribution of the different types and sizes of farms and ranches to the county's gross farm sales, and their contribution to local processors and established farm markets. The following sources may assist in a county's analysis: The most recent Census of Agriculture and special tabulations from the census developed by Oregon State University, the Oregon Department of Agriculture, the United States Department of Agriculture's Agricultural Stabilization and Conservation Service (AACS), Soil and Water Conservation Districts, the Oregon State University Extension Service and the county assessor’s office.

“(d) To determine the minimum parcel size, a county shall evaluate available data and choose a size that maintains the existing commercial agricultural enterprise within the county or within each area of the county. In areas where the size of commercial farms and ranches is mixed, and the size of parcels needed to maintain those commercial farms and ranches varies, the county shall not choose a minimum parcel size that allows larger farms, lots or parcels to be divided to the size of the smallest farms, lots or parcels in the area. The activities of the larger as well as smaller holdings must be maintained.” (Emphases added.)

Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 8 033-0020(a) provides that a commercial agricultural enterprise “consists of farm operations * * *.” (Emphasis added.) While the plural of operations might be ambiguous in OAR 660-033-0020(2)(a), OAR 660-033-0020(2)(b) specifically provides “[W]hen determining whether a farm is part of the commercial agricultural enterprise * * *.” It certainly seems like a commercial agricultural enterprise is generally more than just one farm. In any event, I will address the parties’ arguments regarding the projected income of the proposed apiary.8 The applicant argues that the proposed apiary would generate approximately $75,000 per year, while opponents argue the proposed apiary would only generate approximately $12,500.9 The applicant bases this projection on income derived from honey, leasing for pollination, and queen and nucleus bee sales. The applicant projects approximately $75 per year per colony from honey sales, $320 per year per colony in pollination leasing, and $360 per year per colony in bee nucleus sales. Opponents argue that while the $75 per year colony for honey is accurate that only $50 per year per colony would be generated from pollination leasing. Opponents do not address the applicant’s projections regarding queen bee and nucleus sales. The parties agree that the proposed apiary would generate $75 per year per colony from honey sales. While opponents are correct that according to the USDA statistics that the average amount per year per colony for pollination leasing is $50 – that is just for each individual crop not a specific colony. Bee colonies are not restricted to one type of crop per year. As the applicant projects, the bee colonies could be transported to pollinate a number of different crops that require pollination at different times of the year. I agree with the applicant that the proposed apiary could be used to pollinate multiple crops in a year.10

8 Perhaps the parties are merely cutting to the chase and arguing about whether the proposed apiary would be part of the existing commercial agricultural enterprise. Presumably, if DLCD believed the rule should be interpreted differently it would have said so since it wrote the rule. 9 Opponents argue that a commercial agricultural enterprise must “serve, or can serve, as the backbone of the local agricultural economy.” That exaggerates the requirement of OAR 660-033-0020(2). Contributing in a substantial way to the area’s existing agricultural economy and helping maintain agricultural processors and established farm markets is hardly the same thing as serving as the backbone of the local agricultural economy. 10 Although opponents’ argument is difficult to follow, they appear to argue that if the bees are transported off site for pollination leasing then the property would no longer be used for farm use or as use a commercial agricultural enterprise. This argument is without merit. As the applicant explains, other operations DLCD clearly considers to be commercial agricultural operations have seasonal or even yearly non-farm periods. Farmers often plow under a field and allow it lay fallow. Cattle herders will often rotate herds between fields. Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 9 The applicant anticipates generating $50 per year per colony for pear pollination, which is actually five or six dollars below what is shown on the USDA statistics. The applicant also anticipates generating $190 per year per colony from almond pollination and $80 per year per colony from other miscellaneous crops. Opponents have provided no evidence that those estimates are inaccurate. While the applicant’s evidence is hardly overwhelming, it is the only evidence in the record. Opponents also do not attempt to refute the applicant’s estimates regarding queen bee and nucleus sales. Again, while the applicant’s evidence is hardly overwhelming, it is the only evidence in the record. While opponents argue that the applicant’s projection of $75,000 annual income per year is inflated, their argument ignores most of the applicant’s projections. There is no persuasive argument that the applicant could not use the proposed apiary to pollinate multiple crops. There is no argument at all that queen bee and nucleus sales would not generate what the applicant projects. While the applicant’s evidence is not voluminous, it more than outweighs the scant evidence presented by opponents. Furthermore, even if the applicant’s projections are optimistic, the evidence certainly establishes that the proposed apiary would almost certainly generate substantially more than estimated by opponents. For instance, even if the proposed apiary only generated half of what the applicant estimates, that would easily exceed the $10,000 per year threshold for a commercial farm set by ODA.11 Although the ODA threshold for commercial farms is not the same thing as establishing commercial agricultural enterprise, it is at least some evidence that a farm contributes to the local agricultural economy. Finally, the question under OAR 660-033- 0130(38)(f) is whether the proposed use would “preclude” use of the property as a commercial agricultural enterprise. The applicant has established that is almost certain that the proposed apiary would generate substantially more than opponents suggest. Given the scant evidence provided by opponents, even if it is not certain or even especially likely that the proposed apiary would generate $75,000 in income, I certainly cannot say that it is

