Kimley-Horn Solar Series: Navigating Local Solar Entitlements

This transcript was generated by computer recognition software. Although largely accurate, please excuse any unanticipated grammatical, syntax, homophone, and other interpretive errors that may have been inadvertently transcribed.

Jamie Weist: 

All right. Well, good afternoon. For all of you who are not on the west coast, good morning to the rest of you. And welcome to Kimley-Horn second webinar series. This one’s called navigating local entitlements, and my name is Jamie Weist. I’ll be your moderator for the next hour. As we talk about this important topic, as it relates to you still be scale solar development across our great nation, and we’ve got four or three other panelists with me today, we’ve got Katherine Ross from Parker Poe get David striker from Polsinelli and we’ve got our very own Chris Jones from Kimley-Horn. And so I’m going to let each one of them introduce themselves, starting with Katherine, a little brief introduction before we jump into some of the topics that we want to talk about today, Katherine. Great. Thanks Jamie. And such a pleasure to be here with you and with everyone on the web. 

Katherine Ross: 

I’m Katherine Ross, I’m with Parker Poe Adams and Bernstein. I sit in our Raleigh North Carolina office. I lead our renewable energy team and our energy and environment practice group. I’ve practiced for over a decade and pretty much all of that has been in the renewable energy space. I like to say I grew up with solar across the Southeast as a lawyer. And so it’s been a fun ride and we focus on the Carolinas and the whole Southeast. So Georgia, Alabama, Mississippi, Tennessee, I won’t argue with Virginia Southeast or not our bricks and mortar, our DC through Atlanta. But of course our, our footprint that we work in is greater than that. Thrilled to be here. And thank you again, Jamie David sure, good afternoon everybody or good morning if you’re on the west coast. My name is David striker. 

David Streiker: 

I’m with the Polsinelli law firm. I’m a shareholder here on the energy team based in Chicago but work on projects really across the country, but I’m primarily as lead development council in the Midwest. Sorta like Katherine, I, I grew up with wind and, and came into solar really starting in, in 2012, but I’ve been an attorney for approximately 20 years and in the energy space for 15 and focused primarily on project development you know, have done some fossil plants in the old days, including coal and gas, but now I’ve been almost all renewables since about 2012 and here in Illinois and across the Midwest solar has become fairly ubiquitous since approximately, oh, I’d say 2017 and you’re starting to see some real citing battles with solar like you have with wind. And I think that a discussion with regard to entitlements and siting projects is very timely now because frankly solar used to be fairly easy and it, it is becoming more and more difficult as opposition groups pick up on the wind play group playbook. 

Chris Jones: 

Very good. Thank you, David Chris. Hey, Chris Jones, Kimley-Horn. I sit in on our Las Vegas office. I am one of the solar practice builders across the firms and one of the leads across the firm. As a firm, we are focused on solar across the U.S. I’ve done everything from state to state the United States, maybe with the exception of four or five at this point in time. Personally I’ve been involved with solar for probably about the last decade. First projects dating back to 2009, 2010 in California. Since then, I’ve worked on projects across about 20 to 25 different states. So have a little bit of experience across the board, but more focused a little bit more out west. So that’s a little bit about me in my experience.

Jamie Weist: 

Very good, very good. And just as a reminder for everyone who is on this this webinar, if you’ve got questions during the discussion or during this process, just type those into the chat box and we’ll filter through and get the easy ones to answer. And then the rest of them we’ll have to get back with you on. So without further ado, let’s jump into our first question today. And as we tee this one up, I want you guys to be thinking about how geographically centric entitlements are. They’re very they’re very localized most of the time. However, there are some topics that transcend geography, and I want you to think about what the biggest considerations are, what the biggest hot ticket items are that you have to deal with when you’re trying to go through your CUP or your SUP process or your due diligence when you’re considering entitlements for a for a solar project, Kathrine, you wanna start us off? 

Katherine Ross: 

Sure, absolutely. And I’m just going to piggyback on what David said in his opening remarks in terms of the solar game mirroring closer to the wind game of late. I one hundred percent agree with that. And I think that comes down to one of the questions about your, your big, one of your biggest considerations is for me, what does the area know? What are they used to in terms of size? So one of the things that we’re definitely seeing across the Southeast is bigger, right? For those of you who know North Carolina’s background, we started as five megawatts. We have hundreds of five megawatts across North Carolina. South Carolina has hundreds of two megawatts across South Carolina, but everyone now wants to build 20 and above, 80 and above. And, you know, we’re starting to see 300-400 megawatt projects, which is just a different beast from both an entitlement perspective and an impact perspective, if we’re honest. 

So one of the biggest considerations, I think still in any market, no matter what is, what does the community already know about solar or think they know about solar? And I think that helps us identify where some of our opposition might come from and lets us early on in telling the narrative of a project tell it well, and that’s one of the biggest, the biggest considerations that we talked with clients from the beginning is what’s the story we’re going to tell to get to a successful permit. And it, to me, it’s all about how we ell our story, who we tell it to, and the support that we get. But real quick, a little more granular than that: Decommissioning is huge. We are also seeing the tax conversation come into the entitlement conversation, especially on a legislative action, as opposed to a quasi-judicial, which we can talk about those differences to the extent you tell us. 

