We’re proud to announce the release of a new LPDD model law, a model biogas zoning ordinance. The ordinance was drafted by Chase Raines of Arnold & Porter LLP, and received peer review from Romany Webb at the Sabin Center for Climate Change Law. It is available to view here.
Excerpted from the introductory memorandum to the model law:
One of the challenges to biogas production is that production facilities are not readily classified under most existing zoning laws, which can slow project development and increase transaction costs for creating new biogas production facilities. Most zoning laws permit certain established uses in a zone with minimal regulatory requirements, but require conditional use permits, variances, exemptions, special use permits, and other more onerous regulatory requirements for novel land uses not specifically contemplated by zoning regulations. These special regulatory devices usually require a hearing or specific zoning authority approval, so that the zoning authority can evaluate the individual facts of the land use and determine whether it is appropriate within the proposed zone. Because biogas production facilities are relatively uncommon, they usually do not fit within existing zoning regulations and must go through a more difficult special approval process. Additionally, biogas production facilities are cross-cutting in some ways, which further makes it difficult to simply slot them into one of the approved uses for a certain zone. For example, biogas production facilities are often placed on agricultural lands where they can take advantage of close proximity to manure and agricultural waste products, but lands zoned as “agricultural” may not normally accommodate energy production facilities without some sort of special zoning procedures.
The model regulations proposed here address only biogas production facilities and not other renewable gas facilities. They seek to provide a template for local governments to amend their zoning regulations to make biogas production facilities a contemplated and accepted use, which would make development of such facilities quicker and less costly.
These proposed regulations are closely based on California, Kentucky, and Hawaii statutes and proposed ordinances, and represent two alternative statutory approaches for accommodating biogas production facilities. The first approach is slightly broader and more adaptable. The definition of “biogas production facility” is added at the beginning of the zoning regulations, and the term “biogas production facility” is simply added to each zone in which it would be an approved use. Local governments might consider adding similar provisions to their codes to simplify the process for creating biogas production facilities. The second approach is more specific, contemplating that the common biogas production facility will be one associated with agricultural lands. Thus, this regulatory language amends the definition of approved uses on agricultural lands to describe biogas production facilities and associated buildings and land uses.