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 * * * (17)