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KENTUCKY MODEL SOLAR ZONING ORDINANCE 2.2SEPTEMBER 20201In response to the increasing interest in the development of solar energy resources inKentucky, the Kentucky Resources Council has developed this Model Solar Zoning Ordinance toassist localities in adopting provisions to regulate the siting of solar energy facilities in theircommunities. This Model Solar Zoning Ordinance is based upon a review of best practices fromacross the United States and is tailored to meet the unique needs of Kentucky, with the goals ofencouraging appropriate siting of solar facilities and protection of the correlative rights oflandowners to the use and enjoyment of their lands. All counties in Kentucky are unique, andplanning and zoning should be tailored to meet and guide current development and futureaspirations of the county residents. The ordinance offers a “menu” of options in certain areas, toallow local officials in conjunction with county residents, to select the options that best meettheir needs. Explanatory text is provided in footnotes.HOW TO USE THIS ORDINANCEThis Ordinance provides the framework for the regulation of land uses involving theconstruction and operation of solar facilities. It is intended to provide suggestions forconsideration by communities, Planning and Zoning Commissions, and County governments asrevisions are made to Comprehensive Plans and zoning ordinances, and may need to be modifiedor adapted to conform to the framework of local planning and zoning ordinances.1This model ordinance is developed by the Kentucky Resources Council for general use and consideration by thepublic and by local planning and zoning agencies. It is not intended to provide legal advice.KENTUCKY RESOURCES COUNCIL 1

MODEL SOLAR ZONING ORDINANCESection 1. PurposeThe purpose of this ordinance is to facilitate the siting, development, construction, installation,and decommissioning of solar energy systems (SESs) in [city/county] in a predictable mannerthat promotes and protects the safety, health, and welfare of the community. This ordinanceencourages the appropriate siting of SESs to bolster local economic development and jobcreation, diversify the state’s energy portfolio, strengthen energy and grid security, and reduceother environmental impacts. The appropriate siting of SESs considers, avoids to the extentpossible, and mitigates any adverse impacts to wildlife, productive and nationally importantagricultural lands, forests, endangered species habitat, and historic, natural, and other sensitivelands. The appropriate siting of SESs also establishes standards and requirements to assure thatthe use and enjoyment of lands located adjacent to and in the proximity of SESs are fullyprotected.2The requirements of this Ordinance are intended to be supplemental to any safety, health, orenvironmental requirements of federal, state, or local laws, and regulations.Section 2. DefinitionsSolar Energy System (SES) means a device, including its components and subsystems, thatcollects solar energy for electricity generation, consumption, or transmission, or for thermalapplications. SESs are in turn divided into three types depending on how the system isincorporated into the existing land use:Integrated Solar Energy System means an SES where the solar materials are incorporatedinto the building materials, such that the building and solar system are reasonablyindistinguishable, or where the solar materials are used in place of traditional buildingcomponents, such that the SES is structurally an integral part of the house, building, orother structure. An Integrated SES may be incorporated into, among other things, abuilding façade, skylight, shingles, canopy, light, or parking meter.Rooftop Solar Energy System means an SES that is structurally mounted to the roof of ahouse, building, or other structure and does not qualify as an Integrated SES.2A community may wish to incorporate into the solar zoning ordinance, a preference for siting of large groundmounted solar arrays on brownfield properties. EPA’s initiative RE-Powering American’s Land: Siting RenewableEnergy on Potentially Contaminated Lands, Landfills, and Mine Sites, has tools and resources to help:https://www.epa.gov/re-powering. Developing solar on brownfields may involve additional challenges infinancing, permitting, and remediation, but may also offer incentives to assist in defraying those costs.KENTUCKY RESOURCES COUNCIL 2

