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IN THE MATTER OF:
THE APPLICATION OF KENTUCKY PIONEER ENERGY LLC FOR A CONSTRUCTION CERTIFICATE PURSUANT TO KRS 278.704(1) TO CONSTRUCT A MERCHANT ELECTRIC GENERATING FACILITY; SITING BOARD CASE 2002-00312
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Comes the Petitioner, Charles T. Walters, by and through counsel, and pursuant to the agreed-upon Order Setting Briefing Schedule, herewith tenders this memorandum in support of his motion for summary judgment.
This action was filed pursuant to the provisions of KRS 278.712, which provides for judicial review of final determinations of the Kentucky State Board on Electric Generation and Transmission Siting rendered under KRS 278.710. The Petitioner, Charles T. Walters (Walters) sought review of a November 10, 2003 determination by the Siting Board granting approval of the application of Kentucky Pioneer Energy LLC (hereafter "Kentucky Pioneer") for a merchant power plant construction certificate for construction of a 540-megawatt electric power generation facility in Clark County, Kentucky. A copy of the final determination appealed from was attached to the Complaint / Petition for Review.
This action presents a single question of statutory interpretation - - does the mere representation by an applicant seeking a construction certificate under KRS 278.706(2)(d) that it will at some future date comply with the comprehensive plan and zoning regulations suffice to meet the application requirements of the siting statute and allow the Board to conditionally approve a construction certificate, or did the General Assembly instead intend and do the applicable statutes demand that the planning and zoning review and approval precede Board acceptance of an application as complete and Board action thereon?
The material facts in this matter are of record and are not in dispute.
On December 19, 2002, Kentucky Pioneer filed an application pursuant to K.R.S. 278.706(1) with the Kentucky State Board on Electric Generation and Transmission Siting (hereinafter “Board”) for approval to construct a 540-megawatt electric power generation facility in Clark County, Kentucky.
After discovery, a local public hearing, and an evidentiary hearing, the Board “asked Kentucky Pioneer to submit a post-hearing brief addressing the extent to which the proposed facility would meet all planning and zoning requirements that existed on the date the application was filed.” Order, Case No. 2002-00312, April 16, 2003, p. 4-5.
On March 24, 2003, Kentucky Pioneer submitted a brief asserting that it was exempt from the jurisdiction of the Clark County Planning and Zoning Commission, so that “the fact that Kentucky Pioneer proposes to construct and operate a generation facility in an area that is limited to agricultural use should not prevent the Board from finding that Kentucky Pioneer has met existing planning requirements.” Id., p. 5.
On April 16, 2003, the Board entered an Order denying the application without prejudice upon a finding that:
Kentucky Pioneer has not demonstrated that the proposed facility will meet all local planning and zoning requirements that existed on the date that the application was filed. Due to the fact that Kentucky Pioneer’s application would have been administratively incomplete and thus could not even be reviewed without certification that it would meet all local planning and zoning requirements, the Board concludes that the issue of Kentucky Pioneer’s subsequent repudiation of its statement of full compliance is dispositive. The application must, therefore, be denied.
Order, Case No. 2002-00312, April 16, 2003, p. 4.
Rejecting the Kentucky Pioneer argument that it was exempt from the requirement that it comply with local planning and zoning regulations, and finding that the area in which Kentucky Pioneer proposes to locate the merchant facility “is zoned agricultural”, April 16, 2003 Order at 10, the Board concluded that:
[K]entucky Pioneer will not meet all the local planning and zoning requirements in effect on the date that it submitted its application. The Board is aware that the consideration of local planning and zoning requirements is one of nine criteria that it must consider before approving or denying a siting application. However, the Board believes that its enabling statutes’ emphasis on local concerns, together with the statute’s legislative history, not only demonstrates the Legislature’s commitment to local planning issues, but also requires the Board to carefully consider local concerns in rendering its decision. It is also crucial that, while compliance with zoning regulations appears only as a factor for consideration in K.R.S. 278.710(1)(e), certification of compliance with those regulations appears as a filing requirements in K.R.S. 278.706(2)(d). In short, absent certification of future compliance, an application for a merchant plant cannot even be reviewed.