But we are seeing money have an impact in a different way than it used to again, decommissioning and decommissioning bonds, taxes… And then of course, no one wants to see it. Some people don’t mind, but the general opposition is no one wants to see it. So those are the considerations I’ve put out there.  

Jamie Weist:  

Great. Thank you. David, Katherine mentioned a lot of controversial topics. Maybe you can dive a little deeper on some of those.  

David Streiker:

Yeah, sure. And I want to dovetail on a point that you made Jamie as well. When I’m coming into an area, you know, starting off at a 50,000 foot level, you really wanted to determine what role the state has with citing versus what role you’ll see the locals play. And I would say generally going east from west, it starts to gradually go from a very highly locally controlled process to perhaps more of a state centralized siting process, really until you get to California. 

But once you figure out if you’re going to be primarily dealing with a state siting board, you know, I think Ohio might be an example like that. For instance, for wind versus a local conditional use permit then you know, about what your playing field’s going to be. And I also would give the following words of wisdom that even if you can find a lot of resources on the web, for instance, the locality solar ordinance and some background on what they’re doing, always make a phone call to the zoning administrator, because you don’t know one, what they’re planning on doing to if they have updates to their ordinance in place or three, if their ordinance looks light, but their building permit code as a bunch of material backed into it. So that’s really a key point and then dovetailing on what Katherine said. 

It’s also very important when you’re coming into a locality to get a feel for the opposition. I think a number of states in the Midwest have had a similar history to what Katherine described in North Carolina, which is you start off with smaller projects here. It was more along the 20 megawatt size. And all of a sudden it’s exponential the 200, two 50, and you’re seeing projects and access of 300 megawatts. And that really has the agricultural community very organized and certainly in a number of states, the zoning boards of appeals, or what have you look at themselves as the protector of, of ag land. And, and you really need to know what that dynamic looks like going into it. And then one other topic I’ll throw out there. You know, also look at what one-off entities may have influence here, whether it’s drainage districts, water, resources, boards, and districts those types of things you don’t know they’re coming, it can be really helpful to get a permit matrix from a prior project, if you can get your hands on it from that state or even better from the locality. 

Jamie Weist: 

That’s great feedback. And when you mentioned putting together permit matrices, I know that’s something we do a lot of in different localities for different clients.  

Chris, maybe you can talk a little bit about when you, when you’re pulling those things together for a potential client how do you identify what are the hot ticket items or what might be items that might be a critical path, so to speak in order to get the project done through in the schedule?  

Chris Jones: 

David hit it on the head. The biggest thing honestly, is going in and getting to know those jurisdictions, whether you’re there locally or not when developers are coming in from out of town, the perception is that they’re, out-of-towners, they’re coming in with their money and they’re doing what they want. Getting in and really listening to the locals, also educating them at times understanding what’s important to them and working through that process goes a long, long ways. So any developer out there that is the first thing that we always recommend, that’s the first thing that we’re always doing. We’re trying to set up local meetings to focus on, on, you know, some of the more technical items that tend to be an issue. Again, it goes back to, it starts with money and it ends with money with many of these counties, right. They want to see the benefits. Nobody wants it in their backyard. How’s construction going to impact me, how is the long-term impact of the site going to impact me? And then at least from a civil standpoint, very often it’s grading and drainage. What, what is going on with that water again, how it’s going to impact the neighbors. 

What’s the site going to look like in five years, 10 years, 20 years, 30 years. So it’s all of those things. The earlier that you can have those conversations, the better off it is for the project and ultimately the project team.  

Jamie Weist:  

It’s interesting that you’ve mentioned that it’s like they see it as people coming in from out of town with a lot of money, trying to get what they want, almost like Las Vegas, where you live. Right. Exactly. So it is somewhat of a gamble when you start trying to navigate these local entitled. Okay. David, here’s a good question for you when you’re you’re in the Midwest. And so you’re dealing with urban areas, you’re dealing with rural areas and everything in between.  

What are the biggest considerations or differences when you’re trying to permit a project in a rural area versus an urban area? 

David Streiker: 

Right off the top, you’re typically dealing with a municipality in an urban area versus a county in a rural area. And depending on the state municipalities oftentimes have significantly more powers than counties do and can either have no solar ordinance at all, or a very, very detailed ordinance that in some cases can make it almost impossible for you to build the project that you want. Also you know, Katherine mentioned opposition frankly opposition in rural areas is at least in my experience, a little more predictable than opposition in urban areas and easier to plan for and easier to gain plan. When you have a hearing in a county on a project, you know, people have to drive from a long way to come there. If it’s a small municipality frankly you know, folks don’t have to travel very hard. It’s easy for them to get there. 

Also, it’s not something they have to look at every once in a while as they’re going to Home Depot or something like that. It could be something that they’re looking at every day. And I think also as you get closer to homes you know, even with solar folks have different views on or something they’ve read or heard on health effects and, and you really have to be cognizant of that when you get into densely populated areas. Katherine, anything you can add on to that especially your experience in the Southeast? 

