Special land uses are those uses of land which are not essentially incompatible with

the uses permitted in a zoning district, but possess characteristics or locational qualities which require individual review and legislation in order to avoid incompatibility with the natural environment of the site, the character of the surrounding area, public services and facilities, and adjacent land uses. The purpose of this article is to establish equitable procedures and criteria, which shall be applied in the determination of requests to establish special land uses. In addition, special land uses are a means of implementing changes in land use as envisioned and outlined in the long-range comprehensive plan and shall be utilized as such. The standards for approval and requirements provided for under the provisions of this article shall be in addition to those required elsewhere in this chapter, which are applicable to the special land use under consideration.

(Prior Code, § 5.278; Ord. No. 88-02, 3-12-1988)

This article hereby authorizes the city planning commission to consider special land uses. The following uses of land and structures are eligible to be permitted under this article in the district enumerated, as in any proposed use that is listed in this chapter as an eligible special land use:

(Prior Code, § 5.279; Ord. No. 88-02, 3-12-1988; Ord. No. 90-28, 12-3-1990; Ord. No. 95-24, 8-7-1995; Ord. No. 2017-05, § 10, 4-17-2017; Ord. No. 2018-14, § 4, 12-17-2018; Ord. No. 2024-12, § 5, 10-21-2024)

An application to establish a special land use shall be submitted and acted upon in accordance with the following procedures:

(1)

Any person owning or having an interest in the subject property may file an application for one or more special land use authorizations as provided for in this article. Applications will be available from the zoning administrator and two completed copies, along with all required materials, must be submitted to the zoning administrator, accompanied by the required fee as established by ordinance. No part of any fee shall be refundable and no incomplete application shall be processed. All incomplete applications will be returned to the applicant.

(2)

The applicant must submit and sign a checklist stating the requirements that will be met to assure the board of present and future compliance with the standards required for approval in this chapter and other standards by this chapter affecting the special land use under consideration.

(3)

It is required that a sketch plan be submitted to the zoning administrator to ensure that the zoning administrator and applicant can reach an understanding of what is being proposed and what is required. The sketch plan should be drawn to approximate scale and shall follow the guidelines set forth in section 46-29, pertaining to site plans.

(4)

A detailed site plan will be submitted through the zoning administrator to the planning commission for approval in conformance with section 46-29.

(5)

Hearing. After a preliminary review by the zoning administrator of the sketch plan, and application for a special land use authorization, the planning commission shall hold a hearing on the site plan and special land use request. Notice of the hearing shall be given as required by MCL 125.3502. Any person or individual representing a group, which may be affected by a special land use authorization may present any petition or document providing support for or opposition to the application in question.

(6)

Review and approval. The review and approval of an application and site plan requesting a special land use shall be made by the planning commission in accordance with the procedures and standards specified in this article. If an application and site plan do not meet the requirements of the article, they must be denied for a special land use. However, if the applicant agrees to make changes to the site plan and application in order to bring them into compliance with the article, such changes shall be allowed and shall be either noted on the application or site plan itself, or attached to it, or these documents shall be resubmitted incorporating said changes. A site plan and application for a special land use must be approved if they comply in all respects with the requirements of this article or other applicable county, state or federal laws, rules or regulations. The site plan, application and any statements of conditions and modifications shall become part of the special land use and shall be enforceable as such. The decision to approve or deny a special land use request shall be retained as a part of the record of action on the request and shall incorporate a statement of conclusion, which specifies:

a.

The basis for the decision;

b.

Any changes to the originally submitted application site plan necessary to ensure compliance with this chapter;

c.

Any conditions imposed with approval.

(7)

Rehearing. A rehearing of a case shall be subject to the same rules and costs as an original hearing, and must be based on new information.

(8)

If authorized by the board, the zoning administrator shall document the special land use and retain all pertinent information. It shall be the responsibility of the zoning administrator to monitor compliance with the terms, conditions and restrictions of any special land use and take any enforcement action necessary in the event of a violation of a special land use authorization.

(9)

Once a special land use is approved by the board, all site development and use of land on the property affected shall be consistent with the approved special land use unless a change conforming to chapter requirements receives the mutual agreement of the landowner and the planning commission and is documented as such.

(10)

Performance guarantee. In authorizing a special land use, the planning commission may require that a cash deposit, certified check, irrevocable bank letter of credit, or surety bond be furnished by the developer to ensure compliance with an approved site plan and the special land use requirements. Such guarantee shall be deposited with the city clerk at the time of the issuance of the special land use authorization. In fixing the amount of such performance guarantee, the board shall limit it to reasonable improvements required to meet the standards of this chapter and to protect the natural resources or the health, safety and welfare of the residents of the city and future users or inhabitants of the proposed project or project area including, but not limited to roadways, utilities, sidewalks, screening and drainage. The term "improvements" does not include the entire project which is the subject of zoning approval nor to improvements for which a performance guarantee has been deposited pursuant to Public Act No. 288 of 1967 (MCL 560.101 et seq.). The board and the project developers shall establish an agreeable procedure for the rebate of any cash deposits required under this section, in reasonable proportion to the ratio of the work completed on the required improvements as work progresses. Said agreement shall be written as an element of the conditions surrounding the approval of the special land use.

(Prior Code, § 5.280; Ord. No. 88-02, 3-12-1988; Ord. No. 95-24, 8-7-1995)

State Law reference— Performance guarantee, MCL 125.3505.

Prior to the approval of a special land use, the planning commission shall review all facts submitted to ensure compliance with the following standards as well as applicable standards established elsewhere in this Code:

(1)

General standards. The planning commission may approve a special land use upon a finding of compliance with the following standards:

a.

The special land use shall be designed, constructed, operated and maintained in a manner harmonious with the character of adjacent property and the surrounding area.

b.

The special land use shall not inappropriately change the essential character of the surrounding area.

c.

The special land use shall not interfere with the general enjoyment of adjacent property.

d.

The special land use shall represent an improvement to the use or character of the property under consideration and the surrounding area in general, yet also be in keeping with the natural environment of the site.

e.

The special land use shall not be hazardous to adjacent property, or involve uses, activities, materials or equipment which will be detrimental to the health, safety or welfare of persons or property though the excessive production of traffic, noise, odor, fumes, or glare.

f.

The special land use shall be adequately served by essential public facilities and services, or it shall be demonstrated that the person responsible for the proposed special land use shall be able to continually provide adequately for the services and facilities deemed essential for the special land use under consideration.

g.

The special land use shall not place demands on public services and facilities in excess of current capacity.

h.

The special land use shall be consistent with the intent and purpose of this chapter, and the objectives of the currently adopted long range comprehensive plan.

i.

Outdoor play areas must be secured by a fence with a minimum height of 30 inches, or equivalent structure, such that children will be deterred from unauthorized access to adjacent streets, alleys or other locations which may pose a safety threat, as well as protecting adjoining property. Landscaping may be used in place of a structure, provided said landscaping is determined by the planning commission to be of a character suitable to achieve the desired level of security.

