County Attorney discusses Road Use and Decommissioning Agreements on Solar Farms

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County Attorney Jim Clevenger brought up the large-scale solar energy system that Tamarack Solar is planning to build near Burr Oak during the commissioner’s meeting on Monday.

The attorney said, “Under either the existing county solar energy system regulations or the new Plan Commission large-scale solar energy system regulations, a company seeking approval for a project must enter into a Road Use Agreement and a Decommissioning Agreement with the County.”

County Highway Superintendent Jason Peters and the county attorney have spent considerable time on creating the county’s Road Use Agreement.  Clevenger said, “The proposal from Tamarack was more in general and required Marshall County roads and drainage to be in as-good-as condition after construction as before construction began.  Their proposal presents the idea that more details will follow.”

The county’s highway superintendent is aware of the farmers who are participating in the project and the roads that are involved.  He prefers a more detailed up-front concerning the county roads that will be impacted by the project.  Peters and the attorney have revised the proposal and created the county’s own Road Use Agreement and will provide a copy to Tamarack.

Clevenger said he’s sure Tamarack will want clarification on some of the provisions and will want to negotiate on other provisions in the agreement.  The county attorney said, “We were very protective of the county roads in that Road Use Agreement.” 

Clevenger said he reviewed the proposed Decommissioning Agreement from Tamarack and said he has questions and comments.  He said County Plan Director Ty Adley is working with him and they are reviewing decommissioning agreements from other counties.  He said, “Even though the primary responsibility related to decommissioning will fall on the landowners that have solar farm leases, I want to make sure the county is protected.”  Clevenger recommended the county hire an energy lawyer with expertise in this area to assist the county in making sure the county is properly protected.”  He said Tamarack is open to the prospect of reimbursing reasonable attorney fees for both the county attorney and an energy lawyer representing the county. 

Clevenger told the commissioners if they were inclined to want to move in that direction, he would propose a list of names of energy lawyers who have done this for other counties. He would do some reference work before selecting the names.

Commissioner Kevin Overmyer was supportive of hiring an energy lawyer with experience to protect the county.  He suggested having the county attorney bring a couple of names for them to consider.

Commissioner Stan Klotz wanted to wait until they heard from the Unsafe Building attorney and the County Council’s attorney.

Clevenger told Klotz, “I know that Janette (Surrisi) is handling that but I’m the Unsafe Building attorney.”  Clevenger said he wasn’t sure how the Unsafe Building Board would fit with the solar farms and secondly, she has expressed her personal position opposed to solar farms.  His concern was having assistance with biases which would create issues for the county from a litigation standpoint down the road.

At that point, Commissioner Klotz said, “I hate to tell you this, I think we already got that.”  He said we already have that from board members on the Plan Commission and said, “I think that ship has already sailed.” 

Mr. Clevenger also questioned the expertise of the County Council’s attorney Marcel Lebbin in dealing with solar farms and decommissioning agreements.  Clevenger said he too represents a body that has come out strongly opposed to solar farms. 

Attorney Clevenger said the county needs someone with an objective point of view, with experience or specialization in the issue to best protect the county. 

Commissioner Klotz suggested waiting until Commissioner Mike Burroughs is back to take any action and the discussion was ended.