Katherine Ross: 

Sure. I think, I think everything David said is spot on and I agree with the predictability versus unpredictability. Some of that I think is because we’ve just done more solar of utility scale size, obviously in rural areas. And I think that’s where we’re going to continue to, to find those. 

But we do see more and more sites, especially as sites get larger budding up against subdivisions, even though they’re kind of still rural. It’s a rural area. It’s not as rural as you know, prior sites. So maybe not downtown Raleigh, downtown Chicago, but you know, certainly areas where people are living and, and doing more than driving to the Home Depot. And for me, it goes back to some of our biggest considerations, which is getting in and knowing your community. And a big thing that I had talked with developers about is giving yourself time to get in and know the community. And that community is the zoning officials, the staff and the neighbors and Kiwanas and the church, and whoever else is on that list in that community. So I think even as we look being more urban those conversations and, and being part of the fabric of the community and knowing that community becomes even more important, because as David said, a municipality is a stronger, tighter knit by function of its size and proximity than a county is. 

David Streiker:  

And let me add one more thing, Jamie too, is that when, when you’re putting a ground Mount, especially in a more populated area, the classic response you get is why do you have to put it on the ground? Why can’t you put it on the roof? And then you gotta deal with that.

Jamie Weist: 

That’s right. That’s right. And we all know as Katherine mentioned, you know, it’d be nice to have more time, but these projects tend to have pretty tight schedules. And sometimes that’s what drives a lot of our, our activities is certain submittal Bates to meet contract requirements and things of that nature. Chris, here’s a question for you. You’re kind of the odd one in this whole group here, we’ve got the gas and land use attorneys. You’re an engineer.  

When would you recommend to a developer to bring in a land use attorney, what is the benefit, and when’s the right time to do that?  

Chris Jones: 

I actually like having folks like that in early again, it’s, it’s getting to know the people getting to know the community and having them be a part of the process. I would say there are ways to engage folks, whether it’s land use attorneys, civils, geotechnical, engineers, and others, where you’re not making a heavy investment, but you’re looking for those red flag issues, right? You don’t want to be investing money into a project months, weeks, years, whatever that timeframe is that that breaks the bank for you without truly understanding what’s going on with the land. And that’s, that’s where, you know, this collective group on the phone is really valuable. 

Jamie Weist: 

That’s great. That’s great advice. David, what do you think about that is that, does that make a lot of sense to come in early and check for the red flags? You mentioned earlier when you’re talking about difference between the rural and the urban. And one thing that I recall from, from doing entitlements to several different locations is that some locations you go to, they’ve got an ordinance it’s pretty straightforward and tells you exactly what to do, and then others, they don’t have anything. So what can you bring to the table to help a client early on to identify red flags and things of that nature before they spend a lot of money after something that may or may not?  

Chris Jones: 

Can I just jump in real quick, going back to the conversation on rural versus urban. One of the other things that you’ll often find is that in super rural communities that have never had solar I’ve flat out and I’ve had some of them tell us, ask us to tell them what to do. We’re the experts, right? And solar continues to mature. The issue that you’re running into is somebody else has come into that, you know, area. And there’s a horror story that goes along with it. So again, that’s where land use attorney can come in and help assist them in understanding what went wrong or items that can change in order to make the next project successful. Again, not only from the client’s perspective or the developer’s perspective, but also the municipality or the county.  

David Streiker: 

Yeah. And Jamie, to dovetail on that, to answer your question, you know, I, I typically would say earlier is better. And especially in some states, and I’ll just use Illinois and example where the actual conditional use or special use permit hearing is an evidentiary hearing. Things get very serious at that point and you’ll want counseling, I would say as soon as possible. 

And in many cases be aware that if it’s, you know an SP or a development company that’s coming in there, it cannot represent itself in an evidentiary hearing. You have to have an attorney taking that aside, something you want to consider, but, you know, I would typically start with the top down approach that I mentioned determining if there’s what state action, what local action. Then, like I said, you always have to have a call and develop a relationship like we talked about also typically local counsel would have a good idea if there’s any legislation moving at the state level, that when you’re talking about a 12 to 18 month development timeline might impact what you’re doing on the ground or how you plan for things. And furthermore, if, if the attorney is experienced, you know, he or she is going to probably have a good idea of what you have to look out for with regard to opposition, or I think dovetailing what a Katherine’s points, who you need to talk to in advance to let them know you’re out there to control the narrative. 

So they don’t come in halfway through the hearing and it caused a problem. And I would just conclude by saying, if you know, there’s organized opposition out there, you, you absolutely need an attorney.  

Jamie Weist: 

That’s great. Katherine, I want to change the question up a little bit to, so we’re covering something a little different. 

Can you give us an example of maybe where it was helpful that you were brought in early or an example where it didn’t work out as well, because you weren’t brought in early enough on a project?  

Katherine Ross: 

Sure. I can think of both of those now. I agree with the, with the bringing in early, and I would say what comes to mind recently as a, as a larger project in in a Western county where we knew that the county had had a horror story as, as David mentioned. 