The forage for the proposed apiary would still be growing on the subject property and awaiting the return of the bees. The transporting of bees off site for pollination leasing hardly precludes the use of the property for commercial agricultural enterprise. 11 Opponents state that the National Honey Board and the University of California do not consider 100 colonies to be a commercial apiary. I agree with the applicant that without any further argument that these apparently conflicting and unexplained statistics do not mean the proposed apiary cannot satisfy OAR 660- 033-0130(38)(f). Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 10 impossible that the applicant’s projections are correct. Given that the applicant has established that the proposed apiary is not precluded from generating the anticipated income, the question is whether this meets the definition of commercial agricultural enterprise under OAR 660-033-0020. OAR 660-033- 0130(2)(a)(A&B) requires that the farm operation will “[c]ontribute in a substantial way to the area’s existing agricultural economy” and “[h]elp maintain agricultural processors and established farm markets.” The applicant explains that the proposed apiary would contribute in a substantial way to the area’s existing agricultural economy not only by producing honey, but more importantly by providing pollination and queen bee and nucleus services. While other types of agricultural products such as single crops like corn, wheat, or grass seed might be able to contribute to the area’s existing agricultural economy without necessarily helping to maintain agricultural processors and established farm markets, an apiary is almost uniquely positioned to both at the same time. As the staff report explains, apiaries are critical to the agricultural economy:

“Staff believes there is enough information in the record to state that an apiary would help maintain agricultural processors and established farm markets. In fact it can be argued that perhaps the single most important component of agriculture is the pollinators. Also, an apiary would surely contribute to the area’s agricultural economy.” Staff Report 28. I agree with the staff report that the proposed apiary would clearly help maintain agricultural processors and established farm markets. Due to the unique nature of apiaries, the proposed apiary would also contribute to the area’s existing agricultural economy. Although the staff report questioned whether the contested revenue projections were sufficient to rise to the level of commercial agricultural enterprise, as explained earlier the evidence demonstrates that it is not impossible that the proposed apiary would generate the anticipated revenues.12 Opponents also appear to argue that the proposed use does not comply with Goal 3. There is nothing, however, in any of the applicable approval criteria that require compliance with Goal 3. While OAR 660-03-0020(2)(b) states that “the intent of Goal 3 is to maintain the agricultural economy of the state[,]” that only explains why the factors of

12 Furthermore, the applicant submitted additional evidence after the staff report was written. Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 11 how much the potential commercial agricultural enterprise would produce and how it would be marketed must be considered. There is no independent requirement to demonstrate compliance with Goal 3. The applicant explained how much income the proposed apiary would produce and explained that the honey, pollination services, and queen bee and nucleus sales would be marketed to the local agricultural community. Due to the nature of the proposed uses, more marketing would occur than in single crop production. Opponents’ Goal 3 argument does not provide a basis to deny the application. In conclusion, the applicant has established that it is not impossible that the proposed apiary would contribute in a substantial way to the area’s existing agricultural economy. Opponents have not meaningfully refuted the applicant’s projections for income. Even if income is less than the projected amount, the proposed apiary seems more likely than not to produce significant amounts of income that would still constitute contributing in a substantial way to the area’s existing agricultural economy. The applicant has also established that an apiary would be of particular help in maintaining agricultural processors and established farm markets through, among other things, pollination leasing. While the evidence in support of the application could be more thorough, the applicable standard is whether the proposed use would “preclude” – or make impossible – use of the property for commercial agricultural enterprise. That is a relatively low bar that the applicant has relatively easily cleared. Opponents appear to be ensorcelled by the idea that an apiary can serve as a stalking horse for a solar power facility, but there is nothing in any of the applicable approval criteria that require the apiary to be the primary or dominant use of the property. While I do not see that it has anything to do with any applicable approval criteria, opponents argue that the property could be used for some other type of farm use that opponents appear to believe would be more beneficial. Again, not that it has anything to do with the applicable approval criteria, but the property has not been used for farm use, is not currently being used for farm use, and absent this proposal would likely not be used for farm use. Using the property for renewable energy and a needed farm use such as an apiary would seem to be a win-win scenario. All of the applicable approval criteria are satisfied.

Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 12 E. DECISION Based on the findings, discussion and conclusions provided or incorporated herein and the public record in this case, the Hearings Officer hereby APPROVES application Z0052-18-C, with the following conditions of approval. F. CONDITIONS OF APPROVAL I. General Conditions:

1) Approval of this land use permit is based on the submitted written narrative, supplemental narrative and plan(s) submitted on January 29, 2018. No work shall occur under this permit other than that which is specified within these documents. It shall be the responsibility of the property owner(s) to comply with this document(s) and the limitation of approval described herein.

2) The applicant is advised to take part in a Post Land Use Transition meeting. County staff would like to offer you an opportunity to meet and discuss this decision and the conditions of approval necessary to finalize the project. The purpose of the meeting is to ensure you understand all the conditions and to identify other permits necessary to complete the project. If you like to take advantage of this meeting please contact Deana Mulder, at (503) 742-4710 or at [email protected].

3) Prior to the issuance of building permits, the applicant shall submit a statement of use to Wendi Coryell in the Clackamas County Development Agency. Wendi Coryell can be contacted at 503-742-4657, or [email protected]. The statement of use is used to calculate the Transportation System Development charge. A Transportation System Development Charge (TSDC) is included in the final calculation of the building permit fees for new instructional projects; this includes additions and tenant improvements that increase the number of daily trips to the site.

4) The conditional use approval is valid for four years from the date of the final written decision. If the County’s final written decision is appealed, the approval period shall commence on the date of the final appellate decision. During this four year period, the approval shall be implemented, or the approval will become void. “Implemented” means all major development permits shall be obtained and maintained for the approved conditional use, or if no major development permits are required to complete the development contemplated by the approved conditional use, “implemented” means all other necessary County development permits (e.g. grading permit, building permit for an accessory structure) shall be obtained and maintained. A “major development permit” is:

a) A building permit for a new primary structure that was part of the conditional use approval; or b) A permit issued by the County Engineering Division for parking lot or road improvements required by the conditional use approval.

Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 13 5) This Conditional Use approval is granted subject to the above and below stated conditions. Failure to comply with any of the conditions of approval constitutes a violation of this permit and may be cause for revocation of this approval.

6) The approval of the application granted by this decision concerns only the applicable criteria for this decision. The decision does not include any conclusions by the county concerning whether the activities allowed will or will not come in conflict with the provisions of the federal Endangered Species Act (ESA). This decision should not be construed to or represented to authorize any activity that will conflict with or violate the ESA. It is the applicant, in coordination if necessary with the federal agencies responsibility for the administration and enforcement of the ESA, who must ensure that the approved activities are designed, constructed, operated and maintained in a manner that complies with the ESA.

II. Planning and Zoning Conditions: Clay Glasgow, (503) 742-4520, [email protected]

1) Development of the subject property is subject to the provisions of ZDO Sec.1203 and those other relevant codes and ordinances adopted by the Board of County Commissioners pursuant to subsec. 1001.03 of the ZDO, including, but not limited to, the County Roadway Standards, County Excavation and Grading Ordinance, and Oregon Structural Specialty Code, etc.

2) Prior to commencement of use the project owner shall sign and record in the deed records for the county a document binding the project owner and the project owner's successors in interest, prohibiting them from pursuing a claim for relief or cause of action alleging injury from farming or forest practices as defined in ORS 30.930(2).

3) At the end of the life of facility all non-utility owned equipment, conduits, structures, and foundations will be removed to a depth of at least three feet below grade.

4) Construction or maintenance activities will not result in unnecessary soil compaction that reduces the productivity of soil for crop production. This provision may be satisfied by the submittal and county approval of a plan prepared by an adequately qualified individual, showing how unnecessary soil compaction will be avoided or remedied in a timely manner through deep soil de- compaction or other appropriate practice.

