Imperial County Municipal Code § 91701.00 Purpose and intent

Footnotes:

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Editor's note— Sec. 7 of Ord. No. 1521, adopted Oct. 24, 2017, rescinded Ch. 1, which consisted of §§ 91701.00—91701.09, and derived from the prior code. Sec. 8 of said ordinance re-enacted Ch. 1 to read as herein set out.

A. The purpose of these regulations is to facilitate the beneficial use of renewable energy resources for the general welfare of the people of Imperial County and the state of California; to protect renewable energy resources from wasteful or detrimental uses; and to protect people, property, and the environment from detriments that might result from the improper use of renewable energy resources.

B. It is the intent of these regulations to implement the renewable energy overlay zone established in the renewable energy and transmission element, and integrate, to the extent possible, Imperial County's regulations with those of other governmental agencies which regulate renewable energy development.

C. It is further the intent of these regulations to provide for the protection of the public health, safety and general welfare as the result of changes in the regulations or enforcement policies of those other agencies which regulate renewable energy development.

(Ord. No. 1521, §§ 7, 8, 10-24-17)

The renewable energy (RE) overlay zone consists of two categories as shown on the RE overlay map:

A. The geothermal energy overlay for areas where existing and future development has been environmentally review for geothermal renewable energy facilities; and

B. The renewable/geothermal overlay for areas that could be developed with any form of renewable energy technology, including geothermal production.

Land classified in some other (non-overlay) zone may also be classified in the "RE" renewable energy overlay zone. An amendment to the overlay zone would only be approved by the county board of supervisors if a future renewable energy project met one of the following two conditions:

•

Adjacent to the Existing RE Overlay Zone: An amendment may be made to allow for development of a future renewable energy project located adjacent to the existing RE overlay zone if the project:

º

Is not located in a sensitive area.

º

Would not result in any significant environmental impacts.

•

"Island" Overlay: An amendment may be made to allow for development of a future renewable energy project that is not located adjacent to the existing RE overlay zone if the project:

º

Is located adjacent (sharing a common boundary) to an existing transmission source.

º

Is adjacent to or within one-quarter mile of an existing operating solar facility.

º

Would not result in any significant environmental impacts.

(Ord. No. 1521, §§ 7, 8, 10-24-17; Ord. No. 1534, § 1, 1-15-19)

[Figure]

(Ord. No. 1521, §§ 7, 8, 10-24-17)

Renewable energy projects must be located within the renewable energy overlay zone and may be permitted only through the issuance of a conditional use permit (CUP) within applicable zones as approved by the approving authority unless otherwise allowed by applicable law. Renewable energy projects may consist of the following technologies: geothermal, solar, wind, deep solar ponds, biofuel, bio-mass, algae production, concentrated solar-thermal power, and concentrated photovoltaics.

(Ord. No. 1521, §§ 7, 8, 10-24-17)

The following are general standards applicable to all renewable energy projects (projects), as contained in the Imperial County General Plan and the 2015 Renewable Energy and Transmission Element.

A. New Project Application Requirements. Two hard copies and one CD or DVD of the project application, along with the required fees, shall be submitted initially to the department of planning and development services in compliance with the application procedures required herein. Upon receipt of the application, county staff shall also forward a copy to the Imperial Irrigation District. Applications shall at a minimum include the following:

1. A project description clearly outlining the full scope of project.

2. A legal description of the proposed subject site.

3. A precise project location map including adjacent roads and canals, and other structures.

4. A site plan or plans (including an "eight and one-half-inch X eleven-inch" reproducible copy, or larger as necessary) drawn to scale and prepared in accordance with good engineering and drafting techniques.

a. The plan shall show all existing topography and development, including that within a reasonable distance abutting the project, and all proposed development.

b. There shall be a North arrow and adequate legend.

c. The plan shall be drawn to commonly used engineer's scale.

5. Assessor parcel map numbers (one copy only) showing the project site and all parcels within one mile (five hundred (500) feet within non-agricultural areas).

6. Amount and type of energy (KW, MW, or BTU) and/or products to be produced for typical operations and on an annual basis.

7. Geologic, engineering, and/or other acceptable evidence that provides reasonable assurance of the success and safety of the project.

