Approvals from local planning and zoning officials can be a challenging first step. This article explains the process related to siting composting and anaerobic digestion facilities.
BioCycle August 2014
Developing a composting facility is a multistep process. Steps in the process include preparing the following: Feedstock Capture Plan, Preliminary Market Capacity Assessment and a Preliminary Manufacturing Plan, conducting a Technology Evaluation, and, importantly, developing a Siting and Approvals Analysis. This last area is one where critical due diligence is needed. (“Due diligence” is a legal concept defined as determining all material facts relative to a proposed action). Key questions to be researched include: Is the site big enough? Are there any environmental issues? Is it zoned correctly? Can I get local government approvals?
Understanding Zoning Approvals
Zoning is derived from land use planning. Land use planning and concern for the built environment originated from a public health focus. The Industrial Revolution of the 19th century caused a rapid growth of coal, steel, and manufacturing industries. In turn, this brought workers and their families from the countryside to the cities in droves. These exploding cities lacked sanitary infrastructures to cope with the swelling masses. Improvised and often crowded housing typically lay adjacent to factories that discharged smoke and other pollutants. Land use planning, which evolved as a mechanism to protect people in those situations (Fallon, 2006), is defined as the systematic assessment of land and water potential, alternatives for land use and economic and social conditions in order to select and adopt the best land use options. The purpose is to put into practice land uses that will best meet the needs of the people while safeguarding resources for the future. The driving force in planning is the need for change, improved management or for a quite different pattern of land use dictated by changing circumstances (FAO, 1993).
Zoning is a device of land use planning employed by local governments in most developed countries. The word is derived from the practice of designating permitted uses of land based on mapped zones which separate one set of land uses from another. Zoning may be use-based (regulating the uses to which land may be put, also called functional zoning), or it may regulate building height, lot coverage (density) and similar characteristics, or some combination of these. Zoning laws typically specify the areas in which agricultural, residential, industrial, recreational or commercial activities may take place, and spell out where and how compatible land uses are allowed, and incompatible (nonconforming) land uses are not.
Some zoning ordinances also regulate the extraction of natural resources from land within the zoned area, others provide space for hospitals, parks, schools, and open space and still others protect places of historical significance within the community.
Zoning is purely a county, city or municipal affair. Though such laws are somewhat universal, the classifications used to describe zoning are not uniform from place to place. For instance, it is not uncommon to find that zoning rules that apply to one part of the community are different in another part of the town, or that one town does a mix of residential uses with some commercial uses but a neighboring community might outlaw such a mix.
Zoning approvals can be classified as “permitted by right,” “permitted by variance,” “permitted subject to Special Exception,” “permitted subject to a Conditional Use permit,” and “not permitted.” A shoe store operating in a commercially-zoned district is an example of “permitted by right,” as is farming in all agricultural zones. A variance is a license to do some act contrary to the usual rules, often justified by existence of hardship. Variances can be use-based (e.g., a dentist office in a residential area) or area-based (e.g., a garage closer to the property line than ordinance allows). A special exception is a permitted use under the zoning ordinance so long as the conditions for its availability stated in the ordinance are met and the proposed use does not seriously infringe upon the health, safety and welfare of the community (e.g., a day care center in a commercial district). Special exceptions often require special criteria to be met (e.g., fencing of play areas at the day care center).
A land use permitted subject to Conditional Use Permit (CUP) is a Special Exception that has to be approved by a governing body. This is the approvals process that most composting and anaerobic digestion (AD) facilities fall into. CUPs give local governments a sense of control over the application, and as most governing body deliberations are public events, CUP hearings give neighbors and other affected parties a voice in the approval process. CUPs can be (and have been) revoked if the facility operation consistently violates one or more conditions of the permit. They can impose reasonable conditions and safeguards. Conditions that have been imposed on composting facilities have included no work on Sundays before 12 noon, no truck traffic on certain streets, and all windrows must be kept covered by fabric covers, among other requirements.
The zoning approval process for CUPs usually requires an application, a scaled site plan, and a description of proposed facility operations. The application and supporting documents are reviewed by zoning staff and in many cases, are reviewed by a standing committee that includes representatives from utilities, public works, transportation, and fire marshal’s offices. The applicant provides answers to questions and provides other requested documentation. The application then goes to the community’s Planning Commission for approval, which usually requires at least one public meeting where the public can make comments on the application. Following Planning Commission approval, the application goes to the elected governing body of the community, where another public hearing is held. The governing body either approves the Planning Commission’s approval, or remands (sends back) the application to the Commission with questions or issues to be addressed. The entire process can take about four to six months, although it can be somewhat faster in smaller communities.
Securing Local Approvals
Composting (or digestion) facilities are very rarely defined in local zoning ordinances and rules. As a result, land use planners and zoning officials tend to classify it as a waste management activity, which is usually a highly restricted land use. “Organics recycling is either not defined or poorly defined in many local land use rules here in California. Because planners do not really understand composting (or digestion) they tend to misclassify it as an industrial, rather than the agricultural land use category we feel it belongs in,” said Rich Flammer, a Principal with the consulting firm Hidden Resources who has helped several composting facilities obtain local approvals. “In the County of San Diego, for example, the Department of Planning and Development Services has authority over determining which projects require minor or major use permits, which require excessively burdensome review under the provisions of the California Environmental Quality Act (CEQA). The way the county is zoned and its Zoning Ordinance written, most proposed composting facilities fall into one of these use categories. The good news is the county is aware of how the Zoning Ordinance is impeding development of more composting infrastructure, and has hired my firm to help rewrite the code.”