Clearly, the provision in K.R.S. 278.706(2)(d) was meant to prevent the Board from even considering an application for a plant that would not be in compliance with zoning regulations. Only the fact that Kentucky Pioneer certified that it would comply brought us to this point in the proceedings.
Order, April 16, 2003, at 10-11.
After reviewing the legislative history of the siting statute, the Board concluded that:
While Kentucky Pioneer has met some of the criteria outlined in K.R.S. 278.710, the Board ultimately finds as a matter of law that none of the evidence presented with regard to the remaining criteria can compensate for Kentucky Pioneer’s failure to comply with local planning and zoning ordinances. The Board also notes with concern Kentucky Pioneer’s repudiation of its own certification that it would comply with all planning and zoning regulations. Without that certification,the Board would have been prohibited by law from reviewing Kentucky Pioneer’s application. Kentucky Pioneer’s certification has now, in essence, been withdrawn. It is extraordinary that Kentucky Pioneer can expect that same application to be approved.
Order, April 16, 2003, at 13.
The April 16, 2003 Order (a copy of which is annexed hereto as Addendum A), denied the application without prejudice, noting that “[s]hould Kentucky Pioneer comply with existing zoning regulations within 6 months of the date of this Order, the Board will reconsider this application.” Id., p. 14.
A second evidentiary hearing was held at the request of Kentucky Pioneer in response to the April 16, 2003 Order. The second hearing “concerned only one issue: whether the proposed Facility would in fact meet local planning and zoning requirements that were in effect on the date the application was filed.” Order, November 10, 2003, pp. 1-2.
The Board’s November 10, 2003 Order succinctly describes the evidence adduced at the second hearing and is reprinted at length:
The second evidentiary hearing was held at the request of Kentucky Pioneer in response to our Order of April 16, 2003 denying the application (the “April 16 Order”). As the April 16 Order explains, Kentucky Pioneer not only planned to construct a merchant generating plant in an area zoned agricultural rather than industrial; it asserted that it was not obligated to comply with Clark County’s zoning requirements because K.R.S. 100.324 provides it with an exemption from planning commission jurisdiction. Our April 16 Order rejected that contention. Since the 1992 passage of the statutes creating this board, K.R.S. 100.324 no longer shields merchant generators from compliance with local planning requirements, even though it places jurisdiction for ascertaining that those requirements are met with this Board rather than with local planning commissions.
The April 16 Order did, however, state that “[s]hould Kentucky Pioneer comply with existing zoning regulations within 6 months of the date of this Order, the Board will reconsider this application.” Subsequently, Kentucky Pioneer requested a hearing stating it would offer evidence of compliance.
At the August 22, 2003 hearing, Kentucky Pioneer repeatedly stated in sworn testimony that it had withdrawn its initial argument that it is not required to comply with planning and zoning ordinances and regulations. Further, it stated that it would not only comply with Clark County’s planning and zoning ordinances but that it would, in fact, voluntarily subject itself to the entire planning and zoning process described by Clark County Executive Director Robert Blanton.
Order, November 10, 2003, pp. 2-3.
The Board noted that despite Kentucky Pioneer’s allegation that it would demonstrate “evidence of compliance with planning ordinances” at the second evidentiary hearing, Kentucky Pioneer offered little evidence that it actually had taken steps to obtain local approval of the zoning change from agricultural to industrial that is a precondition to compliance. No application for a map change had been filed with the Planning Commission, according to Robert Blanton, director of Planning and Community Development for the Winchester-Clark County Planning Commission. Kentucky Pioneer had not even met with planning officials since April 21.