(2)

Specific standards relating to two-family and multiple-family use requests. The following guidelines shall be used when evaluating multiple-family use requests in single-family zones:

a.

Lot size. Fifty percent of the underlying zoning will be added for each additional unit that is proposed.

b.

Lot coverage. The lot coverage for a special land use request shall meet the requirement set forth in the underlying zoning of the area.

c.

Living space. The minimum square footage for the following apartment types shall be:

1.

For a studio apartment, 350 square feet, plus bath.

2.

For a one-bedroom apartment, 550 square feet.

3.

For a two-bedroom apartment, 750 square feet.

4.

For a three-bedroom apartment, 950 square feet.

d.

Parking. Each unit shall have appropriate parking spaces for two vehicles. These spaces must have clear ingress and egress. They also cannot be developed in the required front or side yard setbacks.

e.

Density. Two-family and multiple-family uses in single-family zones shall not be within three times the required lot width of the underlying zoning of each other.

(3)

Specific standards relating to family shelters. In addition to the general standards required in this section, the following additional requirements shall apply when evaluating requests for family shelters:

a.

A family consisting of persons related by blood, marriage or adoption, or no more than four individuals occupying a dwelling unit who are committed to living together as a single housekeeping unit, in harmony with the surrounding neighborhood, responsible for maintaining a common household.

b.

A minimum of 300 feet shall be maintained between family shelters unless within a combination group/family shelter.

c.

A current and unrevoked housing maintenance certificate shall be required for all family shelters.

(4)

Specific standards relating to group shelters and combination group/family shelters. In addition to the general standards required in this section, the following additional requirements shall apply when evaluating requests for group shelters or combination group/family shelters:

a.

Group shelters and combination group/family shelters shall not be permitted in the Downtown Development Authority District or the Historic Districts.

b.

Group shelters and combination group/family shelters shall not be permitted on any property having lake frontage or within 500 feet of Lake Cadillac.

c.

Group shelters and combination group/family shelters shall comply with all applicable federal and Michigan statutory requirements.

d.

Group shelters and combination group/family shelters shall comply with all applicable Uniform Building and Fire Codes, including maximum occupancy restrictions.

e.

Community need, development and operational standards. In addition to the application requirements, group shelters and combination group/family shelters shall comply with all community need, development and operational standards provided in this section.

1.

Community need standards. Any application for a group shelter or combination group/family shelter must demonstrate that the group shelter or combination group/family shelter is needed to take care of the homeless needs that exist within the greater Cadillac area.

2.

Development standards.

i.

Location and separation.

(A)

Group shelters and combination group/family shelters shall be located in an enumerated zoning district where such use is permitted by special land use or special conditions.

(B)

A minimum distance of 1,000 feet shall be maintained between all group shelters and combination group/family shelters.

ii.

Physical characteristics.

(A)

The maximum number of beds, including those of caretakers or resident managers shall be 16 for group shelters. For combination group/family shelters, the maximum number of beds including those of caretakers or resident managers shall be 60.

(B)

Smoke detectors in accordance with the international fire code shall be installed.

(C)

The facility shall provide adequate private living space in accordance with the International Property Maintenance Code.

(D)

All bedrooms shall have emergency escape openings that comply with the building code.

(E)

Adequate bathroom facilities shall be provided.

(F)

A shared/communal area for socializing shall be provided in accordance with the International Property Maintenance Code. For combination group/family shelters containing both a men's and a women's group shelter, a separate shared/communal area shall be provided for both the men's and women's shelter areas in accordance with the International Property Maintenance Code.

(G)

Secure storage areas for the intended residents shall be provided.

(H)

Laundry facilities shall be provided.

(I)

Bicycle racks shall be provided.

(J)

A designated location should be provided for waste receptacles and such receptacles shall be screened from view.

(K)

The size of a group shelter shall be in character with the surrounding buildings in the neighborhood.

(L)

Group shelters shall not be permitted within a commercial multi-tenant shopping center.

3.

Operational and design standards.

i.

If located within 150 feet of a single family residential zoning district, all outdoor activity shall be screened from public view and from the view of adjacent properties.

ii.

If the group shelter or combination group/family shelter plans to offer drug or alcohol abuse counseling to residents of the shelter, the applicant shall advise the city on any state licensing that may be required and demonstrate compliance as appropriate.

iii.

Lighting shall be sufficient to provide illumination and clear visibility to all outdoor areas, with minimal shadows or light leaving the property. Lighting shall be stationary, directed away from adjacent properties and public rights-of-way, and of intensity compatible/comparable with the neighborhood.

iv.

Off-street parking shall be provided at a rate of one vehicle parking space per employee/volunteer plus one vehicle parking space for every six beds.

v.

Adequate management, support staff and security must be present during the hours of operation of the group shelter. A minimum of one supervisory level staff member must be present on the site during hours of operation. Management staff must make best efforts to ensure that loitering does not occur on the property during off-hours and must ensure that clients are not creating a nuisance to the neighborhood.

vi.

The group shelter or combination group/family shelter shall have a minimum of 18 hours per day of operation and the hours of operation shall be posted in a publicly visible and accessible location. Hours of operation means that the shelter is available for occupancy by homeless persons.

vii.

Group shelters and combination group/family shelters shall require that [their] residents participate in wrap-around services which involve individual case management.

viii.

The intake process for new residents should be handled from an internal office within the group shelter or combination group/family shelter.

f.

Management policies. An applicant for a group shelter or combination group/family shelter, as part of the application process, shall prepare and file with the city its management policies as they relate to the following:

1.

A resident identification process;

2.

Timing and placement of outdoor activities;

3.

Standards governing expulsions;

4.

Hours of operation and standard lights-out;

5.

Policies regarding safety and security and to include emergencies;

6.

Smoking policy to include identification of areas where smoking is to be permitted;

7.

Volunteer and donation procedures;

8.

Communications with the city and the neighborhood.

g.

Group shelter or combination group/family shelter approval. The city may deny a proposed group shelter or combination group/family shelter if it makes findings that:

1.

The proposed shelter fails to meet one or more of the required standards of this section or other applicable state or federal law.

2.

The proposed shelter would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development of the shelter financially infeasible. As used in this subsection, a "specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.

If an application is denied, the reasons for that denial shall be recorded in the motion to deny. If an application is approved with conditions, the conditions shall be included in the motion to approve.

(Prior Code, § 5.281; Ord. No. 88-02, 3-12-1988; Ord. No. 89-11, 6-5-1989; Ord. No. 95-24, 8-7-1995; Ord. No. 95-32, 1-15-1996; Ord. No. 2016-13, § 4, 12-19-2016; Ord. No. 2017-05, § 11, 4-17-2017; Ord. No. 2018-14, § 5, 12-17-2018)

The special land use shall become effective when the application has been approved by the planning commission.

(1)

A building permit shall not be issued until approval of such special land use permit by the board.

(2)

Until a building permit has been granted pursuant to the special land use authorization, there shall be no construction or excavation on said land, nor shall use of the land be made toward the intended purposes of such special land use.

