Board of Zoning Appeals - Regular Meeting

I support I wasn't the only part.

Yeah, I appreciated that. I got off track.

Okay. Now for vice chairman. [laughter] Yes, Mr. Bault. that now standice for all. First item needs all ready. There he is.

President All those in favor.

Yeah, I know. Now the other business is with our Mr. Okay. I am going to challenge you a little this morning.

I'm not going to give you a test or anything, but I'm just gonna try to I'm gonna try to uh we're going to talk about three main topics in training. Try to we're gonna try to elevate uh what we do a little bit. partially just because we should and partially because you may have some more difficult cases this year. Uh yeah, so you may have some and I'm going to try to get you ready for that so that it's easy and uh that's that's part of what I'm trying to do uh today and then I'm going to talk about uh just some major things I always want you to remember that you've heard before and then I'm going to talk about a couple new cases that were pretty insightful. So if you look at page two, points of emphasis, this is where I'm going to spend most of my time today. Uh we're going to talk about findings of fact, variance of use, and special exceptions. Those are our three main topics. So on findings of fact, it's just important that we understand what the law requires of our findings of fact. And so the law says that findings of fact must be specific. So when do you make your findings of fact? Believe it or not, you make your findings of fact when you make your motions. And so a proper motion is not I move we approve or I move we deny. It is I move we approve because and you go right to the factors. Okay? Or I move we deny and you go right to the factors. So today I'm going to talk about the art. I call it the art of making findings fact. Uh it's very very important. If somebody comes in at, you know, somebody comes in and they say, "Look, I need relief from this setback. I'm three feet over, you approve it, it's not likely at all that anyone's ever going to dispute that and that case is going to be appealed." It's going to go up to the court of appeals and the court of appeals is going to say, "I want to take a hard look at these findings." So most of the time in

what you do, we don't worry about this much, but I think in 2026, we're going to have a case, at least one case, you, somebody might be looking at it pretty hard. So, I want you to be ready. We're going to talk about that. So, you can see in the Riverside Meadows case, the court says, "Look, your findings must be specific enough for us to know why you decided what you decided." Okay? So, that's really the fundamental reason why we have to be specific. The Carlton case is a case kind of a siminal case or a really important case that all BCA people know and that is they said look if you make a finding and you just restate the factor. So if you say well I move we approve this because it's not injurious to the uh uh safety morals public health and it doesn't have any negative impact on fair market value and uh you know otherwise I just Okay, that's not good enough either. And that's what a lot of BCAS think, not just you guys, but all the BCAS I work with, they think if they just read the factors in their motion, that's enough. The courts say no, that's really not enough either. Is you have to say why. And so when you make findings or when you make a motion, and I've written one out for you a little later, you'll see how to do it. We have to be as specific as we can for each factor. Why you think what you think? Now, I would tell you that if we had a case go to appeal, and I've handled those before, uh, not just your motion, but all of your discussion and the staff report and any information presented to you by anyone standing at this mic, that's all something the court is going to look at. So, your discussion helps you uh because I can point to and say, "Well, judge," and they didn't say so in the motion, but Mr. Clamrock said at

this portion of the discussion that he felt this way because of this and that's the why and on this factor you know Mr. Hendrick said this about that and that's the why and the courts will let me do that. Okay but it's better if we just put it in our findings. So you'll see there what are the keys to making finding the key the first thing is uh ask questions and then I don't want you I want you to underline these words okay these three words about the factors so typically it's you know curiosity killed the cat we hear about these cases and we have all kinds of questions about what's going on and we ask questions and that's fine but we also need to make sure that we ask questions about the factor. So if you say if this guy says I'm going to build a pole bar and I'm going to do this and we say what are you going to do in the pole bar and he's asking for relief from setback that's not really relevant I don't mind if you ask and you I remember one case we had early on was the guy was kind of woodworking shop in there and we asked him some questions it was fine that's not going to help us we need to know why does it have to be three feet in the center why can't you just move it because Okay, that's a good reason. Okay, I get it now. So, ask questions about the factors. Otherwise, the reason that we ask questions either of Mark or the petitioner or sometimes responded sometimes is because we're then making them tell us the reasons. Okay? So, like in this case, if you said, "Why can't you put the building over there?" That's a great question. Great question. What do you think your building being closer to the property line is going to affect your neighbors? Uh, no. There's not a house for half month. I'm remembering this one case we had. Okay. Well, that that seems okay. So, do you do you think that, you know, this whole building

being 3 feet over here is going to affect property values at all? Make them tell you. Okay. ask them that question and then um you know go right through the factors. Now each of the cases you handle have different factors. We're going to talk about that in a minute. But use those as your guidelines. Okay. I like to say in training, not in a meeting, but I'll say training is if you wrote down the questions you had about a case, I would challenge you go back and look if those relate be able to tell me which factor your question relates to. Now, some of my I have, you know, Zensville is one of my clients and they're very strict and very sophisticated. You know, they operate at a pretty high level and inevitably I just keep I keep notes that that question does not relate to any of our factors. And I have one one member who and she's a lawyer and she's the worst at it. She wants to know I swear to God if it's a restaurant, she'll say, "Well, what's going to be on your menu? because she can't help herself. Apparently, you know, she just can't help herself. It's completely irrelevant. But, and are you going to have a drive-thru? Now, when you have you can have one of those double doesn't matter, right? Doesn't matter. So, you might just check yourself. Does my questions that I have that I'm going to ask, do they relate to a factor? If they do, great. If they don't, then don't look my way when you ask because I might be. Okay. The second state why the facts either support or do not support the like I mentioned earlier. It's what I call the because u the granting of this variance will not injure you know neighbors or public health because it's really not that big a deal. It could be that easy you know.