Ground Mounted Solar Energy System means an SES that is structurally mounted to theground and does not qualify as an Integrated SES. Ground Mounted SESs aresubcategorized as follows: Small Scale Ground Mounted Energy System (Small Scale SES) which is aGround Mounted SES with a Footprint of less than 2,500 square feet Intermediate Scale Ground Mounted Energy System (Intermediate Scale SES)which is a Ground Mounted SES with a Footprint of between 2,501 square feetand ten (10) acres. Large Scale Ground Mounted Solar Energy System (Large Scale SES) means aGround Mounted SES with a Footprint of more than ten (10) acres.Exempt Solar Energy System (Exempt SES) means a SES that is a facility of a municipally ownedelectric system or public utility regulated by the Kentucky Public Service Commission or FederalEnergy Regulatory Commission, which is exempt from planning and zoning requirements underKRS 100.324.Farmland of Statewide Importance means a map unit identified by the Natural ResourcesConservation Service as including soils that nearly meet the requirements for prime farmland andthat economically produce high yields of crops when treated and managed according toacceptable farming methods.Footprint of the SES is calculated by drawing a perimeter around the outermost SES panels andany equipment necessary for the equipment to function, such as transformers and inverters. Thefootprint does not include perimeter fencing or visual buffers, nor transmission lines or portionsthereof that are required to connect the SES to a utility or customer outside the SES perimeter.Prime Farmland means a map unit identified by the Natural Resources Conservation Service ofthe United States Department of Agriculture as having the best combination of physical andchemical characteristics for producing food, feed, forage, fiber, and oilseed crops and is availablefor these uses.Siting Board Regulated SES means a SES that constitutes a “merchant electric siting facility”under KRS 278.700(2), the construction and siting of which is subject to review and approval ofthe Kentucky State Board on Electric Generation and Transmission Siting. A merchant electricsiting facility is an electricity generating facility or facilities that, together with all associatedstructures and facilities are capable of operating at an aggregate capacity of ten megawatts (10MW) or more and sell the electricity produced in the wholesale market, at rates and charges notregulated by the Kentucky Public Service Commission.Section 3. Applicability(a) This ordinance applies to the siting, construction, installation, and decommissioning of anynew SES within the jurisdiction of [the city/county] after the effective date of this ordinance.KENTUCKY RESOURCES COUNCIL 3

(b) An SES in operation, or which has begun physical construction prior to adoption of thisordinance, shall be considered to have legal nonconforming status in accordance with KRS100.253.(c) The following are not subject to this ordinance:1. Modification to an existing SES that alone or in combination increases the total SESFootprint by no more than 5% of the original Footprint.2. Routine maintenance and repair, including replacement of solar panels, not increasingthe SES Footprint.(d) Any Exempt SES shall provide the Planning Commission, Board of Adjustment or otherauthority having jurisdiction, and Fiscal Court with information concerning service facilitieswhich have been located on and relocated on private property in accordance with KRS100.324(3). 3(e) An SES shall comply with all applicable federal, state, and local laws, regulations, andpermitting and other requirements, and applicable building, fire, electrical, and plumbing codes.Section 4.Conditional Use Permit Requirements and Allowed Uses4P: The SES is a use that is allowed in the district without the necessity of obtaining a zoningpermit or prior planning approval, provided that the applicable requirements below are met. Avariance from any of the standards applicable to a SES may be obtained through the Board ofAdjustment or other authority having jurisdiction.CUP: Conditional Use Permit required. The SES is allowed in the district subject to therequirements set forth below and only if the applicant first obtains a Conditional Use Permit inaccordance with the [city/county] zoning code.Accessory UseIntegrated SESRooftop SESGroundMounted ralPPThe SES facilities of a municipally owned electric system or public utility regulated by the Kentucky Public ServiceCommission or Federal Energy Regulatory Commission, are exempt from planning and zoning requirements underKRS 100.324. The statute does allow planning units to request information on their facilities. This provisioneliminates the need to ask on a case-by-case basis, making a standing request to such entities for that information.4Some communities may decide not to adopt any standards for rooftop or small ground mounted SESs, and tolimit the focus of planning and zoning to larger ground mounted SESs. The standards are offered to provideguidance and to minimize conflict among neighbors, by prescribing some minimal standards for rooftop and smallground mounted SESs without requiring any zoning approval or prior authorization unless a variance is soughtfrom the standards on a case-by-case basis.KENTUCKY RESOURCES COUNCIL 4