(3)

Land subject to a special land use authorization may not be used or occupied for purposes of such special land use until after a certificate of occupancy for same has been issued pursuant to the provisions of this chapter.

(Prior Code, § 5.282; Ord. No. 88-02, 3-12-1988; Ord. No. 95-24, 8-7-1995)

(a)

Approval of a special land use shall be valid regardless of change of ownership, provided that all terms and conditions of the authorization are met. Should the property fail to be used in accordance with the authorization land use or activity, the property will revert to the original zoned use and the special land use will be invalid. If invalidated by the board, the applicant has a right to seek relief from circuit court within 30 days.

(b)

In instances where development authorized by a special land use has not commenced within one year from the date of issuance or the last date of review authorized by this subsection, the planning commission shall review the authorization in relation to the applicable standards and requirements of this chapter. Upon a finding that there has been a change in conditions on the property or the surrounding area or in the provisions of this chapter applicable to the special land use under review, such that the authorization is no longer in conformance with the requirements of this chapter, the authorization shall become null and void upon action by the board. Where it is determined that such authorizations are in conformance with the provisions of this chapter, and there has not been a change in conditions affecting the validity of the authorization, the special land use shall remain valid, subject to periodic review in accord with the provisions of this subsection.

(c)

All special land use authorizations with respect to the approval of a land use or activity, shall be recorded in the office of the register of deeds at the expense of the applicant to be considered valid, and a copy filed with the zoning administrator.

(Prior Code, § 5.283; Ord. No. 88-02, 3-12-1988; Ord. No. 95-24, 8-7-1995)

It shall be the duty and obligation of the owners and occupants or operators of land and uses subject to a special land use authorization, to ensure the continued use of such land shall at all times be in compliance with the use requirements of this chapter. Failure to comply shall be a violation of this chapter and subject to the penalties and remedies provided in section 1-14 and the continuance thereof may be declared to be a public nuisance per se.

(Prior Code, § 5.284; Ord. No. 88-02, 3-12-1988; Ord. No. 95-24, 8-7-1995)

Any special land use authorization that has been granted shall be deemed a conforming use permitted in the district in which such use is located, provided such authorization:

(1)

Was issued in conformity with the provisions of this chapter;

(2)

Shall be deemed to effect only the lot or portion thereof and uses thereupon for which the special land use authorization shall have been explicitly granted; and

(3)

Permits a use, which is subsequently built, operated and maintained in compliance with the chapter the special land use authorization, and all conditions established with its approval.

(Prior Code, § 5.285; Ord. No. 88-02, 3-12-1988; Ord. No. 95-24, 8-7-1995)

In addition to all requirements of section 10-2 of the City Code, any other requirements of this zoning ordinance or the City Code, and any conditions imposed by the planning commission in granting special use approval, adult-use (recreational) marihuana establishments must comply with the following requirements. All terms defined in section 10-2.01 of the City Code have the same meaning when used in this section.

(1)

Establishments must comply with the MRTMA and the MRTMA rules, as well as any other applicable state laws or regulations.

(2)

Co-located establishments are permitted in the city subject to section 10-2.02(c)(1) of the Cadillac City Code.

(3)

Stacked grower licenses are prohibited in the city, except for establishments in the Light Industrial (I-1) and General Industrial (I-2) districts.

(4)

Co-located marihuana establishments and stacked grower licenses are prohibited.

(5)

Establishments shall be sufficiently screened or buffered with a fence, wall, or landscape screen to minimize light spillage, odor, and noise (including noise associated with truck traffic or other machinery), affecting adjacent properties.

(6)

Special use applicants must provide a plan for the storage and disposal of marihuana or chemicals associated with marihuana cultivation, so as to minimize the risk of theft or harm resulting from chemical exposure.

(7)

No marihuana may be stored overnight outside of an enclosed building. By way of example and without limitation, it is unlawful to store marihuana overnight in an outdoor waste bin or a secure transport vehicle parked outdoors.

(8)

Signage for marihuana establishments may be approved pursuant to the generally applicable procedures and standards provided in section 46-664 ("signs"), with the additional restriction that establishment signage may not depict marihuana, marihuana-infused products, or marihuana-related paraphernalia.

(9)

Marihuana establishments must control and eliminate odor as follows:

a.

The building must be equipped with an activated air scrubbing and carbon filtration system for odor control to ensure that air leaving the building through an exhaust vent first passes through an activated carbon filter and air scrubbing system.

b.

The filtration system must consist of one or more fans, activated carbon filters and be capable of scrubbing the air prior to leaving any building. At a minimum, the fan(s) must be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the applicable CFM.

c.

The air scrubbing and filtration system must be maintained in working order and must be in use at all times. The filters must be changed per manufacturers' recommendation to ensure optimal performance.

d.

Negative air pressure must be maintained inside the building.

e.

Doors and windows must remain closed, except for the minimum time length needed to allow people to ingress or egress the building.

f.

An alternative odor control system is permitted if the special use applicant submits a report by a mechanical engineer licensed in the state of Michigan sufficiently demonstrating that the alternative system will eliminate odor as well or better than the air scrubbing and carbon filtration system otherwise required.

(10)

The following minimum-distancing regulations apply:

a.

An establishment may be located within 1,000 feet of a public or private K—12 school or a college or university, subject to subsection (10)(b) and (c). However, an establishment may not be located adjacent to a public or private K—12 school or a college or university.

b.

A grower, processor, or safety compliance establishment may not be located within a district zoned exclusively for residential use.

c.

A retailer or microbusiness may not be located within a district zoned exclusively for residential use or within 100 feet of any existing one-family dwelling.

d.

The distances described in this subsection shall be computed by measuring a straight line from the nearest property line of land used for the purposes stated in this subsection to the nearest property line of the parcel used as a marihuana establishment; provided, however, that for purposes of subsection (c) only, the distance shall be computed by measuring a straight line between the two closest points of the subject buildings.

(11)

The following requirements apply to retailers:

Operational requirements.

a.

Retailers may not be open to customers between the hours of 11:00 p.m. and 8:00 a.m.

b.

Retailers may not receive deliveries between the hours of 9:00 p.m. and 7:00 a.m.

c.

The interior of the establishment must be arranged in a way such that neither marihuana nor marihuana-infused products are visible from the exterior of the establishment.

d.

Consumption of marihuana shall be prohibited in the retail establishment, and a sign shall be posted on the premises of each retail center indicating that consumption is prohibited on the premises.

e.

Retailers shall continuously monitor the entire premises on which they are operated with surveillance systems that include security cameras. The video recordings shall be maintained in a secure, off-site location for a period of 14 days.

f.

The public or common areas of the retail establishment must be separated from restricted or non-public areas of the marihuana establishment.

g.

No drive-through window on the portion of the premises occupied by a retail establishment shall be permitted.

h.

Retailers shall not allow the sale, consumption, or use of alcohol or tobacco products on the premises.

Design requirements.

i.

Appearance. The exterior appearance of a retailer must be compatible with surrounding businesses with respect to façade type, ground floor opacity, size and placement of signage, site layout, etc.

j.