Um, so those are the two kind of guiding principles about asking questions and then making your making your your motion fit. Uh, and then I I've written you one. Okay, it says you know you see a compliant set of findings effect will look like this. You'll notice that I put in bold the word because. So in this case, you know, I kind of use this small variance two feet will not be injurious to the public health, safety, morals, general welfare because the land to the rear of the subject property is undeveloped woods and a variance will not affect. Simple, right? The approval of variance from the rear setback by a distance of two feet will not affect uh in a substantially adverse manner the use of the value of adjacent property because the variance is nominal and there's no adjacent property likely. Three, the strict application of turns result in practical difficulties will result in pract because moving the house to the front of the lot will cost more due to unusual topography. you know they move more dirt. Now you remember for a variance from a development standard practical difficulty as a standard what does practical difficulty means? It means difficulty and or it could just mean it would cost more money and that's okay. practical difficulty on variance of use the standard is not practical difficulty it's undue hardship I'm going to talk about that's and that's a really high standard but practical difficulty could mean I remember when I built my house my builder said which side do you want your garage on and I said oh that's and he said I wouldn't do that why he said I have to bring to fill in over there this entire you wanted the higher end I really did course he was right he built houses So I said, "Well, how much more would it cost me to put the garage on that side?"

He said, "About 30,000." I said, "Okay, that side of let's move it over there. That'll be fine." And now that I've lived there 30 years, I'm really glad it is where it is. I just couldn't see what he could see. But that's what I had was a practical difficulty. I did not have an undue hardship. I didn't had a practical money. But that is what So when you make a motion, you would say uh You know, I move we approve the variance uh for the following reasons. One, two, three. That's what your motion should look like. Yes. Right. I have a whole section coming up on undue hardship. So, if you'll just hang in there with me. An undue hardship means that you can't put the land to reasonable use, that you can't use it. That's really different as you can see. Um well the best example would be because you're talking about a use variance. Okay. So use var now some some of my clients have necessarily hardship for variances but it would be like um the minimum square footage we allow is 1,800 square feet but because of creek running through the property. There isn't enough space to really build a house that big. They want to build a 1700 foot house. They can make that work and satisfy Mark's drainage requirements. So, they come to you and say, "I need a variance

because I can't build an 1800 square foot house because of the things going on my property." That's different. That's not because I just want a smaller house. I want to save money. because I'm not I can't I can't do it and meet all these other requirements. That's that's good. Yeah. Um so let's talk about unnecessary hardship. Now in your ordinance, the only time you'll see undue hardship is on variance of use. And variance of use is a little weird thing because if somebody, this is when somebody comes in and says, uh, I want to put a um I want to put a waw wa in a residential area and you're like, "Oh, can't do that." Yeah, but I really want to do that. So, they have two choices. Wawa, I've dealt with them. They seem like nice people. Waw wa can reszone it, right? Or they could ask for a variance of use. And it's their choice, not ours, but they have to if they reszone it and it's commercial, then they can put the wall up and uh want to use variance, then they may just say, you know, I think I'll just try for use variance. Now, why why do they do that? Well, here's the why. If they re try to reszone the property, they have to go through your plan commission and then go to your county commissioners. It's a longer process and and it's discretionary, so they may not know what'll happen. But a variance of use faster and they may just feel like they have a better shot with you guys. You know, you never know. I see this all the time. Now, if I were the petitioner in a case like that, I would say, let me tell you why I'm not reszoning this because if I don't end up developing this, you don't

want this to be commercial. I'm saying just make it just make it for us. A good example would be something we call a neighborhood commercial use like Starbucks. Could be Wawa, dry cleaner, something that the people all around it would use all the time. Neighborhood commercial is something you see this a lot. But if you get there, they're going to have to show unnecessary hardship. So what is it? So as you you can see there at the top of page three, there are five standards a little harder. Number three, the variance arises from some condition. peculiar to the land. So that's a creek running through the property or something else. Uh strict application of the terms of the zoning will constitute unnecessary hardship and unnecessary hardship is the strictest standard. So if you go down to C, you'll see the definition. When all facts are taken together, the property cannot reasonably be put to a conforming use because of limitations imposed by the zoning ordinance. Courts have interpreted that to mean you can't yield a reasonable return. So, the Beaver Gravel case is interesting because the Beaver Gravel case is a new case out of Noblesville where it was a it was an a area and the Beaver Gra Company. Guess what they want to do? They want to mine it for gravel and uh the neighbors really didn't want that. They really didn't want that. So, you'll notice there's no in the name of the case there's no municipality, but I can tell you the city of Nolesville Valdeovich was a neighbor and Valdovich sued saying, "Oh, by the way," and the