Small Scale*IntermediateScaleLarge ScalePCUPPPPPPCUPCUPCUPCUPCUPPrimary UseIntegrated SESRooftop SESGroundMounted SESSmall ScaleIntermediateScaleLarge l-PCUPPPPPPCUPCUPCUPCUPCUP*A Small-Scale Ground Mounted SES qualifies as an accessory use only if its area is lessthan 50% of the footprint of the primary structure.Section 5. General Requirements Applicable to Integrated and Rooftop Solar EnergySystems(a) Solar Access. Consistent with KRS 381.200(2), a property owner may obtain a solareasement from another property owner for the purpose of ensuring adequate exposure tosunlight for an Integrated or Rooftop SES. Such easement shall be recorded.(b) Tree Removal. The removal of trees or natural vegetation for an Integrated or RooftopSES shall be limited to the extent practicable and shall comply with all the requirementsof the [city/county] zoning code regarding tree removal, and any applicable state orfederal requirements.(c) Height Restrictions. A rooftop SES shall conform to any height restrictions for roofmounted mechanical devices or equipment for the applicable zoning district and may exceedthe maximum permitted height for the structure type by no more than five (5) feet. A rooftopSES shall be positioned on the roof so as not to extend above or beyond the edge of anyridge, hip, valley, or eave, provided that where it is mounted on a sloped roof, the SES shallnot vertically exceed the highest point of the roof to which it is attached by more than five (5)feet.(d) Lighting. Integrated and Rooftop SESs shall not be illuminated and shall be designedand installed to prevent off-site glare.(e) Historic Preservation. Where an integrated or rooftop SES is proposed to be installed ona property located within an historic district or which is listed on or eligible for listing on theNational Register of Historic Places, the proposed installation shall be coordinated with anyreview required by the zoning ordinance for exterior renovations or additions to suchstructures.KENTUCKY RESOURCES COUNCIL 5

Section 6. General Requirements Applicable to Ground Mounted SESs(a) Solar Access. Consistent with KRS 381.200(2), a property owner may obtain a solareasement from another property owner for the purpose of ensuring adequate exposure tosunlight for a Ground Mounted SES. Such easement shall be recorded.(b) Tree Removal. The removal of trees or natural vegetation for a Ground Mounted SESshall comply with all the requirements of the [city/county] zoning code regarding treeremoval and mitigation, and any applicable state or federal requirements.(c) Lighting. Lighting of a Ground Mounted SES shall be limited to the minimum necessaryfor safe operation, and shall be directed downward, incorporate full cut-off features, andincorporate motion sensors where feasible. Lighting shall be designed to avoid light trespass.Nothing in this Ordinance is intended to preclude installation of lighting required by theFederal Aviation Administration.(d) Height Requirements for Ground Mounted SES. A Ground Mounted SES shall notexceed twenty (20) feet in height as measured from the highest natural grade below eachsolar panel without approval by the Board of Adjustment or other authority havingjurisdiction. The height restriction excludes utility poles, storage batteries, substationstructures, and antennas constructed for the project. A Ground Mounted SES may exceedtwenty (20) feet in height upon a finding that the SES would be more productive, use lessland, or provide other environmental, economic, or other benefits if the height limitation isincreased.(e) Siting Restrictions for Ground Mounted SES1. An Intermediate or Large Scale Ground Mounted SES, measured from the closerof the outer edge of the nearest panel or perimeter fencing, shall be located at leastfifty (50) feet from the property line of any property zoned for residential oragricultural use, at least thirty (30) feet from the property line of any propertyzoned for commercial, business, industrial, office, or institutional use, and at leastfifty (50) feet from the centerline of any public road.2. An Intermediate or Large Scale Ground Mounted SES, measured from the closerof the outer edge of the nearest panel or perimeter fencing, shall be located nocloser than one hundred (100) feet from a residence located on a property otherthan that on which the Ground Mounted SES is to be installed.3. These setback provisions above can be waived in writing by the adjacent propertyowner to whom the property line or residence setback is applicable.4. Setbacks are not required where the property line is shared by two or moreparticipating landowners.KENTUCKY RESOURCES COUNCIL 6