Minimum wall articulation. Building bays shall be a maximum of 30 feet in width. Bays shall be visually established by architectural features such as columns, ribs or pilasters, piers and fenestration pattern. In order to add architectural interest and variety and avoid the effect of a single, long or massive wall with no relation to human size, the following additional standards shall apply:

1.

No wall that faces a street or connecting walkway shall have a blank, uninterrupted length exceeding 30 feet without including at least two of the following: change in plane, change in texture or masonry pattern, windows, or an equivalent element that subdivides the wall into human scale proportions.

2.

Side or rear walls that face walkways may include false windows and door openings defined by frames, sills and lintels, or similarly proportioned modulations of the wall, only when actual doors and windows are not feasible because of the nature of the use of the building.

3.

All sides of the building shall include materials and design characteristics consistent with those on the front. Use of inferior or lesser quality materials for side or rear façades shall be prohibited.

k.

Façades. Façades that face streets or connecting pedestrian frontage shall be subdivided and proportioned using features such as windows, entrances, arcades, arbors, awnings, along no less than 50 percent of the façade.

l.

Entrances. Primary building entrances shall use clear glass and be clearly defined and recessed or framed by a sheltering element such as an awning, arcade or portico in order to provide shelter from the inclement weather.

m.

Windows. Windows shall have clear glass.

n.

Awnings. Awnings shall be no longer than a single storefront.

o.

Base and top treatments. All façades shall have:

1.

A recognizable "base" consisting of, but not limited to: (a) thicker walls, ledges or sills; (b) integrally textured materials such as stone or other masonry; (c) integrally colored and patterned materials such as smooth-finished stone or tile; (d) lighter or darker colored materials, mullions or panels; or (e) planters.

2.

A recognizable "top" consisting of, but not limited to: (a) cornice treatments, other than just colored "stripes" or "bands," with integrally textured materials such as stone or other masonry or differently colored materials; (b) sloping roof with overhangs and brackets; (c) stepped parapets.

p.

Encroachments. Encroachments for special architectural features, such as bay windows, decorative roofs and entry features may be considered; however, in no case may such features be below a height of eight feet.

(12)

The following requirements apply to growers:

a.

Cultivation must occur within an enclosed building with exterior facades consisting of opaque materials typical of an industrial or commercial building. The roof of the building may be constructed of a rigid transparent or translucent material designed to let in light, such as glass or rigid polycarbonate or fiberglass panels. Films or other non-rigid materials cannot be used to construct any component of the building's exterior structure.

b.

Cultivation must be conducted in a manner to minimize adverse impacts on the city's sanitary sewer. The city's public works department shall review all pertinent information relating to sewer discharges and shall provide any pertinent comments on to the planning commission.

(13)

The following requirements apply to processors:

a.

Cultivation must be conducted in a manner to minimize adverse impacts on the city's sanitary sewer. The city's public works department shall review all pertinent information relating to sewer discharges and shall provide any pertinent comments on to the planning commission.

(14)

The following requirements apply to safety compliance facilities:

a.

Cultivation must be conducted in a manner to minimize adverse impacts on the city's sanitary sewer. The city's public works department shall review all pertinent information relating to sewer discharges and shall provide any pertinent comments on to the planning commission.

(15)

The following requirements apply to microbusinesses:

a.

Microbusinesses may not be open to customers between the hours of 11:00 p.m. and 8:00 a.m.

b.

Microbusinesses may not receive deliveries between the hours of 9:00 p.m. and 7:00 a.m.

c.

The exterior appearance of a microbusiness must be compatible with surrounding businesses with respect to façade type, ground floor opacity, size and placement of signage, site layout, etc.

d.

The interior of the establishment must be arranged in a way such that neither marihuana nor marihuana-infused products are visible from the exterior of the establishment.

e.

Consumption of marihuana shall be prohibited in the establishment, and a sign shall be posted on the premises of each microbusiness indicating that consumption is prohibited on the premises.

f.

Microbusinesses shall continuously monitor the entire premises on which they are operated with surveillance systems that include security cameras. The video recordings shall be maintained in a secure, off-site location for a period of 14 days.

g.

The public or common areas of the microbusiness establishment must be separated from restricted or non-public areas of the marihuana establishment.

h.

No drive-through window on the portion of the premises occupied by a microbusiness establishment shall be permitted.

i.

Microbusinesses shall not allow the sale, consumption, or use of alcohol or tobacco products on the premises.

j.

Cultivation must occur within an enclosed building with exterior facades consisting of opaque materials typical of an industrial or commercial building. The roof of the building may be constructed of a rigid transparent or translucent material designed to let in light, such as glass or rigid polycarbonate or fiberglass panels. Films or other non-rigid materials cannot be used to construct any component of the building's exterior structure.

k.

Cultivation must be conducted in a manner to minimize adverse impacts on the city's sanitary sewer. The city's public works department shall review all pertinent information relating to sewer discharges and shall provide any pertinent comments on to the planning commission.

(16)

Special use permit specific to applicant.

a.

Any special use permit granted for a marihuana establishment is unique and specific to the applicant and does not run with the land. The special use permit may be transferred to another marihuana establishment only with city approval and subject to section 10-2.04 of the City Code.

(17)

Violations; remedies; revocation. Notwithstanding any other provision in this zoning ordinance to the contrary, penalties for violations of this subsection shall be as follows:

a.

If at any time an establishment violates the zoning ordinance, any condition imposed through a special use permit, or any other applicable city ordinance or state law or regulation, the city may take any or all of the following actions:

1.

The city may request that LARA revoke or refrain from renewing the establishment's state operating license.

2.

Following notice and a public hearing, the city may revoke the establishment's special use permit.

3.

The city may treat the violation as a municipal civil infraction, for which each day the violation continues will be a separate offense, and impose the following fines:

First violation = $500.00

Second offense = $2,500.00

Each subsequent offense = $5,000.00

4.

The city may seek other appropriate and proper remedies, including actions in law or equity.

(18)

Application to certain transferred area. Notwithstanding any contrary provisions in this zoning ordinance, the following provisions shall apply to the real property ("transferred area") that is the subject of the agreement for the conditional transfer of property dated August 19, 2019 ("Act 425 Agreement"), and recorded with the Wexford County Register of Deeds, and that is also the subject of a consent judgment entered by the Wexford County Circuit Court on September 23, 2019, in Case Nos. 13-24803-CH and 17-27610-CZ:

Marihuana establishments shall be permitted on the transferred area only in accordance with the Act 425 Agreement, consent judgment, and related documents and exhibits. The terms of the Act 425 Agreement and consent judgment supersede any conflicting provisions of this chapter with respect to the transferred area. However, to the extent that the Act 425 Agreement and consent judgment do not conflict with this zoning ordinance, this zoning ordinance shall control and govern any marihuana establishments in the transferred area.