and the BCA uh granted and the neighbor said, "Look, there's no hardship here. They could use it for a you can make a reasonable rate of return on a people do it all over the state of Indiana." And and the court of appeal said, "That's right. There's no unnecessary hardship there. Just because you can make more money using it as mining for gravel does that's not the test. That's practical difficulty, right? Hardship is can you get a reasonable rate of return on this property if we don't grant this? The neighbor said yeah I could stay a farm and the court of appeal said that is exactly what we're talking about. The neighbor understands undue hardship. The BZA did not. It's really a strict standard. The next case I talked to you about is a case UDICA. In this case, it was uh you know in the suburban areas you see a lot, but think about View down south of town. Now they're building all those houses. And so what the fire department wanted to do is they wanted to buy lot number one and put a really small fire department there called a substation. They want to put that there and all they needed there was already a house there. So they bought the house and it was going to hold two firefighters at a time and most houses couldn't handle that and then they just built this big garage that could handle a small fire truck. Well, they didn't ask. So of course somebody came along and said, "Uh, this is a residential district. What do you do?" And they went to the planning department and they said, "Can't we have a fire department there?" And they said they had to file for use. They could have reszoned it, but they they apply for a use variance. Now, again, if it were me, I don't represent people who appear before BCAS and commissions. I'm on the other side of the table, but if it were me, I would have said you have to resone that

property because you're never going to be able to show what you because we know the house can be used for a house and you can rent that house and you can make a reasonable return. And in fact, using as a fire department, how much money you make on a fire department. And so in that case, they said there's no hardship. Just because you can't use the property for what you want to use it for is not a hardship. So you can start to see how difficult it is. The only cases where somebody's going to be able to show hardship is they're going to be able to say, you know, I can't use it for residential because it's in an you know, the airport plan says I can't build But they'll let me build a warehouse. They'll let me do a warehouse as long as I don't put in a detention at that. And that would be undue hardship. I'm not allowed to build a residential neighborhood here. They don't want uh they don't want residences. But believe it or not, airports, they don't mind warehouses all around them. They just don't want residences. They're afraid a plane might fall in the sky and run into those houses. The other thing is why don't they like detention? So they don't want any detention or retention ponds anywhere near an airport. I've got clients who do that. return. And so what the courts have said is uh it's really can you make any return. Remember every piece of land that comes

forward in a petition like this already has some use already being used for something. This gravel case for example been used for egg. you can make a return on egg. Most years, maybe not every year, but this year, you know, maybe not every year, but in the long term, you can make a reasonable return. So, it's not about rate of return, not ROI. It's just, you know, or even a residential property has reasonable use. Even if I live there, I'm getting use of it. I'm not making any money. Seems to just cost me money. But, so I talk about that because that is a high standard. So, you have a Let's say one night you have a variance from a development standard two foot setback like I talked about before that's easy really pretty easy practical difficult then somebody in the same meeting comes up they want a variance of use that's a big hill to climb and we need to know that we need to expect them to tell us why it is. So if you look at those five factors, the first two are are kind of the same that you see in a variance for a development standard, but three, four, five, you know, does are not the same. So So you would say what is the condition peculiar to the property that makes this unusual? And then they're going to say these words to you. They're going to say, well, your ordinance is the peculiar condition of the property. Say, And that's of course that's not that's not a condition to your property. Typically it is something you can't overcome. A river runs through my land. Uh there is soil I can't use soft soils or something like that. There's a big woods there and I really don't want to take down that woods and that's the condition peculiar. There's a g I had one where gas line ran

right under. That's a hard one to me. is very hard. And then five requires a whole different level of thinking because the approval does not substantially interfere with the comp plan. Well, the comp plan is like 60 pages. That means you're going to say, well, how does, you know, for example, how does the use of this land in mining, how is it consistent or inconsistent with the comp plan? Can you tell me what part of our comp plan you think talks about this? That's that's the question you ask. And do you guys have a copy of the plan? Mark, can you send it to you're going to need it? You're going to see why in a minute. You're going to need it. And I've done a little homework for you to make it easier. But it is it addresses a lot of things a lot of things that you have to kind of Okay. And you'll see uh number four, you'll see that the fact that a teacher can make more money is not enough. That is not enough. And that's what they'll tell you. And you'll say that's great, but that's that's not really what we're looking for. So that's a really high standard. I've seen it a couple times where it was granted properly, but most variance of use cases are denied and then when you deny it, if you deny it, they can then go and file a reason, which is what they should do. And and the standard for that's a little easier actually, just a little bit of a bigger process. Okay, let's talk No,

no. There are bits and pieces the comp plan they could say, but no, I would say no. And and it's just it's too busy, too much traffic, too disruptive. Uh it's they're not really designed to be there. They're designed to be on corners of major roads. That's where they go. Sometimes they don't want to be there because that's the most expensive land there is on the corner. And if they go down the road a little bit, It's a lot cheaper there. So, see that special exceptions special exceptions are really hard. Now, what happens is you might ask yourself, well, what the heck is that? So, when we, you know, we put our zoning ordinance together, if there are uses that the county commissioners are worried about, oh boy, I don't know. These are these have impacts. Then we generally require those to not only get res but to also come before you where you can take a good hard look at it. And our whole thing is we we want to minimize impact. So your job is to either say no to the special exception or to say yes with conditions and make sure that they do some things that mitigates the impacts. So I listed currently in your ordinance there are eight things which require a special exception and as you start to look at them this will start to make sense to you. Chemical manufacturer. Yeah, we probably want to know a little bit. We need to know some details about what chemicals, how you going to handle them, what are the what are the uh the safety risk if you're handling this. Um chemical manufacturing is very high risk. Don't believe me? Ask people in India. I'll tell you um fertilizer