And we knew we were following that horror story, whether we liked it or not, literally we were going to be before the deciding body at the same time that they were still talking about the prior project. And so we went in very early and we spent a lot of time, way more time than most projects would ever, you know, invest. But it was the only way to get to a successful apartment, which we ultimately did. The was scared. I use that word, but, you know, nervous dotting their I’s crossing their T’s. The board was thinking about all of the issues and, you know, with a lot of really good communication early and often we were successful. And I think the reason that one comes to mind is I was brought in early, but I stayed behind the scenes for a long time, which is a perfectly fine role for me in my mind. 

Were there help crafting the message, crafting the email, having the strategic conversations in the background, but there’s a strategic point at which the lawyer reaches out to the county or city lawyer, or depending on how the world is working in that area to the manager or to the zoning staff. And, you know, we, we rarely if ever want that to be the first contact, right. We’re not here to represent developers in the community and be the face of their projects is, is my view. We’re one of the faces. And we take that very seriously, but the developer developers, we really encouraged to build their own relationships. So there’s one where coming in early and having often con often and frequent communication and not pushing the staff to move, and we pushed them and it was still a really slow process. But recognizing how much we could or couldn’t push them. 

And by the time I came on the scene, they were comfortable because they’d seen my name on emails. They were comfortable with me being there as an attorney. They weren’t afraid. So that’s just one example. We certainly come in at the end and tried to salvage. I don’t know how to describe it. That is not our preference. I don’t think it’s the developer’s preference either, but oftentimes we see that and David mentioned this in we see that happen in a legislative action, like a rezoning versus an evidentiary or quasi judicial action, like a use permit. More often we see sometimes developers, you know, think that they’ve got a handle on the political legislative process that having the conversations, but something goes sideways with counseled opposition, or just counties, kind of trying to understand their own processes where a lawyer can be very helpful. 

So we certainly do see that as well. And you know, you go in and you make the best of it and you do the same thing, pat David’s top down approach. You have to figure out who the decision-makers are, who you have to talk to and you go in and do it and work hard in a short time to get a good outcome.  

Jamie Weist: 

There you go, three for three, bring your land, use attorneys early and often. All right, well, let’s switch gears a little bit, Katherine. You you’ve got an open mic, so let’s give this next one to you. How do you combat misinformation as it relates to specifically environmental concerns? Because a lot of times when you go to a public hearings or, or community meetings you know, there’s a lot of misinformation floating around about zapping, the energy from the sun and, you know, laser beaming birds out of the sky and, and run off and and groundwater issues, and this land is going to be, you know, a desert from here on forward and all these different rumors that, that somehow have gotten out into the pole. Like, and I mean, you can even find a Google list of them if you want. How do you combat that? Knowing that it’s you against, you know, maybe a hundred people saying the same thing.  

Katherine Ross: 

Sure. first thing that I say is, I don’t think you have to combat everything that gets thrown at your face. And when you start trying to do that again, you sort of lose the power of telling your narrative. I kind of go back to, you know, law school of, of, you know, when you, when you’re trying to ask a question or you’re trying to answer a question, we tell witnesses to answer the question asked, well, in a lot of these settings is not what we say, right? 

We say hear the question then tell the narrative from a perspective that is accurate and truthful, always, but beneficial to you. Obviously at some point, very pointed questions you have to just answer or, or you are giving the wrong impression. And on those there, I think you just tell it honestly, and truthfully the other thing that we talk a lot about is having a third party expert speak to them as opposed to a company person. And again, that’s a strategic decision based on what’s going on in the, in the community, in the county and who you have available resource as terms of a resource. We are fortunate in North Carolina to have the North Carolina clean tech center at North Carolina state university. I mean, they, they expand way beyond North Carolina, but they sit here in Raleigh with me, they’ve produced a specifically on, you know, the environmental and public health and safety issues, a white paper that has been used all across I’ve ventured the country. 

I think it’s been updated and adopted for California and one other state Tommy Cleveland was one of the principal authors of that. He and I were just talking about it. My hope is they’ll continue to update it. So finding resources that are not just the project developer or the project engineer spouting out what people aren’t necessarily going to believe, I think is a really important point. We do that in wind all the time, right? We have health experts that come in for when we have noise, we have sound, we may not like it that as we grow and get big with the especially bigger solar, I think we’re going to have to beef our resources for our third party consultants.  

Jamie Weist:  

Right. David, what do you think?  

How do you calm an angry mob?  

David Streiker: 

Yeah. Well, let, let me answer that in a couple of ways and I’ll pick up on where Katherine left off. If you’re not able to do it with the team you have, which at least in my experience often it’s your, your civil engineer like Kimberly Horn. Your attorney, you typically have a property tax valuation person may be an economic impact and a tile and drainage person. I always try and attack some of those questions initially with the team you have, and then see if you need an expert, like Katherine mentioned, let me give you a few examples. You know, you always get questions about glare. Well, this is gonna cause glare and it’s gonna impact drivers, or it’s gonna come in my windows or what have you. And, you know, typically you go in and say, Hey, these are solar panels. You know, they’re designed to absorb solar radiation and they’re anti-glare protected. 