(Ord. No. 2019-14, § 6, 11-18-2019; Ord. No. 2021-17, §§ 1, 2, 12-20-2021)

In addition to all requirements of section 10-3 of the City Code, any other requirements of this zoning ordinance or the City Code, and any conditions imposed by the planning commission in granting special use approval, medical marihuana facilities must comply with the following requirements. All terms defined in section 10-3.01 of the City Code have the same meaning when used in this section.

(1)

Facilities must comply with the MMMFLA and the MMMFLA rules, as well as any other applicable state laws or regulations.

(2)

Co-located facilities are permitted in the city, subject to section 10-3.02(c)(1) of the Cadillac City Code.

(3)

Stacked grower licenses are prohibited in the city, except for facilities in the Light Industrial (I-1) and General Industrial (I-2) districts.

(4)

Co-located marihuana facilities and stacked grower licenses are prohibited.

(5)

Facilities shall be sufficiently screened or buffered with a fence, wall, or landscape screen to minimize light spillage, odor, and noise (including noise associated with truck traffic or other machinery), affecting adjacent properties.

(6)

Special use applicants must provide a plan for the storage and disposal of marihuana or chemicals associated with marihuana cultivation, so as to minimize the risk of theft or harm resulting from chemical exposure.

(7)

No marihuana may be stored overnight outside of an enclosed building. By way of example and without limitation, it is unlawful to store marihuana overnight in an outdoor waste bin or a secure transport vehicle parked outdoors.

(8)

Signage for medical marihuana facilities may be approved pursuant to the generally applicable procedures and standards provided in section 46-664 ("signs"), with the additional restriction that facility signage may not depict marihuana, marihuana-infused products, or marihuana-related paraphernalia.

(9)

Medical marihuana facilities must control and eliminate odor as follows:

a.

The building must be equipped with an activated air scrubbing and carbon filtration system for odor control to ensure that air leaving the building through an exhaust vent first passes through an activated carbon filter and air scrubbing system.

b.

The filtration system must consist of one or more fans, activated carbon filters and be capable of scrubbing the air prior to leaving any building. At a minimum, the fan(s) must be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the applicable CFM.

c.

The air scrubbing and filtration system must be maintained in working order and must be in use at all times. The filters must be changed per manufacturers' recommendation to ensure optimal performance.

d.

Negative air pressure must be maintained inside the building.

e.

Doors and windows must remain closed, except for the minimum time length needed to allow people to ingress or egress the building.

f.

An alternative odor control system is permitted if the special use applicant submits a report by a mechanical engineer licensed in the state of Michigan sufficiently demonstrating that the alternative system will eliminate odor as well or better than the air scrubbing and carbon filtration system otherwise required.

(10)

The following minimum-distancing regulations apply:

a.

A facility may be located within 1,000 feet of a public or private K—12 school or a college or university, subject to subsection (10)(b) and (c). However, a facility may not be located adjacent to a public or private K—12 school or a college or university.

b.

A grower, processor, or safety compliance facility may not be located within a district zoned exclusively for residential use.

c.

A provisioning center may not be located within a district zoned exclusively for residential use or within 100 feet of any existing one-family dwelling.

d.

The distances described in this subsection shall be computed by measuring a straight line from the nearest property line of land used for the purposes stated in this subsection to the nearest property line of the parcel used as a marihuana facility; provided, however, that for purposes of subsection (c) only, the distance shall be computed by measuring a straight line between the two closest points of the subject buildings.

(11)

The following requirements apply to provisioning centers:

Operational requirements.

a.

Provisioning centers may not be open to customers between the hours of 11:00 p.m. and 8:00 a.m.

b.

Provisioning centers may not receive deliveries between the hours of 9:00 p.m. and 7:00 a.m.

c.

The interior of the facility must be arranged in a way such that neither marihuana nor marihuana-infused products are visible from the exterior of the facility.

d.

Consumption of marihuana shall be prohibited in the retail facility, and a sign shall be posted on the premises of each retail center indicating that consumption is prohibited on the premises.

e.

Provisioning centers shall continuously monitor the entire premises on which they are operated with surveillance systems that include security cameras. The video recordings shall be maintained in a secure, off-site location for a period of 14 days.

f.

The public or common areas of the retail facility must be separated from restricted or non-public areas of the marihuana facility.

g.

No drive-through window on the portion of the premises occupied by a retail facility shall be permitted.

h.

Provisioning centers shall not allow the sale, consumption, or use of alcohol or tobacco products on the premises.

Design requirements.

i.

Appearance. The exterior appearance of a provisioning center must be compatible with surrounding businesses with respect to façade type, ground floor opacity, size and placement of signage, site layout, etc.

j.

Minimum wall articulation. Building bays shall be a maximum of 30 feet in width. Bays shall be visually established by architectural features such as columns, ribs or pilasters, piers and fenestration pattern. In order to add architectural interest and variety and avoid the effect of a single, long or massive wall with no relation to human size, the following additional standards shall apply:

1.

No wall that faces a street or connecting walkway shall have a blank, uninterrupted length exceeding 30 feet without including at least two of the following: change in plane, change in texture or masonry pattern, windows, or an equivalent element that subdivides the wall into human scale proportions.

2.

Side or rear walls that face walkways may include false windows and door openings defined by frames, sills and lintels, or similarly proportioned modulations of the wall, only when actual doors and windows are not feasible because of the nature of the use of the building.

3.

All sides of the building shall include materials and design characteristics consistent with those on the front. Use of inferior or lesser quality materials for side or rear façades shall be prohibited.

k.

Façades. Façades that face streets or connecting pedestrian frontage shall be subdivided and proportioned using features such as windows, entrances, arcades, arbors, awnings, along no less than 50 percent of the façade.

l.

Entrances. Primary building entrances shall use clear glass and be clearly defined and recessed or framed by a sheltering element such as an awning, arcade or portico in order to provide shelter from the inclement weather.

m.

Windows. Windows shall have clear glass.

n.

Awnings. Awnings shall be no longer than a single storefront.

o.

Base and top treatments. All façades shall have:

1.

A recognizable "base" consisting of, but not limited to: (a) thicker walls, ledges or sills; (b) integrally textured materials such as stone or other masonry; (c) integrally colored and patterned materials such as smooth-finished stone or tile; (d) lighter or darker colored materials, mullions or panels; or (e) planters.

2.

A recognizable "top" consisting of, but not limited to: (a) cornice treatments, other than just colored "stripes" or "bands," with integrally textured materials such as stone or other masonry or differently colored materials; (b) sloping roof with overhangs and brackets; (c) stepped parapets.

p.

Encroachments. Encroachments for special architectural features, such as bay windows, decorative roofs and entry features may be considered; however, in no case may such features be below a height of eight feet.

(12)

The following requirements apply to growers:

a.

Cultivation must occur within an enclosed building with exterior facades consisting of opaque materials typical of an industrial or commercial building. The roof of the building may be constructed of a rigid transparent or translucent material designed to let in light, such as glass or rigid polycarbonate or fiberglass panels. Films or other non-rigid materials cannot be used to construct any component of the building's exterior structure.

b.

Cultivation must be conducted in a manner to minimize adverse impacts on the city's sanitary sewer. The city's public works department shall review all pertinent information relating to sewer discharges and shall provide any pertinent comments on to the planning commission.