manufacturing nitrogen has a tendency to and storage. So, we want to make sure that's all being done the right way. Sanitary landfills, right? Testing towers, meteorological towers, waste transfer stations, wind energy. Again, the county commissioners aren't very favorable about wind and they would want to have a reason first and then they'd have to want that applicant to come to you. Make sure we're not hurting the neighbors. turbines. Carbon sequestration recently added when that was added. Carbon sequestration can only be in an industrial district not likely to be an industrial district now. It's likely to be reszoned from a to industrial and then it would come to you. So you can see all those things have impacts. Um so the criteria then is long. You can see we're used to the we have seven well I call it six plus three. We have nine factors to look at on a special exception. So the first one is is it listed as something that needs a special exception? That's the only thing you're going to see. If it's not listed in our zoning ordinance is requiring it then you can't get one. So I'll give you a an example. Data centers our ordance which just passed Monday by the county commissioner says you have to reszone that but they did not require a special exception. They could have but they chose not to. Um and the truth is there are some impacts but the commissioners are going to handle that during the reason process power. Um and then number two is not injurious which is something you have in all your

other cases. Three, impact on property values. Again, a factor you have in the others. Adequate services. The site will be adequately served by highways, sanitary, water, whatever. Negative community impacts. Granting the special exception will not create excessive addition requirements at public expense. Um, six is if they've been denied, they have to wait a year. And then seven are the tricky part, supplemental considerations. So the ordinance says, "Oh yeah, and by the way, when you're doing all this work, BCA, also think about these three things. First, in what respects does it meet the standards of the zoning ordinance and is compatible with surrounding uses?" So this is compatibility. Is it compatible with what's around it? So you have to look around see what's around it. Secondly, the method by which the special exception makes adequate provision for public services and that could be vehicular traffic, further amenities of light, air, recreation and visual enjoyment. I'll give you an example. When Valero was built, had we had zoning, we would have a super highway going from 231 to Valero because that is Mark, can I use the word not adequate for the traffic? Yeah. And we would have required Valero, I'm not picking on them, but we would have required Valero to build a staging area for their trucks. They really didn't. So, what do they do? They back up all the way down our county road a mile sometimes. Not really what we want,

but we didn't have planning. Had we had it and they needed a um and they need a special exception. A good good set of questions would be how are you going to handle this truck traffic? How many trucks a day do you expect? Where are you going to put them? Where you going to stage them? How how long is it going to take it to get through? And have you made plans for that? And you could have made them do a lot more to handle that problem. Um light air, clean air. Like again, one of some of the questions we would have asked Valero is what are you going to do about emissions? What could we expect there? And of course, they're regulated by the EPA, but we can still ask questions. Um, and then C, whether the proposed special exception is in accordance with the general objectives and findings of the complaint. See why you're going to need and I will tell you, I did this little exercise. You'll see in a minute. I did an exercise for you. And it took me about 30 minutes to take my hypothetical and look at the comp and I found like seven or eight references that it's a little bit of work.

See again they're they're grandfathered with their youth but they they asked for tax abatement. So the county has asked But from a zoning perspective, they're already grandfathered. They have their right to do what they do. You for an existing use, we can't take that away from them. But as a good neighbor, we can ask them to. Now, they do I will say this, they do, we asked them several years ago to tell their customers to come from the south. And they do do that and they do help with that. That moves the problem to a different place. But the INDOT really did not want those trucks parked on. So you have to remember Yeah. Remember somebody's there, they have vested rights. We can't deal, we can't do anything with them really. You're right. and and it's a really important business, you know, provides a great market for our farmers. So, we we we we want to have a good relationship with them. But yeah, it have been a completely different story. Same with Newore. I

mean, new um they've been great for us, but if it had we had zoning, it would have been things would have been a little different. You would have seen you wouldn't see as much of Newport. There would be these huge pine trees all around it. Things like that, you know, visual would have been different. We're fortunate there. We ask We have seen plans for a new study. We we have we have asked nicely and they've been great so far, but they they've heard us and I think you'll see some changes there. Okay. The other thing at the bottom of page four, you don't have discretion on a special exception. So you you have even if on a standard on your two variances you have if they meet if you think they meet all the criteria you can still say no long as you have a reason long as you have a reason on on special exception if they can check all these boxes you have to say yes it's a nondiscretionary there is discretion as long as you have facts that support your discretion. So if you say, yeah, for example, visual, if you say, well, I just don't think this is not mit, you know, screening out. You can do that, but yeah, you can't just say, well, you made every