The evidence presented by Kentucky Pioneer consisted of a promise by its President, Mike Musulin, that it would “comply with all local planning and zoning requirements.” Mr. Musulin promised, furthermore, that Kentucky Pioneer would “comply with the process, the planning and zoning process,” by applying for a zoning amendment. Mr. Musulin stated that he understands that a land use change is within the discretion of local authorities. Mr. Musulin also represented to the Board that he came to the hearing with “complete authority” to bind both Kentucky Pioneer and its parent, Global Energy.
Mr. Musulin also withdrew President H.H. Graves’ statement in his May 7 letter to the Board to the effect that Kentucky Pioneer’s alleged existing compliance with planning and zoning regulations would be “reaffirmed.” He replaced that statement with his own – that, prior to beginning construction, Kentucky Pioneer will be in compliance with planning and zoning regulations.
Order, November 10, 2003, pp. 5-6.
The Board reconsidered the April 16, 2003 denial and “conditionally” approved the application, explaining the action in this manner:
Despite the somewhat jarring statements discussed above, we conclude that the sworn statements made by Mr. Musulin at hearing provide sufficient assurances that Kentucky Pioneer plans to submit fully to the local authorities and to abide by their decisions. We also accept Kentucky Pioneer’s assurances that it has wholly withdrawn its prior insistence that it need not comply with planning and zoning regulations. Based upon these understandings, and upon the findings and conditions described below concerning the remaining statutory criteria, we believe it is appropriate to issue a conditional certificate in this case. Order, November 10, 2003, p. 9.
In response to Petitioner Walter’s argument that no certificate can be issued unless and until after Kentucky Pioneer has applied for and received local approval for the zoning change, the Board noted that:
[t]he argument is a strong one, and has been carefully considered by this Board. However, given the sworn statements of Kentucky Pioneer’s President that it will not build until it has fully met the requirements specified by the local authorities, our only remaining function in regard to the planning and zoning issues presented herein would be the redundant one of overseeing the planning commission and fiscal court processes. We do not believe that such oversight is warranted. There will be a final finding of fact in regard to noncompliance. The issues are in the capable hands of the local authorities; and the intent of Kentucky law – that local requirements be considered in the siting of merchant generators – will be well-satisfied.
Id., p. 10.
The Board’s November 10, 2003 Order concluded with this finding: After carefully considering the criteria outlined in K.R.S. Chapter 278, the Board finds that, except in regard to compliance with zoning regulations, Kentucky Pioneer has presented sufficient evidence to obtain a certificate to construct the Facility. Accordingly, the Board conditions its approval upon the implementation of the measures described herein and listed in Appendix A to this Order, as well as upon the strictures outlined in this Order in regard to submission to the planning and zoning process.
Further, in order to demonstrate compliance with the commitments and representations it has made to this Board, Kentucky Pioneer must certify to the Board, in writing, proof that the Winchester-Clark County Planning Commission has approved the Facility and that the local authorities have found the Facility to be in compliance with all planning and zoning regulations, prior to beginning construction of the Facility. Unless such written certification is received, the authority granted by this Order is void.
Order, November 10, 2003, p. 20.
This appeal followed.
JURISDICTION AND SCOPE OF REVIEW
KRS 278.712(5) provides in relevant part that:
Any party to a proceeding held pursuant to this section or any final determination pursuant to Section 6 of this Act may, within thirty (30)days after service of the board's final ruling, bring an action against the board in the Circuit Court of the county in which the facility is proposed to be constructed to vacate or set aside the ruling on grounds that the ruling is arbitrary, capricious, or otherwise unlawful or unreasonable. Any party instituting an action for review of the Board's ruling in the Circuit Court of the county in which the facility is proposed to be constructed shall give notice to all parties of record in the board's proceeding.
KRS 278.712(5) (2002).
This court has jurisdiction to hear this petition for review pursuant to KRS 278.712(5) and venue is appropriate in this court inasmuch as the Kentucky Pioneer facility is proposed to be constructed in Clark County, Kentucky. The petition for review was timely, having been filed within thirty (30) days of the date of service of the November 10, 2003 Order.