(13)

The following requirements apply to processors:

a.

Cultivation must be conducted in a manner to minimize adverse impacts on the city's sanitary sewer. The city's public works department shall review all pertinent information relating to sewer discharges and shall provide any pertinent comments on to the planning commission.

(14)

The following requirements apply to safety compliance facilities:

a.

Cultivation must be conducted in a manner to minimize adverse impacts on the city's sanitary sewer. The city's public works department shall review all pertinent information relating to sewer discharges and shall provide any pertinent comments on to the planning commission.

(15)

Special use permit specific to applicant.

a.

Any special use permit granted for a medical marihuana facility is unique and specific to the applicant and does not run with the land. The special use permit may be transferred to another medical marihuana facility only with city approval and subject to section 10-3.04 of the City Code.

(16)

Violations; remedies; revocation. Notwithstanding any other provision in this zoning ordinance to the contrary, penalties for violations of this subsection shall be as follows:

a.

If at any time a facility violates the zoning ordinance, any condition imposed through a special use permit, or any other applicable city ordinance or state law or regulation, the city may take any or all of the following actions:

1.

The city may request that LARA revoke or refrain from renewing the facility's state operating license.

2.

Following notice and a public hearing, the city may revoke the facility's special use permit.

3.

The city may treat the violation as a municipal civil infraction, for which each day the violation continues will be a separate offense, and impose the following fines:

First violation = $500.00

Second offense = $2,500.00

Each subsequent offense = $5,000.00

4.

The city may seek other appropriate and proper remedies, including actions in law or equity.

(17)

Application to certain transferred area. Notwithstanding any contrary provisions in this zoning ordinance, the following provisions shall apply to the real property ("transferred area") that is the subject of the agreement for the conditional transfer of property dated August 19, 2019 ("Act 425 Agreement"), and recorded with the Wexford County Register of Deeds, and that is also the subject of a consent judgment entered by the Wexford County Circuit Court on September 23, 2019, in Case Nos. 13-24803-CH and 17-27610-CZ:

Medical marihuana facilities shall be permitted on the transferred area only in accordance with the Act 425 Agreement, consent judgment, and related documents and exhibits. The terms of the Act 425 Agreement and consent judgment supersede any conflicting provisions of this chapter with respect to the transferred area. However, to the extent that the Act 425 Agreement and consent judgment do not conflict with this zoning ordinance, this zoning ordinance shall control and govern any medical marihuana facilities in the transferred area.

(Ord. No. 2019-15, § 6, 11-18-2019; Ord. No. 2021-18, §§ 1, 2, 12-20-2021)

(1)

Definitions.

(a)

"Battery management system" means an electronic regulator that manages a utility-scale battery energy storage system by monitoring individual battery module voltages and temperatures, container temperature and humidity, off-gassing of combustible gas, fire, ground fault and DC surge, and door access and capable of shutting down the system before operating outside safe parameters.

(b)

"Utility-scale battery energy storage facilities" means one or more devices, assembled together, capable of storing energy in order to supply electrical energy, including battery cells used for absorbing, storing, and discharging electrical energy in a utility-scale battery energy storage system with a battery management system.

(c)

"Utility-scale battery energy storage system" means a physical container providing secondary containment to battery cells that is equipped with cooling, ventilation, fire suppression, and a battery management system.

(2)

General provisions. All utility-scale battery energy storage systems are subject to the following requirements:

(a)

All utility-scale battery energy storage systems must conform to the provisions of this city zoning ordinance and all county, state, and federal regulations and safety requirements, including applicable building codes, applicable industry standards, and NFPA 855 "Standard for the Installation of Stationary Energy Storage Systems."

(b)

The city may enforce any remedy or enforcement, including but not limited to the removal of any utility-scale battery energy storage system pursuant to the city zoning ordinance or as otherwise authorized by law if the utility-scale battery energy storage system does not comply with this section 46-754.

(c)

Utility-scale battery energy storage systems are permitted as a special land use only in the General Industrial, I-2 District.

(3)

Application requirements. Utility-scale battery energy storage systems require authorization from the planning commission pursuant to article VI of the city zoning ordinance. In addition to the requirements of article VI, applicants for special land use authorization for utility-scale battery energy storage systems must provide the planning commission with all of the following:

(a)

Fee. Application fee in an amount set by resolution of city council.

(b)

Escrow. A deposit for an escrow account in an amount set by resolution or fee schedule approved by city council. The escrow account is used to cover all costs and expenses associated with the special land use review and/or approval process, which costs can include, but are not limited to, review fees of the city attorney, city planner, and city engineer, as well as any reports or studies which the city anticipates will be required during the review and/or approval process for the application. At any point during the review process, the city may require that the applicant place additional monies into escrow with the city if the existing escrowed funds on account with the city will be insufficient, in the determination of the city, to cover any remaining costs or expenses with the review and/or approval process. If additional funds are required by the city to be placed in escrow and the applicant refuses to do so within 14 days after receiving notice, the city will cease the zoning review and/or approval process until and unless the applicant makes the required escrow deposit. Any escrow amounts in excess of actual cost will be returned to the applicant. An itemized billing of all expenses will be provided to the applicant upon request.

(c)

Location listing. A list of all parcel numbers that will be used by the utility-scale battery energy storage system; documentation establishing ownership of each parcel; and any lease agreements, easements, or purchase agreements for the subject parcels.

(d)

Operations agreement. An operations agreement setting forth the operations parameters, the name and contact information of the operator, the applicant's inspection protocol, emergency procedures, and general safety documentation.

(e)

Photos. Current photographs, videos, and topography maps of the subject property.

(f)

Conceptual plan. A conceptual plan that consists of a graphical computer-generated depiction of how the utility-scale battery energy storage system will appear from all directions.

(g)

Site plan. A site plan that includes all proposed structures and the location of all equipment, as well as all setbacks, the location of property lines, signage, fences, greenbelts and screening, drain tiles, easements, floodplains, bodies of water, proposed access routes, and road rights-of-way. The site plan must be drawn to scale and must indicate how the utility-scale battery energy storage system will be connected to the power grid.

(h)

Agreement with utility. A copy of the applicant's power purchase agreement or other written agreement with an electric utility showing approval of an interconnection with the proposed utility-scale battery energy storage system.

(i)

Maintenance plan. A written plan for maintaining the subject property, including a plan for maintaining and inspecting drain tiles and addressing stormwater management, which is subject to the city's review and approval.

(j)

Decommissioning plan. A decommissioning and land reclamation plan describing the actions to be taken following the abandonment or discontinuation of the utility-scale battery energy storage system, including evidence of proposed commitments with property owners to ensure proper final reclamation, repairs to roads, and other steps necessary to fully remove the utility-scale battery energy storage system and restore the subject parcels, which is subject to the city's review and approval.

(k)

Financial security. Financial security that meets the requirements of this section, which is subject to the city's review and approval.