You don't have to prove anything. Okay? They have to prove it. They have to prove there's no and then now let's say they bring an expert. Let's say they bring some guy from Purdue in an egg economist who says you know the placing of a solar plant will have no adverse effects on a values. I'm the expert in the United States on egg values and I can tell you it's and then um a farmer comes up and he says I live right next door and I can tell you what that's going to have an impact on my farm. Can you take what the farmer says? Yes. The law says every landowner is entitled to his opinion about his own value. Now what remmonstrators will often do is they'll bring a realtor with them who say that. But the law says every who owns real estate can say, "I think this is going to hurt the value of my house. I think this is going to hurt the value of my farm." So, so but it's not your job. It's their job, somebody else's job. Someone standing here at this day is to convince you or give you facts. Now, what if the facts are in dispute? So, what if the expert witness from Purdue says no impact and I conducted a study and blah blah blah and you've got a realtor, you've got Morrison says, "I've been doing this forever." And it's probably how he say, "I've been doing this forever, and I can tell you it's gonna be terrible for a house. And if you got a house out here, it's going to be worth." Can you choose who you believe? Yes. Greg didn't do a big study. Got this guy. He's an expert. Can you choose? Yes, you can. You are like judges. And judges always get to choose who they who they believe. Okay? So, you get to do that. We tell you, quasi judicial is your job to hear conflicting information and decide who you believe. That's not exactly discretion probably like you

mean it, but that's that is part of your role because sometimes people will disagree. Now, if you have a controversial case and you have 50 people in this room and they're all they all have different opinions, you will decide. You will decide the facts. Nope. You You can ask Mark or me questions, but you can't they won't let you take a break because they're convinced we'll go back there behind that gray door and we'll decide the case back there. You can ask questions and you can even ask the the people who said something questions and um you can ask Mark, you can say, "Mark, you're our planner. What do you think about this issue?" You can always ask us, "We we can't tell you what to do, but but we we could clarify things." Or you could even say, you know, I had one I had one member once say to me, um, well, there seems to be a real dispute of this. I'm not sure. I I am convinced either way. Well, the petitioner has the burden of proof to convince you there's no in that case they said I don't think you've met the criteria because you haven't shown me there won't be a substantial effect and that's legal that's fine. That's a tough case. But in there are a lot of cases these these uh lately in Indiana the solar farms these thousand tens of thousands of acres solar farms have created a lot of things where the neighbors have said this is going to kill my fair market value and despite the seven experts that the solar companies bring in from all over the courts have said that the BCA can rely

upon whoever they think. You don't have to be an expert and also the law says that you guys are experts in this one reason we do this training but but you all do know you all buy and sell you all know what land is worth you all know you know it's not like you were dropped yesterday on the earth so if you've ever purchased or sold real estate you've got some information and if it comes to egg real estate you guys have some information on that too And that's good. That's good that you have that knowledge. Um, okay. If you go to page five, we're going to keep talking about this, but now I'm going to apply it to a set of facts. Let's just say hypothetically that you have a carbon sequestration case for you. You might It's allowed under our zoning ordinance. Carbon sequestration, as you might know, is the injection of liquid carbon dioxide into the earth a long way down into the earth. And it is used by high emitters of carbon to they have to deal with their carbon. So there's now a process where that carbon can be captured in the stack, liquefied, sent by pipeline somewhere else. And where it's sent to is companies have decided, you know, we can pump that in the ground and it's it's a long way down. It is long. I don't understand the uh I don't understand the technology exactly, but if you think about it, it's like what they do in fracking is they inject water, right? But they are going deep enough that they do not think there'll be catastrophic impacts. And so we are in an area where we have

at least two pretty large carbon emitters. And um we have one case which is currently being considered for carbon sequestration. And so if they are able to get that resone, they will be here for a special exception. Now you may never they may not get their res. If they don't, you'll never But if they do, their next stop will be you. So I want you to be ready. Okay. Now, I'm not going to tell you anything about the facts of that case because that would be inappropriate. So this is all hypothetical. So I can't answer questions about a lot of it. My job is to get you ready for what you have to start thinking about. Okay. So now let's go back through those factors. How would you apply those factors to a case involving carbon sequestration? First of all, is it a listic exception? You already know the answer to that. What is it? Yeah, it's right there on the page of prayer. Yeah, not good job. Yeah, not injurious. So, again, you're going to want to ask questions about uh look, you're going to be injecting liquid CO in the ground, so are you going to have what looks like a oil well out there? Yep. Okay. Are there safe safety concerns in drilling liquid CO2 in the ground on the surface? Are there are there concerns? What about under the surface? What should we be worried about? Now, I will tell you that the this process is regulated by the EPA and it is also regulated by IDA, Indian Department of Environmental Management and there are lots of rules. They have to get a federal permit first and then permit and I have Mark and I have had to spend

some time in this. It's a very thorough application process for those permits particularly the federal. So they have to submit a lot of information to them and so by if by the time they get to you they'll either have their permit or they won't but they will have already submitted everything to the federal government. So there's going to be a lot of information available. If you say tell me about public safety, they will talk to you about that. What are the public safety risks? What are the risks? Is CO2 flammable? Yes or no? What is the big biggest risk? Is there risk of fire, explosion, all the normal things we think? What about noise? What about lighting? How big is this place going to be? How big is this thing going to be? How high is it going to be? all these things. So, in this case, public health and safety are going to be the things you're going to want to ask questions about impact on property values. Here we go. Now, it will be their job to come to you with some evidence that this will not affect property values. These sites are generally across the country. They are generally in the middle of nowhere. So, I doubt that it's going to be very close to anything, but we still need to look at that. and then think about how will it affect land and how will it affect residential properties and they're going to have to show that and so again you should ask them what is your opinion about how this will affect real estate values they'll probably have a big study for you okay and then the neighbors will also have their opinions and they may bring realtors if they want to remmon because they are typically far away from everything. We're not sure how much responses we'll see from

