Editor’s Note: The author of this article is an adjoining property owner to one of the proposed solar projects. She is also directly related to one of the families who have signed a lease agreement with a solar company.
By Abigail Roberts
After hearing from a Bowling Green attorney who was retained by solar farm lease holders, the Lincoln County Fiscal Court voted to amend a zoning ordinance to honor those leases.
Solar farms in Lincoln County have been the topic of discussion at fiscal court for several weeks now.
There are two major solar projects proposed in the county with Candela Renewables in Preachersville and Clearway Energy in the Hubble community.
On Oct. 14, magistrates heard from Chris Davenport, a land use and eminent domain attorney out of Bowling Green, who said he was representing over two-dozen different solar farm lease clients.
Davenport said those clients have contracts in place with either Candela Renewables or Clearway Energy.
“Sometimes there are issues in the law that are gray, and they’re open for debate. In my humble opinion, this is not one of them. I’m not here to advocate for solar farms anywhere and everywhere. I’m not here to advocate against any particular solar farm ordinance prospectively,” he said. “What I’ve been retained for, however, is to protect what Kentucky law recognizes as a vested property right.”
In a letter addressed to Judge-Executive Woods Adams, Davenport said the proposed ordinance violates numerous statutes including the following:
• Section 19 of the Kentucky Constitution (prohibiting government action which imposes upon or infringes existing contractual rights)
• KRS 100.253 (requiring existing land uses by recognized as legally non-conforming uses);
• The Equal Protection clause of the 14th amendment of the U.S. Constitution; and
• Section 1 of the Kentucky Constitution.
“The contracts were executed years ago in most cases, with significant efforts undertaken toward this legal use in the many interim months,” the letter states.
Davenport said magistrates should listen to their Planning and Zoning Commissioners and their county attorney.
“…Those are the folks that y’all have appointed to serve in that role to be informed on how zoning ordinances work,” Davenport said Tuesday. “…I would implore you to listen to them. They’re not giving you bad advice…”
Adams noted that the ordinance being debated has always included language that states under conditional use permit, in the agricultural district, an SES in operation or that has begun physical construction prior to adoption of this ordinance shall be considered to have legal non-conforming status in accordance with KRS. 100.253.
Davenport cited three legal cases (Darlington v. Board of Councilmen of City of Frankfort and cases out of Newport and Paducah) which he said ruled that logic is wrong.
“This board cannot change state law,” Davenport said.
Magistrates then heard public comments from several people beginning with William Gooch.
Gooch said there has been a lot of talk about solar lease holders’ property rights.
“I understand what this lawyer is saying, but where’s my property rights? Where’s my dad’s property rights? These back up right to my farm. The people who own that have not owned that for years. My family has been in Goshen almost since Lincoln County (became) a county,” he said. “One of those solar farms backs right up to my farm. We were never consulted about that.”
Gooch said his family received letters from solar companies about selling their property and they chose to ignore them.
“They harassed Mr. Bailey. They harassed him and kept going to his house to try to get him to sell,” he said. “These people, they go to these farms and they sell to people who don’t have any vested interest in this county…we’ve got to live next to these.”
Gooch said he is concerned about the Dix River and the seemingly increasing flooding in the area, as well as other environmental impacts solar might have on the land and waterways near it.
“Solar farms have a place, but not on Kentucky farmland. Not on prime farm land,” Gooch said.
Matt Kiehlmeier of Candela Renewables said environmental studies have not been conducted yet because they are not at that phase of the project.
“There are extensive studies that we have to do as part of the project – there’s historical and geological, there’s geophysical, hydraulic…this stuff has a process,” he said. “As we progress, decisions will be made. The geophysical study will determine the stability of the ground. Historical, because we know this area has a lot of historical significance…to say we haven’t done the hydraulic study because we don’t want to know is patently false. We do want to know because that could greatly affect the cost of our construction.”
Kiehlmeier said there are significant fines for violating state and federal environmental laws.
“We want to know what those hazards are and we will find out what those hazards are and we will build retention ponds or we will do certain grading or vegetation control in order to control that run-off,” he said.
William Gooch reiterated his son’s concerns and asked if property owners should be worried about solar companies invoking eminent domain.
James Hackley spoke next and said the solar projects seem to be the best economic opportunity for farmers since the tobacco settlement.
“The tobacco allotments took up a lot of acreage, too, that was not being used for production of food,” Hackley said.”So it’s just basically replacing the tobacco allotments from years ago and it’s the best economic opportunity for farmers since then.”
Lincoln County resident Rodman Phillips said calling them “solar farms” is not a fair representation.
“It’s an industrial take over of farmland,” Phillips said. “It’s an industrial thing and it’s horrible looking, and it ruins property values as far as I’m concerned, and as far as a lot of other people are concerned. If one acre of it is put anywhere near Cedar Creek Lake or anywhere near the William Whitley House or near all that land out there, it would be a shame.”