(l)

Complaint resolution plan. A plan for resolving complaints from the public or other property owners concerning the construction and operation of the utility-scale battery energy storage system, which is subject to the city's review and approval.

(m)

Hazardous waste plan. A plan for managing any hazardous waste, which is subject to the city's review and approval.

(n)

Emergency response plan. A written emergency response plan detailing the applicant's plan for responding to emergencies, including fire emergencies, and analyzing whether adequate resources exist to respond to fires and other emergencies. If adequate resources do not exist, the applicant shall identify its plan for providing those resources. The emergency plan shall include identification of potential hazards to adjacent properties, public roadways, and to the community in general that may be created, as well as plans for immediate cleanup, long-term monitoring, and continued mitigation efforts following an emergency.

(o)

Fire protection plan. A fire protection plan, which identifies the fire risks associated with the utility-scale battery energy storage system; describes the fire suppression system that will be implemented, including the manufacturer of the fire suppression system, its operations, and its capacity to extinguish fires; describes what measures will be used to reduce the risk of fires re-igniting (i.e., implementing a "fire watch"); identifies the water sources that will be available for the local fire department to protect adjacent properties; identifies a system for continuous monitoring, early detection sensors, and appropriate venting; and explains all other measures that will be implemented to prevent, detect, control, and suppress fires and explosions.

(p)

Fire training and equipment. A written description of specialized training and/or equipment necessary for handling fires and/or other emergencies at the utility-scale battery energy storage system site. The training plan must include, at a minimum, annual emergency response training for local firefighters and other local emergency personnel at the site of the utility-scale battery energy storage system.

(q)

Transportation plan. A transportation plan for construction and operation phases, including any applicable agreements with the county road commission and Michigan Department of Transportation, which is subject to the city's review and approval.

(r)

Indemnification. An attestation that the applicant will indemnify and hold the city harmless from any costs or liability arising from the approval, installation, construction, maintenance, use, repair, or removal of the utility-scale battery energy storage system, which is subject to the city's review and approval.

(s)

Environmental regulation compliance. Proof of environmental compliance, including compliance with Part 31, Water Resources Protection, of the Natural Resources and Environmental Protection Act; (MCL 324.3101 et seq.); Part 91, Soil Erosion and Sedimentation Control (MCL 324.9101 et seq.) and any corresponding County ordinances; Part 301, Inland Lakes and Streams, (MCL 324.30101 et seq.); Part 303, Wetlands (MCL 324.30301 et seq.); Part 365, Endangered Species Protection (MCL 324.36501 et seq.); and any other applicable laws and rules in force at the time the application is considered by the city.

(t)

Proof of insurance. Proof of the owner/operator's required insurance.

(u)

Code compliance. Compliance with the Michigan Uniform Building Code and National Electric Safety Code. Construction of utility-scale battery energy storage facilities shall comply with the most current version of the Michigan Uniform Building Code and National Electrical Code adopted by the enforcing agencies as a condition of any special land use authorization under this section.

(v)

Additional information. Any additional information or documentation requested by the planning commission, city council, or other city representative.

(4)

Site plan requirements. In addition to the site plan requirements of section 46-29, site plans for special land use authorization for utility-scale battery energy storage systems must include all of the following:

(a)

Proposed locations. Location of all proposed structures and buildings, including equipment, transformers, and substations, on the subject parcel.

(b)

Existing locations. Location of all existing structures or buildings on the subject parcel and location of all existing structures or buildings on adjacent parcels within 1,000 feet of the property lines of the subject parcel.

(c)

Depictions. Depiction of all setbacks, property lines, fences, signs, drain tiles, easements, flood plains, bodies of water, proposed access routes, and road rights-of-way.

(d)

Connection. Indication of how and where the system will be connected to the power grid.

(e)

Land clearing. Plan for any land clearing and grading required for the installation and operation of the system.

(f)

Construction schedule. Anticipated construction schedule and completion date. As a condition of any special land use or site plan approval, hours of construction shall be limited to Monday through Friday from 7:00 a.m. to 5:00 p.m. with no construction on Saturday, Sunday, or any federally recognized holiday.

(g)

Sound study. Sound modeling study including sound isolines extending from the sound sources to the property lines.

(h)

Additional studies. Any additional studies requested by the planning commission, including but not limited to the following:

1.

Environmental analysis. An analysis by a third-party qualified professional to identify and assess any potential impacts on the natural environment including, but not limited to, removal of trees, wetlands and other fragile ecosystems, wildlife, endangered and threatened species. If required, the analysis will identify all appropriate measures to minimize, eliminate or mitigate adverse impacts identified and show those measures on the site plan, where applicable.

2.

Stormwater study. An analysis by a third-party qualified professional studying the proposed layout of the utility-scale battery energy storage system and how the spacing, row separation, and slope affects stormwater infiltration, including calculations for a 100-year rain event. Percolation tests or site-specific soil information shall be provided to demonstrate infiltration on-site without the use of engineered solutions.

3.

Glare study. If the utility-scale battery energy storage system includes solar panels, then an analysis by a third-party qualified professional to determine if glare from the solar panels will be visible from nearby airports, air strips, residences, and roadways may be required. The analysis will consider the changing position of the sun throughout the day and year and its influences on the solar panels.

(i)

Conceptual layout plan. Applicants shall submit a conceptual layout plan for review prior to submission of a formal site plan. The conceptual site plan shall consist of a map and summary of the proposed development or land use, indicating the lands to be included, a brief description of the proposed project, a timeline for the proposed project, and any other information applicant deems necessary to provide the planning commission with a general overview and layout of the proposed project. The conceptual layout plan shall be reviewed by the planning commission to allow for discussion and feedback to the applicant.

(j)

Approvals from other agencies. Final site plan approval may be granted only after the applicant receives all required federal, state, and local approvals, including any applicable approval by the state historic preservation office. Applicant shall provide copies of all review letters, final approved plans, and reports issued by any other governing agencies to the city.

(k)

Topographical grades. The site plan must show the existing topographical grades in two-foot intervals and conditions of all participating property at the time of application.

(l)

Soil test. A baseline soil test including cation exchange capacity (CEC) shall be provided to the city prior to any construction.

(m)

Dust control. A written description of how the applicant will address dust control during construction. Such plan shall, at a minimum, consist of water applications at least three times per day unless it has rained in the preceding three hours of the planned application.

(5)

System and location requirements. In addition to the requirements applicable to the General Industrial, I-2 District, utility-scale battery energy storage systems must meet or exceed all of the following:

(a)

Lighting. Lighting of the utility-scale battery energy storage system is limited to the minimum light necessary for safe operation. Illumination from any lighting must not extend beyond the perimeter of the lot(s) used for the utility-scale battery energy storage system. The utility-scale battery energy storage system must not produce any glare that is visible to neighboring lots or to persons traveling on public or private roads. Flashing or intermittent lights are prohibited.

(b)

Security fencing. Security fencing must be installed around all electrical equipment related to the utility-scale battery energy storage system. Appropriate warning sings must be posted at safe intervals at the entrance and around the perimeter of the utility-scale battery energy storage system.