neighbors. That's safe to say, you think? I think that's safe to say. But in addition to that, in every case like this we've ever had, whether it be wind or solar, you will have people from the public come in and they all have opinions about environmental impact. We all do. So, be ready for that. Adequate services. Um yeah, what what is the site access? How do you get there? What kind of traffic are we going to see during construction and after construction? Uh my guess is they are kind of like an oil and it is pretty quiet there, but I don't know. We need to ask about their operation negative community impacts. So in the in the um factors it talks about this. This relates to economic welfare of the community. Uh the destruction or loss of natural, scenic or historic features of major importance, I doubt that'll be involved. But now in the economic welfare of the community, if I'm the petitioner, and I'm not, but if I were, I would be coming in saying, let's just say they're going to take CO from I would say This is how Valero thrives in your community and provides a good market and lowers their cost of operation. And so this is good for your local economy. And I think you're going to hear that. Okay. Any of these carbon capture programs, whether it be Newore or any other large carbon producer, they're going to talk about how what they're doing is going to help your economy. And from an economic standpoint, they might be right. to present you that evidence. Um, one year sent to denial. We've never had a carbon sequestration request yet,

so you know that won't be relevant. The supplemental conditions here get a little harder. So, the first one on compatibility is yeah, is it going to be compatible with what's surrounding it? Now, again, you're going to need to learn more and ask about operations to know what you're dealing with, but it may be a low impact thing. If you've ever been around an oil well, they really aren't that impactful. So, if it's like that, it's a small footprint and it, you know, doesn't if it's maintained right, you don't even smell the oil very much. You know, it's maintained. Southern Indiana in Illinois, we have a lot of that, right? Exactly.

My friends in Pennsylvania would say, "Yeah, that's a problem." Well, you know, you've heard the line, I'm from the federal government. I'm here to help you. But in this case, yeah, they they are heavily regulated under what appear to be the two largest concerns environmentally. One, groundwater. exactly what we're talking about. How do we avoid the results that fracking had and secondly seismic activity? The other thing that cameismic activity so um and I went to school out in Pennsylvania so a lot of my friends who were attorneys had to do with all that fracking. Um, I think what they will say is number one, we're going much deeper than those frackers. That's what they tell you. And secondly, they will say that they uh in order to get their permit and maintain their permit from EPA. There will be groundwater monitoring wells all over the place, not just on this site, but all over the plume area, which Mark is estimated to be a mile from there. So in order the federal regulations require them to install groundwater monitoring wells to be able to show us that there are no negative impacts and if they have a

measurement that succeeds then they take measurements and notify the EPA and so it's heavily regulated um heavily regulated and so you they will present that that's something you should ask what about groundwater what are you going to do and they I know they will tell you because have to submit an entire groundwater plan to the federal government EPA and so they'll tell you about all that but I know that I've not seen it but I know that the regulations require a really intense groundwater monitoring plan that has to be executed same way with seismic activity big concern is after fracking was are people's houses sh what how's this really going to impact so you'll also You should ask them to talk about that. Um I think I think what the industry says is um no seismic activity that anyone will notice might be measurable by a geologist measurable but nothing that would would happen. Again all of that is regulated under their state permit. So the the good news for us on the local level is that we have a lot of help on environmental impacts. Does that mean is nothing bad will happen? No, that doesn't mean that. But at least it's it's very diff going to be very difficult to get these. Um and in fact it may come one of the things about I know that Steve and Tom will know this but those of you not playing commission you may not know this. I'm going to But so when the when if they if they're able to successfully reszone the property, one of the conditions that I would expect would be imposed is you've got to get your permits because our ordinance

requires they have their permit before they move they move anything. They nobody has nobody in McGomery County has a permit for one of these. But it may be that it get if it gets a reszoning approval it may that may happen and they come in they may get a approved from you and it still may never be built if they can't satisfy the EPA and it's a tall order. I've reviewed the rags. It was not the most fun I've ever had. When we drafted ordinance, we had to say because we drafted it and they said we were concerned about groundwater. So, I had a whole section in there about ground water, what I wanted. And they said, "Hey, I I think I think if you you know, you've got one page here on groundwater. I think if you look at the PH regulations, they're like 160 pages and you might just want to refer to that and so we did exactly theirs were much stricter than even what we would do. So that's a great question. You should ask questions about all that all of that. Make them prove to you be from Missouri. Show me show me that you've got it all under control. But we are not we don't have to be the environmental gatekeeper I guess is what I'm saying which is I'm really glad about because that's not true always um you know we get a little help on we have really no help on wind and solar at all from the federal or state people uh kayos confined area feeding we do get some help from IDM on that actually a lot we just deal with situs and they deal with all the environmental impacts so I'm what I'm glad to say is I'm glad smarter I'm glad they're real environmental engineers, geologists, people a lot smarter than me who have come up with a way to try to protect the environment, make them jump. Okay. Methods. So again, you can ask them specific questions about all these things. I talk about light, air, recreation, raining a little bit. Is it

snow? It's snowing now. Great. Great. I'm so excited. Um comprehensive plan. So you flip to page This is where you can This is where I did your work for you. You can thank me later because it was fun. Let me tell you.