8. An influent-effluent table or diagram indicating quantities and characteristics of geothermal resource to be produced and injected, air emissions, liquid and solid discharges, etc., for typical operations and on an annual basis (geothermal energy projects only).

9. A timetable for project development.

10. A certification on all applications, reports, or other information requested by the county, which shall be signed by the owner or operator, or in the case of a corporation, a responsible corporate officer or his authorized agent. The persons signing the document shall attest and certify as follows:

"We, the legal owner (s) of the above property certify that the information shown or stated herein is true and correct."

B. New Project General Standards. The following general standards shall apply to all projects):

1. General Law. The permittee shall comply with all applicable local, state, and/or federal laws, rules, regulations, ordinances, and/or standards (LORS) as they may pertain to the project, whether specified herein or not

2. Compliance with other Permits/Licenses.

a. The permittee shall obtain and comply with any and all local, state and/or federal permits, licenses, and/or other approvals related to the construction and/or operation of the project. This shall include, but not be limited to, local requirements by the Imperial County EHS/Health Department, Planning and Development Services Department, Imperial County Air Pollution Control District (ICAPCD), Imperial Irrigation District (IID), Imperial County Public Works Department, imperial County Sheriff/Coroner's Office, Imperial County Fire Protection/Office of Emergency Services.

b. Permittee shall submit a copy of such additional permit and/or licenses to the planning and development services department within thirty (30) days of receipt, including amendments or alternatives thereto, when requested.

3. Recordation.

a. The permit shall not be effective until it is recorded at the Imperial County Recorder's Office by county staff.

b. Payment of the recordation fee shall be the responsibility of the permittee.

c. If the permittee fails to provide the recordation fee within six months from the date of county approval, the permit shall be deemed null and void.

4. Condition Priority. The project shall be constructed and operated as described in the application and project description of the permit.

5. Indemnification and Release. In addition to any other indemnifications provided for the project, and as a condition of this permit, permittee shall defend, indemnify, hold harmless, and release the county, its agents, officers, attorneys, and employees from any claim, action, or proceeding brought against any of them, the purpose of which is to attack, set aside, void, or annul the entitlements, any permits, approvals or adoption of the environmental document which accompanies it. This indemnification obligation shall include, but not be limited to, damages, costs, expenses, attorneys' fees for counsel chosen by county, or expert witness fees that may be asserted by any person or entity, including the permittee, arising out of or in connection with the approval of this permit, whether there is concurrent, passive or active negligence on the part of the county, its agents, officers, attorneys, or employees. This indemnification shall include permittee's actions or failure to act involved in drilling, grading, construction, operation or abandonment of the permitted activities. Permittee further agrees to comply with the terms of the indemnification agreement incorporated by this reference and attached to Ordinance No. 1521 as exhibit A. Failure to provide payment of any fees or other costs for this indemnification shall cause permittee to be in noncompliance with this permit. Upon notification of noncompliance, county may, at its sole discretion, cease processing, defending any lawsuit or paying for costs associated with this project.

6. Insurance. For the term of the CUP and any period thereafter for decommissioning and reclamation, the permittee and/or permittee's prime contractor assigned site control during construction, shall secure and maintain liability in tori and property damage, commercial liability and all risk builders' insurance at a minimum of one million dollars ($1,000,000.00) each, combined single limit property damage and personal injury, to protect persons or property from injury or damage caused in any way by construction and/or operation of permitted facilities. Such insurance shall be primary as to county and endorsed to name the county, its officers, agents, and employees as additional insureds and shall be in a form and from a company acceptable to county. The permittee shall require that proper workers' compensation insurance cover all laborers working on such facilities as required by the state of California. The permittee and/or permittee's prime contractor assigned site control during construction, shall also secure liability insurance and such other insurance as may be required by the state and/or federal law. Evidence of such insurance shall be provided to the county prior to commencement of any activities authorized by this permit, e.g. an endorsed certificate of insurance is to be provided to the Imperial County Planning and Development Services Department by the insurance carrier and said insurance and certificate shall be kept current for the life of the permitted project. Certificate(s) of insurance shall be sent directly to the Imperial County Planning and Development Services Department by the insurance carrier and shall be endorsed to name the department as a recipient of both renewal and cancellation notices.