KRS 278.712(5) provides that on judicial review of a final determination of the Siting Board, this Court shall set aside or vacate the determination where it is shown that the ruling is arbitrary, capricious, or otherwise unlawful or unreasonable.
Whether the Board acted in a manner that is “arbitrary” depends on whether due process was afforded, whether the Board acted within its statutory powers, and whether the decision is supported by substantial evidence. Hougham v. Lexington-Fayette Urban County, Ky. App., 29 S.W. 3d 370, 373 (2000), citing American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission., Ky. App., 379 S.W.2d 450 (1964). In reviewing an agency decision, a court may overturn that decision if the agency acted arbitrarily or outside the scope of its authority, or if the agency applied an incorrect rule of law, or if the decision itself is not supported by substantial evidence in the record. Lindall v. Kentucky Retirement Systems, Ky. App., 112 S.W.3d 391, 394 (2003).
Questions of law are to be accorded de novo review by this Court on appeal. Rogers v. Fiscal Court of Jefferson County, Ky. App., 48 S.W. 3d 28, 31 (2001). See Roland v. Kentucky Retirement Systems, Ky. App. 52 S.W.3d 579, 582 (2001); Kentucky Board of Nursing v. Ward, Ky. App., 890 S.W.2d 641, 642 (1994). If the ruling of the administrative agency is based on an incorrect view of the law, the reviewing court may substitute its judgment for that of the agency. Id.
A question of law is also presented where the relevant facts are undisputed and the issue on appeal becomes the legal effect of those facts. Revenue Cabinet v. Comcast Television, Ky. App. 147 S.W.3d 743, 747 (2004). The lawfulness of the agency action is to be determined upon the rationale it provided at the time of the decision and not an after-the-fact justification. See Faust v. Commonwealth, 142 S.W.3d 89, 95-96 (Ky. 2004). Finally, while it is a general rule that a “construction of a law or regulation by officers of an agency continued without interruption for a long period of time is entitled to controlling weight,” limited deference is given to “informal agency interpretations that have been arrived at without rulemaking or an adversarial proceeding.” White v. Check Holders, Inc., Ky., 996 S.W.2d 496, 498 (1999). Such limited deference is particularly appropriate here given the untested nature and inconsistent application of the Board’s construction of K.R.S. 278.
This statutory action reviewing the Board decision is appropriate for summary judgment under CR 56.03. In accordance with the case of Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991), which reaffirmed the standard established by the Supreme Court of Kentucky in the Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985), “the proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor. We further declared that such a judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances.” Steelvest, supra at 480.
SUMMARY OF ARGUMENT
The Siting Board determination conditionally approving Kentucky Pioneer’s siting construction certificate was “arbitrary, capricious” and “otherwise unlawful and unreasonable” and thus should be vacated and set aside.
The Siting Board decision was contrary to law, since KRS 278.710(1)(e), KRS 278.706(2)(d), KRS 278.708(3) and KRS 278.704(3), read together, require that an applicant obtain approval from any applicable zoning and planning unit prior to an application for a construction certificate being deemed complete under KRS 278.706(2) and prior to a decision being made by the Board to approve or disapprove an application under KRS 278.710(1) (and including KRS 278.710(2)(e)). The Board, as a creature of statute, was without the statutory authority to accept future promises of compliance as sufficient in light of the clear statutory requirement that compliance be demonstrated at the time of application for a certificate.
Having acknowledged and found that the proposed location of the electric generating facility is not currently zoned to support such a use; that there was no pending application for a rezoning or change of zoning classification for that property; and that there was no evidence that such a use is compatible with the applicable zoning for that property such as existed at the date of application, the Board could not lawfully accept the application as “complete” nor issue a construction certificate.