5. Setback requirements may be reduced by 25% where effective existing orproposed visual screening is determined to exist by the Board of Adjustment orother authority having jurisdiction.566. Setback requirements may be expanded by a Board of Adjustment or otherauthority having jurisdiction, as a condition of approval of a Conditional UsePermit, where deemed necessary to assure effective screening.(f) Screening. Ground Mounted SESs shall be effectively screened from properties zoned forresidential use other than that on which the SES is to be constructed.1. Ground Mounted SESs approved as a conditional use shall have or install a visualbuffer of natural vegetation, plantings, earth berms, and/or fencing that willprovide an effective visual and lighting screen between the SES and propertieszoned for residential use, unless waived by the Board of Adjustment or otherauthority having jurisdiction. Existing buffers along an SES perimeter shall bepreserved when reasonably practicable.(g) Protection of Farmland And Revegetation Of Disturbed Areas1. Compaction of soil associated with the location of roads and installation stagingareas for Intermediate and Large Scale Ground Mounted SES on land zoned foragricultural use shall be minimized to the extent possible. Compaction of soilassociated with the location of roads and installation staging areas for all GroundMounted SES on land zoned for agricultural use that are classified either as primefarmland or farmland of statewide importance shall be avoided to the extent possible,and the soils shall be de-compacted as part of the decommissioning process.72. Upon completion of construction and installation of the Ground Mounted SES, alltemporary roads constructed by the applicant shall be removed, and all disturbed5The phrase “or other authority having jurisdiction” is intended to cover those instances where an entity otherthan the Board of Adjustment or other authority having jurisdiction is empowered to grant waivers or CUPs.6A community may want to consider whether the screening requirement could be waived by the owner of theadjoining property, or whether such a waiver would be a factor but not the only factor in a Board of Adjustment orother authority having jurisdiction, deciding to waive some or all of the screening requirement.7Other alternatives may be employed to address siting on prime farmland or farmland with statewideimportance, in order to avoid damage to productive farmland. Those include, at one end of the spectrum, a flatprohibition of compaction of such soils, which would cause the arrays to be located on less productive or moremarginal agricultural land. Alternatively, “smart solar siting” such as that advocated by the American FarmlandTrust (AFT), can be employed to guide solar development onto land where it has the least impact on agricultureand the environment, and to use innovative design and construction to make solar energy compatible withcontinued farming. AFT’s Smart Solar Siting project tackles these issues and provide new resources forcommunities, organizations, landowners, and farmers to achieve the dual goals of expanding solar energygeneration and protecting farmland.KENTUCKY RESOURCES COUNCIL 7