7. Inspection and Right of Entry. The county reserves the right to enter the premises to make appropriate inspection(s) for determining compliance with the condition(s) of the permit. The owner or operator shall allow an authorized county representative into the site upon the presentation of credentials to:

a. Enter at reasonable times upon the owner's or operator's premises where a permitted facility or activity is located or conducted, or where records must be kept under the conditions of the permit;

b. Have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit;

c. Inspect, at reasonable times, any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under the permit; and

d. Sample or monitor, at reasonable times, for the purpose of assuring permit compliance or, as otherwise authorized by law, any substances or parameters at any location.

8. Severability. Should any condition(s) of the permit be held to be illegal or unenforceable by a court of final jurisdiction, the remainder of the permit shall continue in full force and effect.

9. Provision to Run with the Land/Project.

a. The provisions of the approved project are to run with the land that is the subject of the project and shall bind the current and future owner(s), successor(s)-in-interest, assignee(s) and/or transferee(s) of said project.

b. Permittee shall not, without prior notification to the planning and development services department, assign, sell or transfer, or grant control of project, or any right or privilege therein.

c. Permittee must notify department in advance of any transfer due to foreclosure or other action taken by a third party that could result in transfer of ownership. The permittee shall provide a minimum of thirty (30) days' written notice prior to such proposed transfer becoming effective.

d. The permitted use identified herein is limited for use upon the permitted properties described herein and may not be transferred to any other parcel(s) without prior approval.

10. Time Limit.

a. Unless otherwise specified within the specific conditions, the duration of the permit shall be limited to a maximum of thirty (30) years, or [such lesser period as approved by the county], from the recordation of the permit.

b. The permit may be extended for an additional ten-year period by the appropriate county entity (either the director of planning and development services, the planning commission, or the board of supervisors as set forth in the applicable Imperial County Ordinances) upon a finding that the project is in compliance with all conditions of the permit as staled herein and any applicable land use regulation of the county of Imperial.

i. If an extension is necessary, the permittee shall file a written extension request with the director of planning and development services at least sixty (60) days prior to the expiration date of the permit. Such an extension request shall include the appropriate extension fee.

ii. Nothing stated or implied within this permit shall constitute a guarantee that an extension will be granted. An extension may not be granted if the project is in violation of any one or all of the conditions of approval or if there is a history of noncompliance with the permit conditions.

11. Compliance Determination Costs.

a. The permittee shall be responsible for the payment of all costs as determined by the county planning and development services department, to defray the costs associated with staff time required for the review of reports, field investigations, monitoring, and other activities directly related to the enforcement/monitoring for compliance of the permit, county ordinance or any other applicable law.

b. All county departments directly involved in the monitoring/enforcement of a project may bill permittee under this provision; however, said billing shall only be through and with the approval of the planning and development services department.

c. All county staff time will be billed on a "time and materials" basis.

d. Failure of permittee to provide any payment required of permittee to the county in the CUP shall cause permittee to be in non-compliance of the CUP. Upon permittee being in such noncompliance, county may, at its sole discretion, cease processing, defending any lawsuit or paying for costs associated with this project.

12. Reports/Information.

a. If requested by the Imperial County planning director, permittee at its sole expense shall provide any such documentation/report as necessary to ascertain compliance with the conditional use permit.

b. The format, content and supporting documentation shall be as required by the director of planning and development services.

13. Definitions. In the event of a dispute the meaning(s) or the intent of any word(s), phrase(s) and/or conditions or sections herein shall be determined by the planning commission of the county of Imperial. Their determination shall be final unless an appeal is made to the board of supervisors within the required time limits.

14. Minor Amendments.

a. The director of planning and development services may approve minor changes or modification(s) to the design, construction, and/or operation of the project provided said changes are necessary for the project to meet other laws, regulations, codes, or conditions of the permit, and provided further, that such changes do not constitute an expansion and/or intensification of the project resulting in any additional environmental impacts.

b. All amendments shall be done in the manner set forth in the Imperial County Code of Ordinances.