That I usually go, I grew up in and around air force bases. If you look on Google Earth, whether it’s an airport or an air force base, you’ll see solar panels right off the runway, half the time out in the Western states, those are great visuals. You can put up that anyone’s going to get. You know, questions with regard to leaching into the environment. I’ve had instances where, you know, you can put your project developer up there and talk about how these panels are solid state. It’s the same type of glass that you have in your windshield, but if that’s not convincing and that’s not moving the ball forward, and somebody is still putting or attempting to put evidence in the record that solar is going to cause some sort of environmental or health issue, as Katherine mentioned, you absolutely have to turn to an expert at that point, especially if the opposition is up armored and another great point that Katherine made when you’re going into a situation, if you want some third-party information, but not have to engage an expert and go through the time and expense of, of that person or entity putting together a report I have made good use out of the white papers. Katherine, I’d love to see the North Carolina one. I think the last set that we’ve recently used was Massachusetts had published some pretty good materials, but those are all ideas. Try and talk to them reasonably, bring in some, whether it’s Google Earth snapshots or things that everybody can appreciate talking terms. People can appreciate this, a solid state. It’s not going to leach if that doesn’t work, bring in your experts.

Jamie Weist:  

That’s right, Chris, I’m going to switch this up a little bit on you. And we have a specific question here that someone typed in on the on the Q and a, that relates to this somewhat, but it’s more on an engineering side of things. And you mentioned earlier that you know, some of the, some of the biggest obstacles that we run into are people that are worried about impacts the environment, things like that. 

What are some of the typically overlooked site constraints that could possibly kill a project as it relates to either environmental items or side grading or drainage? What are some things that a developer may be tempted to skimp on, on the on the due diligence upfront that may come back and hurt a project later?  

Chris Jones: 

The one that pops in my mind across the board is erosion control. It’s probably the most overlooked thing at the onset of a project. Developers will just dump in, you know, their standard number as far as a financial number to say, oh, that’ll cover it. And it’s an afterthought. And the Southeast in recent years, we’ve been seeing that number go up drastically. There no plan for it, it just happens. You go as the civil engineer at the end of the project, you’re, you’re developing your erosion control plan and it blows their predicted number out of the water. And that’s always a fun discussion when they’re trying to hit their numbers to make sure that their project is profitable. So that, that to me is the most overlooked thing. It’s not so much a land constraint, but it is something that the earlier in the process, going back to things that David mentioned, that you can understand truly what the requirements are, not only from a construction cost standpoint, but a maintenance and operations, and you know, how long that process is going to occur will better help inform you down the line as cost starts to rack up. So that’s probably the biggest one. The other ones I think are pretty straightforward. You know, it’s setbacks, it’s zoning, it’s land constraints. 

It’s, it’s making sure that you provide accesses. Those are more of your cut and dry engineering aspects. So again, off the top of the head, it’s it’s environmental. I mean, it’s an erosion control. 

Jamie Weist: 

That’s great. Well, you mentioned cost and we know that costs and, and Katherine, I think you mentioned earlier, you mentioned earlier that a lot of times localities want to know what’s in it, for me, what’s the economic benefit, but not only that, but what are the economic risks and that’s where we get into this whole terminology, decommissioning plan and decommissioning estimates. And then, and I know in our experience in doing these plans and estimates all across the country, the numbers vary widely, and the expectation varies as well in different localities.  

Can you give us a little bit of an idea of about your knowledge of decommissioning and where is it headed compared to where is it now? Is it going to become a standard in certain localities or certain states? Or is this something that’s always just going to be the wild, wild west? 

Katherine Ross: 

Sure. Before I answer your question, I want to go back to Chris’s for just a second. And this may be because of the fights that we’re currently mired in, but access and point of interconnection are the two site constraints that I would raise right now and not so much, like, do you have access and do you know where your point of interconnection is, but have you really looked at what you have to cross under over, through to get access and access roads in and to get your point of interconnection to where the utility is going to accept it? Because we’re just seeing an, and this would be across states. A lot of sort of after the fact issues come up, like, you know, encroachment agreements on non-jurisdictional ditches, or there’s a drainage, you know, to, to the point there’s a drainage system in that county entity has rights across non-jurisdictional ditches that you’re going to need easements, conservation easements. 

Some people understand better what that means and what you can do. And there may be a road across that conservation easement. That’s great for a horse or a cow, but it is not going to handle your construction equipment. And you’re not going to be able, you’re not going to be able to just improve it. You’re going to have to jump through some hoops to improve that existing road. So it’s great that the conservation easement says there’s an existing road and there is, but it doesn’t necessarily mean you can make use of it. So I had to go back to that question mostly because I think I’m jaded at the moment with, with things that are going on, but those were the two that popped into my mind. When you asked Chris this question, decommissioning you know, talking about knowing your state legislation there is legislation and rules that would put decommissioning of solar at the state level in North Carolina, right? 