areas shall be graded and reseeded with native vegetation8 in order to establish aneffective ground cover and to minimize erosion and sedimentation.(h) Signage. A Ground Mounted SES may include such signage as is required by law toprovide safety information, and other signage as may be allowed under this Ordinance.(i) Decommissioning. Other than as specifically approved by the Board of Adjustment orother authority having jurisdiction upon application and notice, decommissioning shall beginno later than twelve (12) months after a Ground Mounted SES has ceased to generateelectricity or thermal energy:1. If the Ground Mounted SES was a permitted use without a conditional use permit,all structures and facilities associated with the SES shall be removed within six (6)months of the beginning of decommissioning. All materials shall be recycled orotherwise reused to the extent reasonably practicable and the disturbed areas shall bereclaimed, revegetated, and restored consistent with the zoning classification of theproperty.2. If the Ground Mounted SES was allowed under a conditional use permit, the SESshall be decommissioned according to the decommissioning plan approved in theConditional Use Permit.Section 7. Conditional Use Permit Application Requirements(a) Applications for an SES requiring a conditional use permit shall include the followinginformation:1. Name, address, telephone number, and email address (if available) of theapplicant, the project owner, and the project operator.2. The address of the property on which the SES will be located and the propertyowner’s name, address, telephone number, and email address if available.3. Documentation, such as a deed, lease, or other agreement with the landowner,demonstrating the applicant’s right to use and control the property.8The use of the phrase “native vegetation” with respect to erosion and sediment control, is not intended topreclude the use of beneficial species incorporated into a project in order to create pollinator habitat. The use ofinvasive or nuisance species should be prohibited. Information on invasive species is available from the Office ofNature Preserves https://eec.ky.gov/Nature-Preserves/conserving natural areas/Pages/Habitat Mgmt.aspxMinimizing the time from site disturbance until establishment of an effective ground cover, is the essence of goodreclamation. There are companies that have developed seed mixes of Kentucky-native species intendedspecifically to assist in erosion control and soil stabilization. Cf Roundstone Native Seed, mixes. The Kentucky Native Plant Society maintains a list ofKentucky native plant nurseries. https://www.knps.org/native-plant-nurseries/For communities, landowners, and project proponents seeking to incorporate the creation or enhancement ofpollinator habitat into project buffer areas, refer to Kentucky Pollinator Protection Plan.https://www.kyagr.com/statevet/documents/OSV Bee KY-Pollinator-Pro-Plan.pdfKENTUCKY RESOURCES COUNCIL 8

4. A topographic map that depicts vegetative cover, watersheds, floodplains, andother geographic information about the property and surrounding area.5. A conceptual description of the project, including the maximum number ofmodules, mounting type (fixed-tilt or tracking), system height, system capacity,total land area covered by the system, and information about all associatedstructures or facilities such as transformers, substations, feeder lines, and batterystorage.6. A conceptual site plan including property lines, zoning classification of theproperty and all adjacent properties, existing buildings and proposed structures,the proposed location of the solar equipment, transmission lines, any associatedstructures and facilities, and substations. The conceptual site plan shall alsoidentify existing and proposed temporary or permanent roads, drives, and parking,fencing or other methods to ensure public safety, and a visual buffer plandemonstrating how proposed visual buffers will effectively screen the proposedSES from adjacent properties zoned for residential use.7. A map from the Natural Resources Conservation Service identifying primefarmland and farmland of statewide importance (if in a district zoned asagricultural), documentation from the U.S. Fish and Wildlife Service regardingthe presence any identified critical habitat for rare or endangered federal or statespecies. The application shall also contain a Federal Emergency ManagementAgency map delineating floodplains, shall include evidence of any water qualityor stormwater permit needed for the project,9 and shall contain a letter from theState Historic Preservation Office regarding known archaeological or culturalresources listed or eligible for listing on the National Register.8. Information demonstrating that approval of the SES will not result in anydisproportionate individual or cumulative environmental burden on low-incomecommunities or communities of color.9. A decommissioning plan10 prepared by a registered professional engineer, andupdated every seven (7) years, containing the following:a. The anticipated life of the project and defined conditions upon whichdecommissioning will be initiated;9The “evidence” contemplated by the ordinance could be a copy of the water quality or stormwater permitobtained from the appropriate state agency, or documentation that the agency has indicated that such a permit isnot required; or could be a notation that such a permit is required and will be applied for prior to any disturbanceof the land associated with the project. Depending on several factors, the developer of a Ground Mounted SESmay apply for such environmental permits before or after the zoning process.10Pre-funding the decommissioning of solar arrays is intended to avoid future problems with solar arrays that haveexceeded their useful life and need to be decommissioned. The prospect of significant volumes of e-waste is alegitimate matter of concern that is avoided with proper planning during the permitting of-toxic-trash/KENTUCKY RESOURCES COUNCIL 9