5) The presence of a photovoltaic solar power generation facility will not result in unnecessary soil erosion or loss that could limit agricultural productivity on the subject property. This provision may be satisfied by the submittal and county approval of a soil and erosion control plan prepared by an adequately qualified individual, showing how unnecessary soil erosion will be avoided or remedied and how topsoil will be stripped, stockpiled and clearly marked.

Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 14 6) Construction or maintenance activities will not result in the unabated introduction or spread of noxious weeds and other undesirable weed species.

7) The applicant will operate the proposed apiary as described in the applicant’s narrative.

III. Building Code Division Conditions: Richard Carlson, (503) 742-4769, [email protected]

1) All construction activities, and all changes of use (occupancy type), shall comply with applicable Oregon Specialty Codes and local ordinances. All such codes and ordinances apply to all such activities, even when permits and inspections are not required.

2) Compliance with the following conditions is required prior to the commencement of any new use or occupancy: a. All necessary development permits (septic, building, electrical, grading, driveways, etc.) for the property, facility, and associated buildings shall be obtained. b. The plans must meet the minimum structural integrity and life safety requirements of the applicable Oregon Specialty Codes. c. Any additional information required by the Building Codes Division, such as engineering, details, and specifications, must be provided to the Plans Examiner reviewing the project. d. All necessary permits and approved plans must be issued and maintained onsite as required. e. All required inspections, corrections, and final approval must be obtained.

IV Engineering Division Conditions: Chris Hass, (503) 742-4707, [email protected]

1) All frontage and onsite improvements shall be in compliance with Clackamas County Roadway Standards. 2) The applicant shall obtain a Development Permit from Clackamas County Department of Transportation and Development prior to the initiation of any construction activities associated with the project. 3) The applicant shall design and construct one minimum 20-foot wide paved driveway approach to Duus Road in conformance with Roadway Standards Drawing D500. The driveway approach shall be constructed at a location where the minimum required intersection sight distances are feasible to achieve and maintain both easterly and westerly. Storm water runoff shall not be permitted to flow over the paved driveway approach onto Duus Road. 4) If the applicant chooses to gate the driveway approach, the applicant shall design and construct the gate a minimum of 20 feet from the northerly edge of pavement

Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 15 and the gate shall either swing back into the property, away from Duus Road, or shall slide parallel to Duus Road. 5) The applicant shall design and construct a 20-foot wide access road approximately as shown on the submitted revised preliminary site plan. Turn and curve radii shall comply with local Fire District requirements which require a minimum 28-foot inside radius and a minimum 48-foot outside radius for a 20-foot wide road. The access road shall comply with ZDO subsection 1015.03 C and Roadway Standards Drawing R100 in regards to structural section and the required surfacing with screened gravel or better. 6) The applicant shall provide a copy of the storm water management plan details to DTD Engineering. The storm water management plan shall comply with the requirements found in Zoning and Development Ordinance Section 1008 and Roadway Standards chapter four. 7) The applicant shall provide adequate on site circulation areas for the parking and maneuvering of all vehicles anticipated to use the parking and maneuvering areas. Parking layout geometry shall be in accordance with ZDO Table 1015-1 and Figure 1015-1. 8) Parking spaces shall meet ZDO section 1015 dimensional requirements. 9) The applicant shall provide and maintain adequate intersection sight distances for the driveway approach intersection with Duus Road in accordance with Roadway Standards section 240. Minimum intersection sight distances for the site driveway approach shall be 665 feet both easterly and westerly. In addition, no plantings at maturity, retaining walls, embankments, fences or any other objects shall be allowed to obstruct minimum sight distance requirements. The applicant shall provide a plan and profile sight distance exhibit for the site driveway approach intersection with Duus Road. The exhibit shall be based on survey data. If a sight line easement is required over the property to the east, the applicant shall obtain the easement prior to the issuance of a Development Permit. 10) Applicant shall comply with County Roadway Standards clear zone requirements in accordance with Roadway Standards section 245. The minimum clear zone shall extend 15 feet from the northerly edge of pavement of Duus Road. 11) Prior to the issuance of a building permit or the initiation of any construction activities associated with the project, the applicant shall submit to Clackamas County Engineering Office: a) Written approval from the local Fire District for the planned access, circulation, fire lanes and water source supply. The approval shall be in the form of site and utility plans stamped and signed by the Fire Marshal. b) A set of site improvement construction plans, for review, in conformance with Clackamas County Roadway Standards Section 140, to Clackamas County's Engineering Office and obtain written approval, in the form of a Development Permit.

Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 16 i) The permit will be for driveway, drainage, parking and maneuvering areas, and other site improvements. ii) The fee for the Development Permit will be calculated in accordance with the current fee structure existing at the time of the Development Permit application. iii) The applicant shall have an Engineer, registered in the state of Oregon, design and stamp construction plans for all required improvements, or provide alternative plans acceptable to the Engineering Division. V. Septic & Onsite Wastewater Systems Programs Conditions: Aaron Dennis, (503) 742-4614, [email protected] No comments received as of this staff report.

VI. Estacada Fire District #69:

No comments received as of this staff report.

VII. Fire Department Apparatus Access

1) Provide address numbering that is clearly visible from the fire apparatus access response road.

2) The inside turning radius and outside turning radius for a 20’ wide road shall be not less than 28 feet and 48 feet respectively, measured from the same center point.

DATED this15th day of May, 2018.

'-{Li)~ Fred Wilson Clackomos County Hearings Officer

ENDANGERED SPECIES ACT NOTICE

The federal Endangered Species Act (ESA) is not a criterion for approval of this application. The County has reviewed the approval standards in light of the requirements of the ESA, believes that the criteria for approval are consistent with the terms of the ESA and has submitted the Development Ordinances for consideration for a "4(d)" programmatic limitation. However, the analysis included in this decision does not include

Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 17 an evaluation by the County of the applications for consistency with the ESA nor does the decision reach any conclusions concerning that federal law. The applicant are responsible for designing, constructing, operating and maintaining the activities allowed by an approval of this application in a manner that ensures compliance with the ESA. Any question concerning this issue should be directed to the applicant, their consultants and the federal agencies responsible for administration and enforcement of the ESA for the affected species.

APPEAL RIGHTS

ZDO 1307.10(F) provides that, with the exception of an application for an Interpretation, the Land Use Hearings Officer’s decision constitutes the County’s final decision for purposes of any appeal to the Land Use Board of Appeals (LUBA). State law and associated administrative rules promulgated by LUBA prescribe the period within which any appeal must be filed and the manner in which such an appeal must be commenced. Presently, ORS 197.830(9) requires that any appeal to LUBA “shall be filed not later than 21 days after the date the decision sought to be reviewed becomes final.” This decision will be “final” for purposes of a LUBA appeal as of the date of mailing (which date appears on the last page herein).

Hearings Officer Final Order Z0052-18-C Pacific NW Solar CUP Page 18 Agenda Item Attachment B

DEPT OF JUN 2 1 2018 Department of Agriculture 635 Capitol St NE I..AND CONSERVATION Salem, OR 97301-2532 AND DEVELOPMENT Jerry Lidz, Chair Oregon Land Conservation and Development Commission 635 Capitol Street N.E. Salem, Oregon 97301

Dear Chair Lidz:

The Oregon Board of Agriculture met in Hood River June 5-7, 2018. The issue of the siting energy transmission and generation facilities on agricultural lands presented itself at several times during the meeting. The Board considered and adopted a resolution that addresses their position on the siting of energy transmission and generation facilities on agricultural lands. A copy of this resolution is attached. The issues addressed in this resolution have been discussed by the Board and its land use subcommittee quite a while.

The Board also heard from several parties during the course of the meeting about their concerns about the siting of solar generation facilities on agricultural lands. These included:

1. Recent decisions by local government that include interpretations of LCDC rules that allow for the by-pass the exceptions process. This includes a decision that found that a solar facility did not preclude agricultural from production because pollinator habitat and an associated apiary would be developed between the rows of solar panels. The Departments of Agriculture and Land Conservation and Development filed joint comments expressing shared interpretation and concerns.

Since this decision has been made public, there is knowledge of applications being made in other parts of the state based on the same "farm use" interpretation.

2. The number of approved and pending applications on highly productive agricultural in the Willamette Valley, southern and central Oregon.

3. The independent actions by two Willamette Valley counties to preclude the siting of solar generation facilities on EFU lands while they initiate amendments to their zoning codes to better address such siting's.