We don’t have a state siting board we’re very local, but there are there’s legislation that has our environmental commission looking at decommissioning of statewide decommissioning rules. So that would be a new wrinkle for North Carolina, with respect to solar. We have a wind siding bill, but we don’t really have anything related to solar on a state level. I am sure that many other communities across the Southeast or states will start looking at that many communities are looking at their decommissioning language. You know, the model template that’s kind of been used in North Carolina, South Carolina and Georgia had decommissioning light. It had an option for a decommissioning plan. It was fun to be a part of creating that the world has changed, right? It is no longer about just a decommissioning plan that says, guests will take everything out to 36 inches and we’ll receipt it to the conversation about bonds and to the conversation about what all does come out. 

So we’re seeing a lot of focus from communities, again, in all states around conditions that they will put, even if their ordinance doesn’t require it. They’re talking about putting a condition on, of a bond to protect public health because and detect protect property values because they view it as at the end of the life of the facility that it’s not just there in stagnant. And we have the big box conversation. You know, you don’t have a decommissioning bond on a big box and they S we’ve all seen them sit empty. We have a salvage value conversation, right. Which is always an interesting one, getting counties to understand, to take out the salvage value, which feels a little hokey to some, because they barely understand what the numbers mean as sort of future money versus present use money. But we weren’t, we worked through those conversations. 

It’s another place where I say to developers, give yourself some time. Don’t, don’t be afraid of the conversation when you start making your relationships within the county, go ahead and have the conversation so that you can be prepared and have time to walk through and educate folks on it. So that hopefully you can get to an end result that allows the project to be financeable and move forward.  

Jamie Weist: 

David, I’m kinda thinking about what Katherine was talking about there. One thing she mentioned that it’s kind of interesting to me as, and I’ve witnessed this at, at the number of public hearings is how community or utility scale solar projects are treated differently than other development projects. There’s a lot more restriction. There’s a lot more upfront due diligence and studies and requirements and, and a lot of questions about things that other developments, if you’re putting in, you know, a 2,000 house subdivision or build a you know, building a shopping center or something like that you don’t necessarily have to do to get through the process. How do you feel about that? Is that legal?  

David Streiker: 

It certainly is, and decommissioning, I think is one of the ways that utility scale solar is treated vastly different from rooftop, solar, or any other development out there with the exception of wind power. And that is probably where you end up spending at least a quarter of your time in the Midwest talking about decommissioning. There are state standards in Illinois that are minimum standards that localities can build upon. But as far as is it legal you know, here, here’s what you look to most zoning codes, talk about zoning for structures. Okay. And you get into a debate. And this is where we were here in Illinois in 2007, with regard to wind, is, is it a structure or something different? Well, the state, which is, you know, the sovereign entity here passed a specific statute, allowing counties to create specific zoning like requirements for wind and unincorporated areas. 

The same has not been done in solar first, solar here. So, you know, could somebody challenge that? Yes, I think that most developers and rightly so aren’t challenging the bases for any ordinances, but you’re going in and operating under the ordinance because cause challenging the authority for an ordinance would take, you know, potentially years. And if you can’t work with the locals to either get the ordinance amended, how you need it or to get a variance from that ordinance a lot of times you see folks walking as opposed to fighting the battle. So to actually get to the root of that question, Jamie, I don’t know if it will ever be fought or not, but, but it, it certainly could. And no doubt that utility scale wind and solar are treated differently, but, but there are different types of projects. And I think there’s probably some sympathy for disparate treatment with regard to solar, because it does take up so much ground space and it does not have a high concentration of permanent jobs that are created. 

Depending on the locality, it may or may not have a high property tax concentration. One thing I wanted to add before I turn it back to the other panelists, but another thing to consider with regard to site constraints is mineral rights. Severance always make sure, you know, if the mineral rights have been severed because often the mineral estate is dominant to the surface estate. And even if these are severed coal rights from a hundred plus years ago, if someone wants to come and exploit those reserves, they have the ability to get on the surface of state.  

Jamie Weist: 

Thank you, David. Before we move on from decommissioning, Chris, did you want to add anything to that?  

I know you’ve been involved in developing estimates and narratives and, and bonding estimates and things of that nature. Any advice that you can give this group? 

Chris Jones: 

I think they covered it pretty well. It’s the thing that I’m seeing the most about west is the salvage discussion. You know, what, how they view that, how hard to push back on that again, getting into the ordinance conversation as well, looking at variances and just tying that all in. We’ve been trying hard as a firm just to again, to give people some, some thoughts. We’ve been trying hard as a firm to try to standardize it, but it is so hard because in every different jurisdiction, people want to view things and argue things in a different way. So we’ve, we’ve done it. We, we continue to look at it and again, it gets back to understanding what’s important to that various jurisdiction and then having the conversation and really the negotiation with them in order to get the best plan for the developer and the best plan that makes the county or the AHJ amenable. 

Jamie Weist: 

So, yeah. True. It’s a good point. And thank you all for kind of diving in deep there, because I know that’s one of the big issues that we consistently run across in all of our localities kind of question pop up on the on the chat board that I thought was, was relevant and a good one. David, why don’t we start with you on this one?  

The question is what is the most effective way to build relationships with neighbors or planning boards or key stakeholders when you’re in the development process? When in the development process do you typically start doing that?  