IN ORDER FOR AN APPLICATION FOR A MERCHANT POWER PLANT CONSTRUCTION CERTIFICATE TO BE DEEMED COMPLETE, AND PRIOR TO BOARD REVIEW OF THE APPLICATION, THE APPLICANT MUST DEMONSTRATE THAT ZONING AND PLANNING APPROVAL HAS BEEN OBTAINED
The disposition of this case turns on a question of statutory construction – do the relevant provisions of KRS 278.700 – 278.716 require an applicant for a siting construction certificate to demonstrate that zoning and planning approval has been obtained, or is a mere representation to the Siting Board of future intent to comply sufficient? Despite finding that Kentucky Pioneer had not demonstrated that the requisite planning and zoning requirements had been satisfied, the Board concluded that promises of future compliance were sufficient to allow it to hear and decide the case and to grant conditional approval to the proposed merchant power plant. In so acting, the Board violated both the language and intent of the governing statutes, which require that the planning and zoning agency have acted upon the matter before the application for a construction certificate from the Board can be deemed “complete.”
K.R.S. 278.710(1) directs that the Board must grant or deny a construction certificate based upon a list of criteria, including “[w]hether the proposed facility will meet all local planning and zoning requirements that existed on the date the application was filed[.]” K.R.S. 278.710(1)(e).
K.R.S. 278.706(2), which mandates the content of a “completed application”, requires inter alia, that the application include:
(d) A statement certifying that the proposed plant will be in compliance with all local ordinances and regulations concerning noise control and with any local planning and zoning ordinances. . . .
In concluding that a representation of future intent to apply for zoning approval was sufficient, the Commission reasoned that:
Considerable confusion has been generated in this proceeding based on the statutes’ use of the future tense in reference to compliance with planning regulations. See K.R.S. 278.710 (mandating consideration of whether a plant “will meet all local planning and zoning requirements”)(emphasis added); K.R.S. 278.706(2)(d) (requiring an application to include a “statement certifying that the proposed plant will be in compliance with … local planning and zoning ordinances”(emphasis added). Confusion on this score has been unnecessary. The statutory language is in the future tense for the simple reason that it refers to a plant which has not yet been certified and which does not yet, therefore, exist. The statute nevertheless contemplates that the offering of proof that the plant will be in compliance is an action that takes place prior to certification. In other words, present proof of compliance demonstrates that a plant, when it is built, will comply with local planning and zoning ordinances.
November 13, 2003 Order, p. 6, fn 13.
The Commission’s interpretation of K.R.S. 278.710(1)(e) and K.R.S. 278.706(2)(d) as allowing conditional issuance of a construction certificate is inconsistent with the statutes in several respects.
The first conflict arises regarding the establishment of setbacks. As noted above and as quoted by the Board, KRS 278.706(2)(d) demands that an application, in order to be considered "completed", include, among other things,
(d) A statement certifying that the proposed plan will be in compliance with all local ordinances and regulations concerning noise control and with any local planning and zoning ordinances.
KRS 278.706(2) (2002).
That same subsection continues, however, by requiring that:
The statement shall also disclose setback requirements established by the planning and zoning commission as provided under KRS 278.704(3).
K.R.S. 278.704(3) provides that if the merchant electric generating facility is proposed to be located in a county or a municipality with planning and zoning,
then the setback requirements from a residential neighborhood, school, hospital or nursing home facility may be established by the planning and zoning commission. Any setback established by a planning and zoning commission for a facility in an area over which it has jurisdiction shall:
(a) Have primacy over the setback requirement in subsections (2) and (5)of this section, and
(b) Not be subject to modification or waiver . . . .
KRS 278.704(3) (2002).