Phillips said he’s upset that it is even being considered and believes the system has failed Lincoln County residents.
“The system has failed everybody that wasn’t involved in the beginning,” he said. “I think everybody in this county should have been made aware of this from the get-go. I think everyone should have had a voice in this, not have a voice in this when it’s already almost done. I think the system has failed the residents. Decisions being made when other people are not even aware of it, just like the gas pipeline coming through – they’re talking to the people that are involved on the property, they’re not even talking to the neighbors. I talked to my neighbors and they didn’t even know there was a 30-inch line coming through. That’s ridiculous. The system fails us and we should demand more from the system.”
Tom Dandino of Candela Renewables said this is not the last conversation during which the public will be able to give input about solar projects. Dandino added that optimistically, Candela will not be able to begin construction until about 2027.
“We’re going to come back to a group like this to apply for a permit. Something that we have to do as a project is put out public notices, have multiple public hearings to talk about the project, to talk to neighbors and other community members, understand concerns, who we need to set back from,” Dandino said. “For example, if we’re a neighbor to you, we can figure out some compromise to move some panels, put up some sort of visual buffer.”
Dandino said the company is still in the early stages of the project.
“We’re going to come together again as a community and talk about the details. We still have a lot of work to do to finalize those details,” he said. “As Chris Davenport mentioned, the conversation today is just focused on the ordinance and creating fair opportunity for everyone involved.”
At this point in the meeting, a few people yielded their time back to Davenport.
Davenport addressed the concerns about eminent domain.
“These private entities don’t have the power of eminent domain, let’s be clear about that. Public utilities do and public utilities aren’t bound by your zoning boards,” Davenport said. “Just like school boards aren’t. School boards can build schools, they don’t need your permission. Public utilities don’t need your permission.”
Davenport said public utility companies are prime buyers of private solar companies’ contracts.
“If that happens, and that’s something that those folks have in their back pocket…but if and when that happens, the person who then holds those contracts, whether it’s LG&E out of Louisville, Kentucky Utilities, Eastern Kentucky Power, Tennessee Valley Administration, they do have the power of eminent domain. What you do with this ordinance doesn’t change any of that,” he said. “This ordinance makes that outcome more likely.”
If public utilities do that, Lincoln County will not receive tax dollars, Davenport said.
“I represent property owners in eminent domain cases every day. No one is happy when their property is condemned. No one ever gets the price that they think is fair,” he said. “…That is the worst case scenario. The only people who would get the same benefits are my clients because KU and TVU and Eastern Kentucky Power are going to pay the contract prices, they’re just not going to pay the taxes.”
With the legal threat looming, magistrates voted to enter into executive session to discuss the proposed litigation.
Upon returning to open session Adams said this has been a long discussion and process.
“I think the process has worked. We’ve heard from a lot of people, for and against,” Adams said.
William Gooch then asked to address magistrates.
“It’s been brought to my attention that one of the esteemed members up there has financial ties to one of the parcels that’s in consideration with this motion and Mr. Faulkner is apparently the father-in-law of one of the people who owns the Marvin & Noel holding group,” Gooch said.
Faulkner responded.
“I’m not apparently, I am definitely his father-in-law and to the best of my knowledge in the 20 years that he and my daughter have been together he hasn’t given me a nickel and I don’t expect Doug Gooch to give me a nickel,” Faulkner said. “Yes, full disclosure, I am Doug Gooch’s father-in-law and I didn’t know that he was involved in this until all of this started so thank you for bringing that up. I think most people probably knew it anyway.”
Adams detailed a request to amend the ordinance to bring back language that grandfathers-in current contract holders.
“We do have a request to amend it, amending the first section under conditional use permit in the agricultural district, subsection B, the planning and zoning had recommended any property owner with a legally-binding contract may continue based on the prior commercial SES in the land use regulations of the Lincoln County ordinance…I believe the amendment is to go back to that with the language instead of ‘binding’ to ‘recorded,’” Adams said.
Day said that makes it clear who has a legal contract because it is recorded and time-stamped.
Magistrate Joe Stanley said he has been pulled back-and-forth on the issue and he still believes agriculture is the future of Lincoln County.
“I know everybody has a dog in the fight, but we’ve amended this and I think that what we’ve done will at least keep solar panels in moderation in Lincoln County and that’s about the best we can do for everybody,” Stanley said.
Stanley made a motion to pass the amended second-reading of the zoning ordinance. The motion was seconded by Magistrate Dan Gutenson.
The vote was unanimous.
While current contracts will be honored through the amended ordinance, the new setbacks in the ordinance will now apply to future proposed projects.
The ordinance makes setbacks for Solar Energy Systems (SES) 1,000 feet from residential property lines; 1,000 feet from commercial or industrial property lines; and 1,000 feet from the center line of any public road. It also includes the protection of “prime farmland” with the federal definition (7 CFR Part 657).
“Again, thank you guys for showing up and doing the process. I think we all learned a lot,” Adams said.