David Streiker: 

Well, I’ve seen it done again very early and at least up until March of last year, I would say the in-person meetings are the most important way to develop those relationships. You know, starting off with the landowners. It’s, it’s typically easier in solar because you don’t have as many different landowners as you do with wind. 

So what I often try and figure out one is your landowner, someone that’s local, or is it, you know, an LLC that’s owned? You know, it may, the property might be in Missouri, but the, the land owners lives in Arizona. Full-Time if your landowners local and someone that’s well-respected locally, that person can be a big help and help you make some of those connections. If, if it’s not, if it’s a corporate entity, which more often than not seems to be the case, now, then you’re going to have to do it on your own. And you know, if it’s, if you’re a developer working in Missouri, but you’re out of Houston, you got to make the decision how much time do you want to put in to travel, to go there, to build those relationships? Or do you want to hire somebody local to help you to work that process in a much quicker manner? 

So, you know, with regard to land owners and elected officials, I think that’s a pretty good process. One thing you do have to be careful about with relationship building is if you are in a state where you’re going to have an evidentiary hearing and go before, for instance, zoning board of appeals or planning board members you do have to watch out for ex parte communication. So make sure that you do talk to your lawyer and get a protocol in place in advance for how those conversations are going to be conducted. And if they are in elected officials, sometimes if you’re talking to whatever the number is two, three, four, or more. At one time you have an open meetings or a sunshine act violation, and that can really come back to bite you too. So think about those in advance.  

Jamie Weist: 

Great advice, Katherine, anything to add to that?  

Katherine Ross: 

One thing that came to my mind, I agree with everything David said and all of the pitfalls that he raised, one of the issues that we’re hearing more about and seeing more about it came to my mind with sort of what we call the absentee landowner is if the land is under a farm lease being really aware of the community’s view about this thinking about environmental justice issues you know, we are seeing a lot of that conversation happening. I’m very pleased to say we’re seeing it coming from our developers were looking at good neighbor agreements. And what does that look like? We’re looking at tenants severance agreements and what does that look like? But so there’s a legal aspect to all of that. And there’s a financial aspect of all of that that you want to take into account if it’s again under a farm lease or we’re under a timber lease we see more of the farm lease discussion going on right now. A lot of timbering land being used, but it’s owned by the company that’s, that’s doing the timbering or the owners doing the timbering and actively managing it as opposed to leasing it. But in addition to the financial and the, and the legal conversation, there’s a perception conversation to be had and not just a perception, but a true impact conversation. So I think it’s important as sites get bigger, you hear the theme, but as sites get bigger as sites go into you know, different states and different areas that, or as developers go into different states in different areas for sort of repeat, you know projects, right? They’ve done one, but now here’s their second one because they figured out how to do it, you know, get their entitlements, they know the process. Maybe it’s the same land owner that owns, you know, 1,200 acres on the other side of the county or the next county over. But thinking about how that buildup and what that, what that does with tenant farming and farm leases, I think is a big issue that we all need to keep in mind as we go forward.  

Jamie Weist: 

Right. Excellent. So I’m a developer and I’ve come in and I’ve got this great project. I’ve got an amazing piece of land that drains well avoiding all of my environmental tax. I’m doing the right things going through the right process, but yet I get to the public hearing and they voted down and I’ve spent all this effort, all this money, all these resources and, and my landowner is upset because they were gonna, you know, do this project and retire from, from agricultural production for a while. 

What are my next steps? What can I do if my project has been denied? Does the landowner have any rights? Does the developer have any options? Where do we go from here? What do we do next?  

Katherine Ross: 

Sure. It’s a great question. And if I’ll go out and say, if you have a good land use attorney, you’ve talked about this before you get to that position. Not because you think that’s where you’re going to end up, but because it’s the smart, responsible thing to do. Second of all, you have to have a strategic conversation with your team. Internally is better to get a denial or to withdraw when you know, you’re going to get a denial and you don’t always do, but again, kind of hopefully you have a vote count. You’ve read the room, you’ve done the work, you know, which way it’s going to go majority of the time. 

Not always, but to your specific point yes. In advance of being in that position, hopefully, you know, what your ordinance or your state statute say about a motion for reconsideration or whatever terms they use for reconsidering the decision. Are there basis points for which you get the right to ask them to reconsider? You also should know, is there a time period when you get to apply again, that’s often in ordinances, ordinance, state statutes that you, if you get a denial, you can’t come back with the city substantially the same use in the same plan for six months or a year, but knowing your timeframe doesn’t mean you’re done. And you can never come back thinking about what your game plan is in that process. If it’s a quasi judicial evidentiary action, often having the strategy conversation about whether or not you appeal to the next level you know, within the court system and what, what that might look like and what the, the chances of success might look like and balanced with. 

Do you want to be the developer in the community that took the county to the court of appeals or wherever, and one, and have to, you know, operate with them being mad at you for 30 years, many, many projects do, but all of those are options. The legislative actions, the rezoning legislative actions are a little bit harder standard on an appeal basis. I’ll be honest, there are a lot harder standard on an appeal basis. But all of those are things to, to strategize and talk about for me before you’re in that position. I’ll be interested to hear what David says.  