4. The need to address the situation as soon as possible. Jerry Lidz, Chair June 19, 2018 Page 2

As you may recall, the Board of Agriculture has already asked that the Land Conservation and Development Commission (LCDC) initiate an analysis and rulemaking related to the siting of solar energy generation facilities on lands designated exclusive farm use. We are aware that the LCDC has committed to initiating a rulemaking process in September of 2019. After listening to comments from the public and the Board discussion related to the adoption of the attached resolution, the Board unanimously voted to request that the LCDC initiate emergency rulemaking to address this situation as soon as possible.

The Board of Agriculture is concerned that in light of the current situation described above, that a September timeline to start a process is not responsive to the situation currently at hand. The Board of Agriculture believes that a narrowly focused amendment to the current rules that would clarify the regulatory intent of the LCDC by addressing the "loopholes" which are being used to bypass the intended planning process and avoid consideration of the cumulative impacts to agricultural lands and operations merits immediate action by the LCDC. A more comprehensive analysis and response could follow later.

Thank you for giving our request your full consideration and attention.

Respectfully, ~~~~ Barbara Boyer Chair

Enclosure

Cc: BOA Members Jason Miner, Natural Resources Policy Manager, Office of the Governor Oregon State Board of Agriculture Resolution

Title: Siting of energy transmission and generation facilities on agricultural land

Sub-Committee: Land Use Number: New Effective date: June 2018

Chair: Barbara Boyer Signature on file

Background

WHEREAS, the State Board of Agriculture has heard from the agricultural community about concerns related to the location and development of power transmission facilities through agricultural lands, including underground and above ground transmission lines and land intensive generation facilities on highly productive agricultural lands.

WHEREAS, energy produced from renewable sources is an important part of the future for our state and nation.

WHEREAS agriculture is both land and soil dependent, while the siting of energy related facilities does not require soils with a high capability for agricultural production.

WHEREAS, deliberations regarding designation and treatment of agricultural lands under the statewide land use planning program have included consideration of actions that designate or treat differently lands zoned exclusive farm use based solely on soil quality without accounting for other factors that are conducive to the production of high-value agricultural products, including livestock.

WHEREAS numerous applications to develop solar energy generation have been or are under review throughout the state, but especially in the Willamette Valley on highly productive agricultural lands. This has led several counties to amend or consider amending their land use codes to limit beyond state law the siting of solar energy generation on agricultural lands.

WHEREAS the existing state "exceptions process" provides for the consideration and location of land uses otherwise not permitted when reasons merit

WHEREAS, the State Board of Agriculture has been contacted by the State Soil and Water Conservation Commission regarding concerns it has related to the increased development of agricultural la nds by solar energy generation facilities. In response to the letter from the Soil and Water Conservation Commission the Board discussed issues related to the siting of solar energy generation facilities on productive farmland and expressed several concerns related to location on productive agricultural lands. The discussion by the Board resulted in a written request to the Land Conservation and Development Commission (LCDC) asking that LCDC initiate an evaluation of the current administrative rules related the siting of solar facilities on lands zoned exclusive farm use.

Resolution number: New Page 1 of 2 Resolution title: Siting of energy transmission and generation facilities on agricultural land Resolution

Be it resolved that the Oregon State Board of Agriculture is concerned about the conversion of high-value and productive farmland and the implications to ongoing and future agricultural operations by energy facility development on lands zoned exclusive farm use.

The Board:

1. Recognizes that energy produced from renewable sources is an important part of the future for our state and nation. We support developing renewable energy facilities at appropriate locations. 2. Recommends an evaluation by the Land Conservation and Development Commission of existing administrative rules related to the siting of energy facilities on land zoned exclusive farm use. 3. Supports establishing review criteria to evaluate not only the individual impact of proposed energy development on agricultural lands, but also the cumulative impacts of existing and potent ial similar nonfarm land use on agricultural operations. 4. Supports the evaluation of the impacts of proposed linear energy transmission facilities on agricultural operations that focuses on individual segments of a linear facility that are comprised of similar agricultural characteristics. 5. Supports better definition of highly productive farmland (instead of "high-value farmland") based on multiple factors such as soils, crop types, operational characteristics, and developed agricultural infrastructure. 6. Supports land use regulations that afford greater protection for highly productive farmland including, land use requirements that preclude the location of energy facilities on highly productive or less valuable farmland when otherwise reasonable alternatives exist. 7. Supports evaluation and reconsideration of existing land use regulation that promotes serial development of energy facilities to skirt other more stringent review standards.

Resolution number: New Page 2 of 2 Resolution title: Siting of energy transmission and generation facilities on agricultural land