Yeah. My wife sent me a text. Where are you? And I said, I'm reviewing the coverage of plan for coverage. You know, she does. But anyway, I just I let her know. But in going through this, I went page by page. Okay. Does it say anything about carpency frustration? Did you say anything about That's what I did. And I found some things. So, first of all, on page 17, It lists what we don't want. I'm so glad that's in there. By the way, on page 17 in a box, so it's highlighted for us in this little box here. It says undesirable land uses, industrial windmills, wind farms, industrial solar farms, commercial confined animal feeding operations. We don't want them. Now, we can't stop them, but we don't want them. Uh landfills, junkyards, government subsidized housing. We don't want them. Hazardous waste management facilities, adult entertainment, heavy polluting industrial and waste transfer stations. Well, you'll notice carbon sequestration is not listed there. So, what is that? So, that tells us well, it's not on the ter never do list. So, maybe we're we're going to think about that. Preservation of a land is a big theme big theme in our comprehensive plan. And our comprehensive plan basically says we have a lot of the most valuable egg land in in the in the United States and we'd like to keep it that way and we're going to do what we can to not uh lose that that valuable asset. And so again, how does that affect this? Well, this to me is where how much area is this going to take? This I can tell you probably less than 10 acres. the footprint on these sites if it's depends on number of wells and I don't know how many wells will be involved but generally it's smaller than 10 acres and that would seem to check the box for

okay it's not an egg use but it also is not going to take up you know like Palasky County it's not going to take up 13,000 acres of a right so that's kind of a positive one um increasing economic activity I skipped because I already talked about that but just coming back we we like things that increase economic activity. And so this site in of itself doesn't, but it assists it may assist one of our major employers or economic engines. And so that's something you have to think about. Number four, impacts on groundwater. John, you're ahead of yourself again. Look at see you're going to get a gold star. Impacts on groundwater is a factor discussed in the plan. We want to protect our groundwater. We don't want anything that's going to affect our groundwater. People are picky about their water and they don't want it to be able to be lit and burned in your sink. And I knew a guy that's what happened to him. So we don't want that. So what and you can see I wrote down you know I wrote like what questions could you ask? What are the impacts of this project on groundwater? So one of you should ask that question. I've written it for you right there. Uh what monitoring will the operation conduct? See this is this is me showing you in a hypothetical five. property values. What impact will this have on property values? And they have to tell you. And then uh and and the protection of property values that's on page 33. I put the page numbers on the comp plan for you. So when you get it, you can check my math and you can say well Dan said page 31 33 33. So these are important issues. And then the sixth one was ensuring and I like this one. Ensuring that future development decisions do not detract from the rural character and agricultural success. That is a specific goal of our entire plan. And so the question is will approval of this project detract from

the rural character or agriculture success. And I think what a petitioner like this would say would say no. We are using a really small area and it's actually going to help your farmers because they're going to get better prices at the market or or somebody or the vendor is going to make more money. One one of those two things will happen economically, but it will and it's likely to likely uh first of all it's likely to if if it's Valero for example that's being held, it helps them be sustainable and stay here longer. It probably helps farmers get a better Right. And so it's not just Valero, but if it benefits all of our local farmers, this is the argument they're probably going to make. And so that last factor on page 49, we'll need to ask questions about that. Now, for each use, where we go in the comp plan is going to be different, but but I was looking, let's just say we have a carbon sequestration case. What in the comp plan looks relevant to me? So, we can that last factor and you'll remember the last factor on page four is whether the proposed exception is in accordance with the general objectives of the complaint and the only way for us to know that and to know the questions we should ask is to look at the compl this this question is the one nobody talks about and it is the one that everybody should talk about mostly comp plan is not a law, but it is a a vision of what we want in our county and we spend a lot of work on. We do we renew it every five years. We did one in 1924. This is pretty fresh and we'll we'll have other versions.

What the public told us when we did this is protect our equity. So if you think about what you hear about data centers, solar farms that exceed 10,000 acres, that's why those are not favored uses because we're never going to replace that. Now, does that mean we're right about that? No. That's just our position. That's just what our committee decided. You could go to Boone County and they obviously have an entirely different point of view about their egg right now, right? I'm not saying we're right and they're wrong. I'm just saying that that's our vision. And so you as the BCA are bound to look at that and say, "Okay, what does the comp plan say about about this?" Yep. Exactly right. You're So, yeah, they are required by law. You can't have zoning unless you have a comp plan first. They don't want us to be shooting in the dark. So, the law says you have to have comp plan first, then you have to have zoning. J County tried to have zoning before having a comp plan because they were hurrying because they wanted to put in the landfill and their whole ordinance So the courts they said but I'll I'll paraphrase for you. When we say you have to have a comp first and then have zoning we mean it. You know so yeah you have to have it. They're all public and you're right they shop around. Now it's interesting. So what are they looking for? You're right. They want to go somewhere where carbon sequestration is not on the naughty list. We have a naughty list. They're not on it. and they want to go somewhere. When they