Jamie Weist:  

David, where do you go from here, especially as a landowner. I mean, do you just convert your corn field into a hog farm just to stick it to your neighbors? What are your options 

David Streiker: 

I liked the hog farm idea. Unfortunately, it’s actually harder to permit a hog confinement area in many places than it is a solar farm these days. But I, I can tell you that and as Katherine mentioned, it sort of depends what stage, if you lose at an evidentiary hearing stage, typically you have at least a fairly robust or clear path towards an appeal. So while that’s going on, the first thing you’re looking for is procedural errors, because that can often be a dead bang winner versus, Hey we take a look at the totality evidence. It didn’t uphold their decision, that that’s a much worse position to be in. 

So I can tell you typically I don’t know if it’s my number one relationship, but your number two is you’re working with the county or the city’s attorney the entire time. And when you start seeing things go wrong, you say, hey person by the way, your folks are getting either out of their sandbox, you’re out of line or they’ve missed some steps. And I have seen the state’s attorneys jump in and I’m using a term here from Illinois, but tell their folks that, you know, if you do vote tonight at this point, you’re going to immediately get appeal. And you’re going to be subject to getting overturned because of what you’re either did or what you’re about to do. And that can help you unwind a decision and at least delay it a day a week, where you can get in talk to friendly board members, whatever, and try and get the situation resolved. 

Otherwise if you’re going to go up on appeal, just be concerned about your record, because that’s what you’re going up on and make sure you got your hearing transcripts and everything looks right. And while you may have known that you showed person a, or got this into the record, if it doesn’t show up in writing, it’s not going to be worth anything on appeal.  

Jamie Weist: 

Very good, very good advice. I think that’s why recorded meetings are often the best because you can always go back and review the tape and throw the red flag out and get a change in the call. We’ve got about five minutes left and we want to do a quick kind of rapid fire around the panel here, Chris, I’m going to start with you since you’ve been quiet for the last few minutes and get these, give David and Katherine a breather.  

What last minute parting shots or advice or things should developers be aware of as they approach entitlements in communities? 

Chris Jones: 

I think we’ve beat this almost to a pulp, but even the last question, the sooner you can get in and truly understand what’s going on, wherever you’re developing, the better off you will be, then the better off the project will be, even as you go through construction. Really that is the biggest misstep that I see people get big eyed over, over the opportunity to make some money and the process isn’t given enough time. There aren’t enough partners brought in to help assist through that process. So that would be again, the big line that I drive home on anything related to entitlements.  

Jamie Weist: 

David, how about you? What’s your high-level advice to send everyone away with?  

David Streiker: 

Well, like I said, just please make a phone call because you can look at the ordinances you can do as much research online. You can take that to its logical end, but you don’t know what opinions personalities are and you don’t know what they’ve got planned. And invariably, they’re looking to update a legislation, create one. And I got to say, one parting shot is if you get in at the right time, you can actually draft the ordinance that perfectly supports your project. So you wouldn’t know that opportunity unless you reached out personally.  

Jamie Weist: 

Perfect. All right, Katherine, wrap us up.  

I like to think that we’re always going to be successful. So you’ve got your use permit or you’ve got your rezoning. Everyone’s so thrilled. And then they go off and they turn it over to construction and no one ever talks to each other or the county or the municipality again until, oh, guess what? You go for building permit. And the engineers move to the substation 500 feet, or maybe they moved it only 30 feet. But no, what now everyone’s going well is that an amendment to our site plan that was approved? It’s going to depend on your ordinance. It’s gonna depend on your county. Is it a staff level approval? Does it have to go back to the board? So many questions that come up at a very critical time for most projects in my experience, that is, if you thought you were going to go pull a building permit on Wednesday and you’re now delayed somewhere between a week and a month or three months, you’re not happy. So celebrate your success. And then the next week regroup as a team and say, okay, what are our next five steps? Who’s going to stay in touch with county. Who’s calling the inspection’s office. 

Now that we’ve dealt with zoning. You know, if you’ve been at a state level, great, you’ve got your state permit. Now, what do you need from the county who may or may not be happy about this state process that you went through? So my partying shot is enjoy your success, but don’t do it to your detriment and then get caught sighted when you’re ready to put the shovels actually in the ground.  

Jamie Weist: 

Yes, that’s, that’s great advice. And you know, entitlements do expire. So now your expiration date celebrate, but make it brief and proffered conditions matter, right? Always go back and review those before you start your site design and your building process. So great advice, Katherine. Well, we’re nearing the end of our hour together. I want to thank our panelists, David, Katherine, and Chris for joining us today. I want to thank all of you all for joining, and we’re going to be doing these webinars series every quarter. 

Be on the lookout for the next one. And if you have any other questions that weren’t answered that we didn’t get to, or you think of something after the words this this session will be recorded and you’ll be, you’ll receive an email of the recorded session next week. And you can, our contact information is on there and you can reach out to us. Again Katherine covers the Southeast. Chris covers the, the Western part of the country. David is in the Midwest and I’m here in the great Commonwealth of Virginia. We appreciate your time and your attention and participation, and we hope to see you soon.