What exactly is a Special Exception?
Indiana Code does not define the term “special exception”, but it is generally understood that they are uses of property that may be allowed under specified conditions. Special exceptions also called special uses, contingent uses and conditional uses are intended to be considered on a site-specific basis. State statute specifies that a board of zoning appeals shall approve or deny special exceptions “from the terms of the zoning ordinance, but only in the classes of cases or in the particular situations specified in the zoning ordinance. The board may impose reasonable conditions as a part of its approval.” Note that the BZA may also require written commitments for special exceptions.
Indiana Code leaves it up to local government to define what uses in what zoning districts should be special exceptions, but examples might include institutional uses (i.e., schools), drive-through businesses, etc. Indiana Code does not specify a set of IC 36-7-4-918.2 et. seq. criteria for use in considering special exceptions, again leaving it to the discretion of local government.
This is how Jefferson County Addresses Special Exceptions
Jefferson Countys' UDO & Comprehensive Plan
These are the governing documents pertaining to Special Exceptions
This is Orion’s Special Exception Application Submitted to the Jefferson County Board of Zoning Appeals
Orion’s application has to meet all the requirements in the UDO and conform with the Comprehensive Plan. The BZA must determine:
That the use will not be detrimental to or endanger the public health, safety, morals, or general welfare; It will not be injurious to the use and enjoyment of other proerty in the immediate vicinity; it will not impede or substantially alter the normal and orderly development and improvment of surrounding properties.
Every single detail in the application must be confirmed. It is up to “We The People” to help the BZA to identify inconsistencies, omissions, and errors in the application and in the provided studies from Orion’s paid-off experts. As the saying goes, figures lie and liars figure.
Let's start with some key definitions in the unified plan and how it may apply to Orion's application.
a. AG Purpose. The Agricultural District (“AG”) is intended to preserve and protect prime agricultural land by controlling the indiscriminate infiltration of urban development and incompatible land uses into these agricultural areas.
b. AG General Standards.
i. All subdivisions require subdivision approval unless exempt (See Chapter 5: Exempt Subdivisions).
ii. All new primary structures require Development Plan approval except single-family dwellings, two-family dwellings, and agricultural uses.
iii. All development may be subject to Drainage Board approval.
iv. One primary use is permitted per parcel.
Solar Energy Systems are listed as a Primary Exception Use in the AG District.
Solar Energy Systems (SES) Use Standards on pages 64-70
(It is important to note that the ordinance could never fathom the size and scope of Orion’s 473 MW Utility-Scale Solar plant on 3,890 acres. Compare the use descriptions under the Industrial Districts which more accurately describe this project. This is one reason why the Plan Commission as appointed a technical committee to address the deficiencies in the current solar ordinance).
v. BZA Public Hearing. The BZA shall consider the special exception, variance from development standards, or variance of use at a public hearing. The applicant or his/her representative shall be in attendance to present the plan and address any questions or concerns of the BZA. Public comments are permitted in accordance with the BZA Rules and Procedures.
Prior to approval, the BZA shall find that ALL of the following standards for the applicable application type have been satisfied.
1) Standards for Evaluating a Special Exception.
a) The establishment, maintenance, or operation of the special exception will not be detrimental to or endanger the public health, safety, morals, or general welfare;
b) The special exception will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted;
c) The establishment of the special exception will not impede or substantially alter the normal and orderly development and improvement of surrounding property for uses permitted in the district;
d) Adequate utilities, access road, drainage, and other necessary facilities have been or are being provided;
e) Adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion on the public roadways; and
f) The special exception will be located in a district where such use is permitted and all other requirements set forth in this UDO that are applicable to such use will be met.
Citizen Planning Guides
How our government is supposed to work
Supplemental Documents to Orion's Application