There is no dispute that the Kentucky Pioneer project did not meet local zoning requirements since the property was zoned for agricultural use and a power plant was not a permissible use in that zone. AS noted above, the Board found in the April Order that Kentucky Pioneer had not demonstrated that the proposed facility would meet:
all local planning and zoning requirements that existed on the date that the application was filed. Due to the fact that Kentucky Pioneer’s application would have been administratively incomplete and thus could not even be reviewed without certification that it would meet all local planning and zoning requirements, the Board concludes that the issue of Kentucky Pioneer’s subsequent repudiation of its statement of full compliance is dispositive. The application must, therefore, be denied.
Order, Case No. 2002-00312, April 16, 2003, p. 4.
The Board reiterated in the November Order that:
Kentucky Pioneer offered little evidence that it actually had taken steps to obtain local approval of the zoning change from agricultural to industrial that is a precondition to compliance. No application for a map change had been filed with the Planning Commission, according to Robert Blanton, director of Planning and Community Development for the Winchester-Clark County Planning Commission. Kentucky Pioneer had not even met with planning officials since April 21.
Order, November 10, 2003, pp. 5-6.
Yet despite these findings, the Board accepted the earnest representation of its representatives that it will in the future comply with applicable zoning and planning, as being sufficient to allow the Siting Board to consider the application complete and enable the Board to approve an otherwise complete and compliant application for a construction certificate. In so doing, the Board acted in a manner contrary to K.R.S. 278.706(1).
KRS 278.706(1)(d) requires that, for an application to be deemed completed and to be accepted for further review, it must include a:
statement certifying that the proposed plant will be in compliance with . . . any local planning and zoning ordinances. The statement shall also disclose setback requirements established by the planning and zoning commission as provided under KRS 278.704(3).
Id., emphasis added.
The proposition that Siting Board approval can precede zoning and planning approval cannot be squared with this statutory language, since until the local planning and zoning commission receives, reviews and approves a specific land use proposal and development plan, the applicant will not know what setback requirements have been established by the commission and thus cannot “disclose” them to the Board. Until an application is submitted and approved by the local planning commission, it would be pure speculation as to what setbacks might be established, and the requirement to identify setbacks established by the planning and zoning agency as part of the certification in KRS 278.706(1)(d) is not satisfied. KRS 278.706(1)(d) requires that the applicant disclose the setbacks established by the planning and zoning commission "as provided under KRS 278.704(3)." KRS 278.704(3) provides that if the merchant electric generating facility is proposed to be located in a county or a municipality with planning and zoning, "then the setback requirements . . . may be established by the planning and zoning commission." That same provision guarantees that any setback established by a planning and zoning commission shall have primacy over the default setbacks in the siting law and cannot be waived by the Siting Board.
In enacting KRS 278.704(3), the legislature recognized that the local planning and zoning commission may establish setbacks in order to protect neighborhoods, schools, hospitals and nursing homes, and that if established, the Siting Board must defer to those setbacks. Absent an actual application, the local zoning and planning commission cannot exercise its discretion to render a decision on a zoning change and cannot establish setbacks from these structures; an exercise of discretion by the planning commission that KRS 278.706(1)(d) contemplates will occur in a manner consistent with KRS 278.704(3) and prior to a siting certificate application being deemed “complete.”
Just as the first sentence of K.R.S. 278.706(1)(d) cannot be read to allow representations of future intent to comply with zoning and planning requirements to suffice as a “statement certifying that the proposed plant will be in compliance with . . . any local planning and zoning ordinances[,]” without doing violence to the requirement of the second sentence of that same subsection requiring disclosure of “setback requirements established by the planning and zoning commission” (emphasis added), a promise of future compliance is not sufficient to satisfy K.R.S. 278.710(1)(e). This is clear from a reading of K.R.S. 278.710(1)(g), which provides in relevant part that “If a planning and zoning commission has established setback requirements that differ from those under K.R.S. 278.704(2), the applicant shall provide evidence of compliance.” A bare promise to comply in the future is neither “evidence” nor “proof” of compliance.