(c)

Noise. All noise measurements are to be instantaneous and shall not be averaged. The noise generated by a utility-scale battery energy storage system must not exceed the following limits, as measured at the property line of any adjacent parcel:

1.

40 dBA Lmax between the hours of 7:00 a.m. and 9:00 p.m.

2.

35 dBA Lmax between the hours of 9:00 p.m. and 7:00 a.m.

3.

The owner/operator of the utility-scale battery energy storage system shall annually provide for a sound analysis or modeling, conducted by an auditory expert chosen by the city, at the expense of the applicant.

(d)

Underground transmission. All power transmission or other lines, wires, or conduits from a utility-scale battery energy storage system to any building or other structure must be located underground at a depth that complies with current National Electrical Code standards, except for power switchyards or the area within a substation.

(e)

Drain tile inspections. The utility-scale battery energy storage system must be maintained in working condition at all times while in operation. The applicant or operator must inspect all drain tile at least once every two years by means of robotic camera, with the first inspection occurring before the utility-scale battery energy storage system is in operation. The applicant or operator must submit proof of the inspection to the city. The owner or operator must repair any damage or failure of the drain tile within 60 days after discovery and submit proof of the repair to the city. The city is entitled, but not required, to have a representative present at each inspection or to conduct an independent inspection.

(f)

Fire protection.

1.

Before any construction of the utility-scale battery energy storage system begins, the city's fire department (or fire department with which the city contracts for fire service) will review the fire protection plan submitted with the application. The fire chief will determine whether the fire protection plan adequately protects the city's residents and property and whether there is sufficient water supply to comply with the fire protection plan and to respond to fire or explosion incidents. If the fire chief determines that the plan is adequate, then the fire chief will notify the city of that determination. If the fire chief determines that the plan is inadequate, then the fire chief may propose modifications to the plan, which the applicant or operator of the utility-scale battery energy storage system must implement. The fire chief's decision may be appealed to city council, and city council will hear the appeal at an open meeting. City council may affirm, reverse, or modify the fire chief's determination. City council's decision is final, subject to any appellate rights available under applicable law.

2.

The applicant or operator may amend the fire protection plan from time-to-time in light of changing technology or other factors. Any proposed amendment must be submitted to the fire department for review and approval under subsection 1.

3.

The utility-scale battery energy storage system must comply with the fire protection plan as approved by the fire chief (or as approved by city council in the event of an appeal).

(g)

Insurance. The applicant or operator will maintain property/casualty insurance and general commercial liability insurance in an amount of at least $5,000,000.00 per occurrence. The city shall be listed as an additional insured on each policy.

(h)

Permits.All required county, state, and federal permits must be obtained before the utility-scale battery energy storage system begins operating. A building permit is required for construction of a utility-scale battery energy storage system, regardless of whether the applicant or operator is otherwise exempt under state law.

(i)

Decommissioning. If a utility-scale battery energy storage system is abandoned or otherwise nonoperational for a period of one year, the property owner or the operator must notify the city and must remove the system within six months after the date of abandonment. Removal requires receipt of a demolition permit from the building official and full restoration of the site to the satisfaction of the zoning administrator. The site must be filled and covered with top soil and restored to a state compatible with the surrounding vegetation. The requirements of this subsection also apply to a utility-scale battery energy storage system that is never fully completed or operational if construction has been halted for a period of one year.

(j)

Financial security. To ensure proper decommissioning of a utility-scale battery energy storage system upon abandonment, the applicant must post financial security in the form of a security bond, escrow payment, or irrevocable letter of credit in an amount equal to 125 percent of the total estimated cost of decommissioning, code enforcement, and reclamation, which cost estimate must be approved by the city. The operator and the city will review the amount of the financial security every two years to ensure that the amount remains adequate. This financial security must be posted within 15 business days after approval of the special use application.

(k)

Extraordinary events.If the utility-scale battery energy storage system experiences a failure, fire, leakage of hazardous materials, personal injury, or other extraordinary or catastrophic event, the applicant or operator must notify the city within 24 hours.

(l)

Annual report. The applicant or operator must submit a report on or before January 1 of each year that includes all of the following:

1.

Current proof of insurance;

2.

Verification of financial security; and

3.

A summary of all complaints, complaint resolutions, and extraordinary events.

(m)

Inspections. The city may inspect a utility-scale battery energy storage system at any time by providing 24 hours advance notice to the applicant or operator.

(n)

Transferability. Special use authorization for a utility-scale battery energy storage system is transferable to a new owner. The new owner must register its name and business address with the city and must comply with this section and all approvals and conditions issued by the city.

(o)

Remedies. If an applicant or operator fails to comply with this section, the city may pursue any remedy or enforcement, including but not limited to the removal of any utility-scale battery energy storage system pursuant to this section or as otherwise authorized by law. Additionally, the city may pursue any legal or equitable action to abate a violation and recover any and all costs, including the city's actual attorney fees and costs

(6)

Utility-scale battery energy storage systems under PA 233. On or after November 29, 2024, once PA 233 of 2023 is in effect, the following provisions apply to utility-scale battery energy storage systems with a nameplate capacity of 50 megawatts or more and an energy discharge capability of 200 megawatt hours of more.

To the extent these provisions conflict with the provisions in subsections 46-754(1)—(5), these provisions control as to such utility-scale battery energy storage systems. This subsection 46-754(6) does not apply if PA 233 of 2023 is repealed, enjoined, or otherwise not in effect, and does not apply to utility-scale battery energy storage systems with a nameplate capacity of less than 50 megawatts and an energy discharge capability of less than 200 megawatt hours. All provisions of subsections 46-754(1)—(5) that do not conflict with this subsection 46-754(6) remain in full force and effect.

(a)

Setbacks. Utility-scale battery energy storage systems must comply with the following minimum setback requirements, with setback distances measured from the nearest edge of the perimeter fencing of the facility:

(b)

Installation. Utility-scale battery energy storage systems must comply with the version of NFPA 855 "Standard for the Installation of Stationary Energy Storage Systems" in effect on the effective date of the amendatory act that added this section or any applicable successor standard.

(c)

Noise. Utility-scale battery energy storage systems must not generate a maximum sound in excess of 55 average hourly decibels as modeled at the nearest outer wall of the nearest dwelling located on an adjacent nonparticipating property. Decibel modeling shall use the A-weighted scale as designed by the American National Standards Institute.

(d)

Lighting. Utility-scale battery energy storage systems must implement dark sky-friendly lighting solutions.

(e)

Environmental regulations. Utility-scale battery energy storage systems must comply with applicable state or federal environmental regulations.

(f)

Host community agreement. The utility-scale battery energy storage system applicant shall enter into a host community agreement with the city. The host community agreement shall require that, upon commencement of any operation, the utility-scale battery energy storage facility owner must pay the city $2,000.00 per megawatt of nameplate capacity located within the city. The payment shall be used as determined by the city for police, fire, public safety, or other infrastructure, or for other projects as agreed to by the city and the applicant.

(Ord. No. 2024-12, § 3, 10-12-2024)