look at the zoning ordinance, our zoning ordinance is not so obviously against it that they might have a chance. And I'll come back to that in a minute. And they want to they need a carbon producer. So like, you know, Gary, you know, like Newor obviously could benefit from a carbon capture program sometime. Valero could and there may be a few others, but those are probably some of the bigger ones. Um, so our so what is so if they looked at our county, what I think they'd see is we're not on the on the comp plan, you know, it's not it's not it's not anti-carbon sequestration on our um on our zoning. It is not like solar and wind where you have to reszone to a special district. You you have to you have to make it industrial, but the message and you have to get a special exception. So I think the message to someone on the outside looking in would be well it's not like a it's not on the naughty list and there is a pathway and it's still going to be tough but we might be able to thread that needle. Now it's funny because if you looked at I'll just say solar you looked at solar the solar a person who is in that development field look at our ordinance and say take them off the list. But we still get inquiries and we may still have cases. I find that surprising because when we adopted it, I got calls from we were the first county to do it the way we did it, which was to say no, no, nobody is allowed to build solar wind. Nobody's going to be able to do that. And we just adopted the same approach with data center. Nobody has a right to do that. If you want that, You have to

resone to a special district for that. You have to go and our three county commissioners will make that decision and they have discretion and if they say no, you lose. That's that's what we did with them. This is not one of those. Did we say it's permitted? No, we didn't say it's permitted. We said it's only permitted in industrial and they're not going to go in an industrial area, I don't think. And then we said you have to get a special exception. So again, this is what I call middle heart. not impossible middle hard and so I think that's that's a message they do exactly that so what they do they need carbon right so you go to like some counties don't have a lot of carbon you need carbon emitter that needs help and is willing to pay for it and they will pay for it because it saves them they have to deal with that carbon one way the other it's much easier to do this than to haul it off they're going to build a pipeline to do that and then they need somewhere to put it in the ground find some land owner to let them do that. Now, if you're a farmer and you have 500 acres, it's all kind of contiguous. There might be a spot. It's all brand new technology. I don't know if it'll work yet, but it does. Solar is a little different issue because solar again, we thought of solar. We thought we knew what solar was, but then, you know, they are they are just they're thousands of acres and I would have never imagined that that's what we' be talking about. 18,000 acres of county big fight there county I've consulted with them and they've got five they have one project one that is already there they have a second one that's in approval or denial right now they've got three more that's not that big a huge I'm trying to figure out how you know seven miles wide can I drive all the way across it and not get past the

solar is it all going to be solar But we'll see. Okay. If you go back, correct unless the situs is in an industrial. Okay. If you look back, the rest of it um is you're familiar with. I just want to draw your attention to a couple of things. The the rules of what you are, I would like you to review this stuff, but I'm just going to hit on a couple highlights. Um so if you go to page 10 I have given you for each of the three case well four cases you also have administrative appeals but the four types of cases I've g you a good little primer really good little thing you could I' I'd carry this training thing with you when you come to these meetings it's like a little Bible but a little section for each of those and how they're different and what the factors are. Um, if you go to page 14, you'll see administrative appeals. And all I'll say about that is I had one of these recently, but that's when somebody, you know, Mark says if Mark says, uh, that is a structure, for example, uh, is a deck on a house a structure? It is, actually, but some people want to argue about that. And if they think Mark's an idiot, they can appeal to you. That's called the ministry. And Mark's not an idiot. So, uh, number page number 145 there or four. I've got like best practices. Uh, disqualification. I know you guys know, but if if you have a financial interest, you can't participate. You

just leave the room. If you tell me I can't be unbiased because the guy who's coming here is my mortal enemy, then just you just disqualify yourself. Recuse yourself. But in most cases, you know, we we know everybody. You're going to know people. That's not the problem. It's just if you can remain objective about it and you don't have a financial interest, you're good to go. Yep. You do. Unless you believe that you you're not disqualified automatically just because you're a neighbor. You're not. And that's the burden case. It's cited right for you. And that's enough you if you don't have a financial answer the question would be can you be objective and impartial if you believe you can and what if you know the people again the burden case which is solar out of Madison County they said look it doesn't matter if you know the people involved doesn't matter if you have coffee with them or you're a member of the same church none of that matters it's whether you can be impartial if you say look I know Bill and I know Nancy but I can I can sit here and do my job that's all we care about good Uh if you go back then I like you to go back all the way to page 23 and 23 I've already talked about the beaver case 21 which is that what is an unusual heart unnecessary hardship but 20 is also interesting because in that case this had to do with two fighting um recyclers in in the county and in that case the the uh plan commission granted use varants and then under considerable pressure from someone probably the competing company sought to revoke their approval and their lawyer even thought they

should revoke their approval. Um, but the court of appeal said, "No, there's no process for that." In your ordinance, you decide the cases and you can't later, a month later, say, "We really mess that up. We're going to reconsider that and change our mind." I will tell you, we lawyers who practice area, we did not know the answer to this question. We did not know. No one had ever heard of this before, but the court appeals took a really easy way out. They said, "The statute doesn't say you can, so you can't. So in order for BCA to reconsider a decision is made, the state legislature would have to give you that authority. They haven't given you that authority and there are there's a whole section of laws that apply to you guys. So probably it's a correct ruling. But so don't get that idea. If somebody contacts you after a meeting, I think you guys messed that up. You need to change your mind. You say, "Our job's done. You can take our decision to the courthouse. That's where it goes next." You guys are you wash your hands.

Right. Right. Well, you have you guys have been great so far. You haven't any trouble? So, but yeah, I think in 26 or 27, we might have some harder cases. So, that's why I wanted to try to cover this stuff with you. Yeah, I'll be right there. I'll help you. Mark and I'll help you. Are there any questions? I've gone a little long. Sorry. Okay. Thank you.