The Board’s reading of K.R.S. 278.706(1)(d) and K.R.S. 278.710(1)(e) as allowing an applicant simply to commit to future application to and compliance with a local planning and zoning commission’s procedures and established setbacks, has the effect of nullifying the requirements of K.R.S. 278.706(1)(d) and 278.710(1)(g). This Court should not indulge such an interpretation of those statutes, since each portion of the statute should be given effect, and the two statutes should not be construed in a manner that ignores or renders meaningless the requirements to “disclose” and provide “evidence of compliance” with setbacks established by the local planning and zoning unit. Kidd V. Board of Education of McCreary County, Ky. App. 29 S.W.3d 374 (2000).
Further, where the General Assembly contemplated that the Board would have the power to grant construction certificates conditional on the acquisition of other government approvals, it did so explicitly. The rule of statutory construction ejusdem generis, based on the maxim expressio unius est exclusion alterius, has application here since the General Assembly designated the particular governmental approvals that could be obtained subsequent to issuance of the construction certificate and did not include zoning approvals, thus giving rise to the presumption that the exclusion of zoning approvals from that category was intentional. Prudential Ins. Co. of America v. Fuqua's Adm'r, 314 Ky. 166, 171; 234 S.W.2d 666; Ky. 1950). K.R.S. 278.704(1) authorizes the Siting Board to condition the grant of a construction certificate on the applicant subsequently receiving air, waste and water permits. Had the General Assembly contemplated that local zoning and planning setback decisions could occur after Board issuance of a construction certificate, it would not have required disclosure of established setbacks, and would instead have included local zoning and planning approvals as among those for which the Board may condition a construction certificate. The explicit allowance of conditioning of a construction certificate on the applicant subsequently obtaining “necessary air, water, and waste permits” while not including zoning and planning approval as among those that could be later obtained, provides further evidence that the zoning review was intended to precede Board review.
Finally, a review of the mandated contents of the site assessment report underscores that the zoning and planning approval was to precede Board review. One of the key disclosure and analytical requirements of the siting board statute is the "Site Assessment Report," which is prepared by the applicant and submitted to assess the impacts of the proposed facility and to propose mitigation appropriate to those impacts. In specific, KRS 278.708 requires that the completed site assessment report that is to be filed with the application include:
(a) A description of the proposed facility that shall include a proposed site development plan that describes:
* * * 7. Compliance with applicable setback requirements as provided under KRS 278.704(2), (3) or (5)[ .]
KRS 278.708(3)(a)7 (2002).
Absent zoning and planning review, compliance with applicable setback requirements cannot be demonstrated.
There is only one way in which an applicant for a construction certificate can certify that a proposed power plant will be in compliance with zoning and planning requirements and "established" planning commission setbacks, and that is to first obtain planning and zoning agency approval for the project. The reading of KRS 278.706(1)(d) and KRS 278.710(1)(e) adopted by the Board cannot be squared with the last sentence of KRS 278.706(1)(d) nor with KRS 278.710(1)(g), or KRS 278.704(3) and (1). The obligation of the Siting Board was to construe the governing statutes to give effect to the intent of the General Assembly to defer to local planning and zoning agencies concerning compatibility and setbacks. Roland v. Kentucky Retirement Systems, Ky.App., 52 S.W.3d 579 (2001). The failure to have done so necessitates reversal of the Board Order and a remand to the Board with instructions to vacate the November 13, 2003 Order and to deem the application “incomplete.”
For the reasons contained herein, Petitioner Charles T. Walters respectfully requests that the determination of the Kentucky Board on Electric Generation and Transmission Siting granting the application of Kentucky Pioneer Energy, LLC for a merchant power plant construction certificate in Clark County, be vacated and set aside as being arbitrary, capricious, unreasonable and unlawful, and for any and all other relief to which the Petitioner may appear entitled.
Thomas J. FitzGerald
P.O. Box 1070
Frankfort, Kentucky 40602-1070
(502) 875-2845 (fax)
KBA ID. 22370
Counsel for Petitioner Charles Walters