15. Specificity.

a. The issuance of the permit does not authorize the permittee to construct or operate the project in violation of any state, federal, local law, nor beyond the specified boundaries of the project as shown in the application, nor shall the permittee allow any accessory or ancillary use not specified herein.

b. The permit does not provide any prescriptive right or use to the permittee for future addition and or modifications to the project.

16. Noncompliance (Enforcement and Termination). Should the permittee violate any condition herein, the county shall give written notice of such violation and actions required of permittee to correct such violation. If permittee does not act to correct the identified violation within forty-five (45) days after written notice, county may revoke the CUP. If permittee pursues correction of such violation with reasonable diligence, the county may extend the cure period. Upon such revocation, county may, at its sole discretion, cease processing, defending any lawsuit or paying for costs associated with the project. County may include in such notice of violation and subsequent process default and/or termination of the public benefit agreement along with violation or revocation of the CUP, and the procedures set out here shall govern. As set out in subsection 19 below, the time for notice and cure is not applicable to situations that affect public health and safety. In such case, the county may act immediately to suspend the permit.

17. General Welfare. All construction and operations of the project shall be conducted in accordance with all applicable laws, regulations, conditions, adopted county policies, plans, and the application, so that the project will be in harmony with the area and not adversely affect the general public health, safety, comfort, convenience, and general welfare of those residing in the area.

18. Permits of Other Agencies Incorporated.

a. Permits granted by other governmental agencies in connection with the project are incorporated herein by reference.

b. The county reserves the right to apply conditions of said permits, as deemed appropriate; provided, however, that enforcement of a permit granted by another governmental agency requires concurrence by the respective agency.

c. Permittee shall provide to the county, upon request, copies and amendments of all such permits.

19. Health Hazard.

a. If the county health officer determines that a significant health hazard exists to the public, the health officer may require appropriate mitigation measures, and the permittee shall implement such measures to mitigate the health hazard.

b. If the hazard to the public is determined to be imminent, such measures may be imposed immediately and may include temporary suspension of permitted activities.

c. The measures imposed by the county health officer shall not prohibit the permittee from requesting a special planning commission meeting where a dispute exists. The permittee shall bear all costs related to the special meeting.

20. Approvals and Conditions Subsequent to Granting Permit.

a. Permittee acceptance of a permit shall be deemed to constitute agreement with the terms and conditions contained therein.

b. Where a monitoring program requirement is imposed in a permit that subsequently results in the need for the modification and/or imposition of additional conditions in which disagreement arises, the permittee, operator, and/or agent, the planning and development services director, or other affected party may request that a hearing be scheduled before the planning commission for a resolution to the disagreement.

i. Upon receipt of a request, the commission shall conduct a hearing and make a written determination.

ii. The commission's decision shall be final.

iii. The commission may request support and advice from a technical advisory committee to assist with their deliberations.

iv. Failure to take any action shall constitute endorsement of staff's determination.

(Ord. No. 1521, §§ 7, 8, 10-24-17)

Except as specifically authorized in the permit, supplemental activities that require additional major equipment or facilities will require separate permits. The county, in issuing a permit, in no way assures, or otherwise vests any right, with respect to the issuance of a permit or permits for supplemental activities.

A. If a project requires more than one discretionary permit from Imperial County, such permits shall be processed concurrently,

B. A project application shall be classified under and processed pursuant to those regulations which are most appropriate to the nature of the project and the existing conditions at the project's location. Where uncertainty arises, the director of planning and development services shall determine the regulation under which the project application shall be processed.

C. In applying conditions to a permit, the approving authority may be guided by the regulations and standards applicable to conditional use permits for other types of related projects.

1. For discretionary projects, applications may be denied if the approving authority finds that the proposal will not be compatible with the area for which it is proposed.

2. Ministerial projects shall also be consistent with the renewable energy overlay designation and standards for the proposed site.

(Ord. No. 1521, §§ 7, 8, 10-24-17)

Notwithstanding the minimum acreage limitations of the underlying zone, parcel maps may be approved in conjunction with permits for renewable energy projects in the renewable energy overlay zone with requirements and restrictions applied thereto which are consistent with the purposes of these regulations and the renewable energy overlay zone.

(Ord. No. 1521, §§ 7, 8, 10-24-17)