One approach that Coker Composting & Consulting has successfully used was to get a zoning text amendment passed, which specifically defined and allowed composting in a particular zoning category:
Composting Facility: A manufacturing facility that processes agricultural and horticultural residuals, municipal residuals and/or industrial residuals using a controlled process of microbial degradation of organic material into a stable, nuisance-free, humus-like agricultural and horticultural product. No toxic, hazardous or radiological residuals can be processed at a composting facility. All primary processing of residuals must take place inside an enclosed building.
“The definition of composting facility in the ordinances is a major problem,” explains Angel Arroyo-Rodriguez, a Solid Waste Planner with Ohio EPA. “Most ordinances only define solid waste disposal facilities. This is usually with the purpose of excluding landfills. However, state law definition of solid waste disposal facility also includes composting facilities. Recently we had a facility denied zoning approval because the community’s ordinances do not allow solid waste disposal facilities. The applicant tried to explain the difference and I offered to talk to the officials and explain the difference but they didn’t want to hear it. We suspect that they heard on the news about the odor issues at a facility in the next county over and just used the definition of solid waste disposal facilities as an opportunity to avoid approving the composting facility.”
Another issue that often occurs is that zoning ordinances make no distinction between large-scale commercial and small-scale community composting, which is viewed as an impediment to the expansion of community-scale composting facilities (ILSR, 2014). For example, in Ohio, the composting regulations published by Ohio EPA exempt any composting facility from permitting that occupies less than 300 square feet, in an effort to promote community composting, but the zoning ordinance of the City of Cleveland would only allow composting facilities in the Unrestricted Industrial Zone (heavy industry areas) unless a zoning variance was obtained.
The public nature of various zoning-related approval processes allows for opportunities for misinformation to influence public comments. A general lack of understanding of composting can breed anxiety and fear. A Google Search of the phrase “composting odors” brings up over 1,200 news articles, mostly negative press coverage. Other concerns brought up at public meetings and hearings include noise, bioaerosols, truck traffic, ground and surface water contamination and declining property values. Applicants seeking zoning approvals for composting and AD facilities should try to get correct information into the hands of decision makers and influencers, as well as the general public.
Zoning is not the only local approval typically required to site a facility. Others include building permits, sediment and erosion control permits and similar local approvals. Lack of familiarity with AD facilities can require significant investment of resources to educate local officials. Bill Jorgenson, Managing Principal of Green Energy LLC, which has built two food and manure digesters on farms in Massachusetts, provides several examples. “There is nothing in the Massachusetts State Building or Fire Codes that addresses farm-based codigestion facilities. We spent a considerable amount of time educating the building officials about the materials we planned to use and educating the fire marshal about what biogas is and how it would be managed at our facilities.” The new dry fermentation AD facility built last year in San Jose, California had its share of challenges with meeting the City of San Jose Fire Code (see “High Solids Anaerobic Digestion + Composting in San Jose,” March/April 2014), and ultimately crafted a unique solution that may serve as a template for future AD plants.
Managing The Approvals Process
The keys to getting local approvals are to be patient, prepared, and — to paraphrase a real estate axiom — educate, educate, educate. “You need a champion for your project; an elected official enthusiastic about your planned facility, and there has to be something in it for the community,” advises Nelson Widell, an environmental consultant with many years’ experience developing composting facilities. “A Community Benefits Agreement was used for development of the Wilmington (Delaware) Organics Recycling Facility” (see sidebar).
Widell notes there is no substitute for comprehensive outreach. “Have coffee in the kitchens of the neighbors, explain everything you have in mind about your facility and take them to visit operating facilities so they can see, smell, touch and feel it. We took many people from the Wilmington area to see Cedar Grove composting in Washington State.” Adds Jorgenson: “Have local people speak to the neighbors, not some hired gun from the big city. Remember what former House Speaker Tip O’Neill said, ‘All politics is local.’”
Flammer adds that project proposers need “to know their technology and know their numbers. ‘I don’t know’ is not a helpful phrase when trying to convince people that your project is well thought-out. Use a team of knowledgeable consultants to help the public understand the issues and know the success stories.”
Keep in mind that the local approvals process is often the primary avenue for citizens to express their concerns about how local government is run. It is best to be completely prepared for any issues about the proposed facility and don’t be surprised if ancillary issues unrelated to the zoning application arise. The key is to be transparent, available, responsive and patient throughout the process, be willing to conduct further research to address concerns and/or bring in an agreed upon third party expert, and set up mechanisms for informed neighbors and community members to stay in touch.
Craig Coker is a Contributing Editor to BioCycle and a Principal in the firm Coker Composting & Consulting (www.cokercompost.com), near Roanoke VA. He can be reached at firstname.lastname@example.org.