They got handcuffedPosted Wednesday, June 10, 2009, at 4:17 PM
You could see the frustration on the faces of the county commissioners when Prosecuting Attorney, Kristina Schindele, who serves as the commissioner's lawyer, advised them that they had to deal with the nuclear plant rezone issue solely based on whether or not the land should be rezoned as heavy industrial, without being able to consider the purpose for which the rezone had been made.
Earlier in this process, this paper had asked the former administrator of the county's Growth and Development Office, if the rezone could be made conditional upon the fact that only a nuclear power plant could be built on the land, and had been advised that it could.
Schindele's advice, which she was asked to review in more detail before next Monday's meeting, meant that if the rezone is approved, the land could theoretically be used for any heavy industrial use. And that seemed to frustrate the commissioners, who had met to publicly discuss the rezone, and wanted to be able to discuss the entire package, the rezone and the developer's agreement involving construction of the nuclear plant.
In effect, they were going to have to make a rezone decision (which could be limited to four years) in a vacuum.
If they approved the rezone, the subsequent conditional use permit (required for all industrial uses) and the more detailed developer's agreement could impose significant restrictions and conditions on the AEHI nuclear plant proposal. But apparently, unlike what we'd been told before, they couldn't be tied together.
Commissioner Rose likened it to putting the cart before the horse, and he was right. Not being able to consider the purpose for the rezone when making the decision was a serious handicap. We had endorsed the nuclear plant in the belief that the rezone could be limited to that specific use. We have no general objections to nuclear power and the plant would have a very small "footprint," beyond its borders, but that can't be said for many other potential heavy industrial uses. Even allowing for the fact that any other use would require a conditional use permit, which could be highly restrictive, Shindele's interpretation of the law opens the door to a path that we're not certain would be a good idea here.
Schindele also was asked to review seemingly contradictory language in the county's land use comprehensive plan regarding siting for heavy industrial uses. One interpretation would allow only those uses in the Simco Road area, which if true, is insane, since most heavy industries require large amounts of water and there functionally isn't any available in that area.
Land use law is some of the most complex you can ever deal with. And planning is crystal ball gazing. Even the best of the ordinances and land use plans are usually wide open for interpretation and wind up trying to deal with unforeseen issues. It's tough to look down the road and see what people are going to want to use the land for. When the original zoning ordinances for the county were created in the early '90s, for example, a nuclear power plant wasn't even close to being on anyone's radar.
If nothing else, this request by AEHI has pointed out a number of flaws in the county's comprehensive plan and zoning ordinances, which the county is almost certain to address when this specific issue is resolved, so some good will come from all the controversy.
But Schindele's advice has to be seen by supporters of the plant as a setback. As a limited complete package -- rezone, conditional use permit and developer's agreement -- our guess is it would have a better chance (no guarantees, but a better chance). But if the law requires each step to be taken in isolation, which seems to be a poor way of doing business, then we suspect the chances of approval are lower.
It looks like a lot is going to depend on what Schindele tells the commissioners next Monday (June 15) after she's had a chance to research the issues in greater depth.
-- Kelly Everitt
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