b. The estimated decommissioning cost, including removal of the SESand related foundations, pads, underground collector lines and roads, andthe salvage value of any equipment in current dollars and the calculationssupporting the decommissioning estimate. The estimated salvage value ofthe material using current, publicly available material indices and/or firmquotes from a decommissioning or recycling company experienced in thedecommissioning of SES, shall be provided. The Board of Adjustment orother authority having jurisdiction shall consider the salvage valueidentified in computing the amount, if any, of financial assurance requiredunder subsection e.c. The manner in which the project will be decommissioned, includingprovision and a timetable for the removal of all structures and foundations,and for the revegetation and restoration of the property to its originalcondition or a condition compatible with the zoning of the parcel(s);d. The party responsible for decommissioning;e. A performance bond, letter of credit, or other financial assurancepayable to [Board of Adjustment or applicable governmental unit],sufficient to cover the net costs identified in subsection 9b and to assurethat decommissioning of the site can be achieved by a third party in theevent that a permittee defaults in that obligation, which financial assuranceshall be provided prior to commencement of construction;f. A copy of any lease containing specific agreements regardingdecommissioning with the landowner;10. Proof of adequate casualty and liability insurance covering installation andoperation of the SES;11. A description of the measures that will be taken to minimize erosion andsedimentation, and to promptly stabilize and revegetate disturbed areas withnative vegetation.1112. Where the applicant for a Conditional Use Permit is also seeking aconstruction certification pursuant to KRS 278.700 – 278.716, the applicant maysubmit a copy of a complete state siting board application and site assessment11The use of the phrase “native vegetation” with respect to erosion and sediment control, is not intended topreclude the use of beneficial species incorporated into a project in order to create pollinator habitat. The use ofinvasive or nuisance species should be prohibited. The Kentucky Department of Fish and Wildlife Resourcesmaintains lists of such species.Minimizing the time from initial site disturbance until establishment of an effective ground cover, is the essenceof good reclamation. There are companies that have developed seed mixes of Kentucky-native species intendedspecifically to assist in erosion control and soil stabilization. Cf Roundstone Native Seed, LLC, Upton, rol-mixes. The Kentucky Native Plant Society maintains a list ofKentucky native plant nurseries. https://www.knps.org/native-plant-nurseries/For communities, landowners, and project proponents seeking to incorporate the creation or enhancement ofpollinator habitat into project buffer areas, refer to Kentucky Pollinator Protection Plan.https://www.kyagr.com/statevet/documents/OSV Bee KY-Pollinator-Pro-Plan.pdfKENTUCKY RESOURCES COUNCIL 10

report meeting the requirements of KRS 278.706 and 278.7008 in lieu of theabove requirements of Section 7(a)1-7.(b) A conditional use permit issued by a Board of Adjustment or other authority havingjurisdiction shall include, at a minimum, all applicable requirements of Sections 6 and 7 of thisOrdinance, and any additional conditions deemed by the Board necessary or appropriate pursuantto KRS 100.237 to allow the proper integration of the proposed SES into the zone and location inwhich it is proposed.Section 8.Public Notice and Public CommentPublic notice of an application for a Conditional Use Permit for a Ground-Mounted SES shallconform to the public notice requirements generally applicable to conditional use permitapplications. The public notice and hearing requirements of this Chapter shall be in addition toand independent of any local hearing conducted pursuant to KRS 278.712.KENTUCKY RESOURCES COUNCIL 11

Kentucky, the Kentucky Resources Council has developed this Model Solar Zoning Ordinance to . and plumbing codes. Section 4. Conditional Use Permit Requirements and Allowed Uses4 P: The SES is a use that is allowed in the district without the necessity of obtaining a zoning