KENAI PENINSULA BOROUGH

ORDINANCE 2002-14

(POPP) SUBSTITUTE

AN ORDINANCE AMENDING KPB 21.25 CONDITIONAL LAND USE PERMITS AND ADOPTING KPB 21.28 CONCENTRATED ANIMAL FEEDING OPERATIONS

WHEREAS, concentrated animal feeding operations (CAFOs) are potentially harmful to the environment and surrounding land uses, especially water and air quality; and

WHEREAS, a significant amount of the pollution of the nation's water is from agricultural uses; and

WHEREAS, there are state and federal permits applicable to CAFOs for environmental protection purposes; and

WHEREAS, legitimate and substantial citizen concern has been raised over the noise, air, and water pollution created by CAFOs; and

WHEREAS, CAFOs are often operated or owned by a corporate entity that contracts with individual operators of individual sites; and

WHEREAS, each individual location constitutes a CAFO and may have a negative impact on the water, air, and residential quality of life in the surrounding area; and

WHEREAS, Chapter 6 of the comprehensive plan, Environmental Quality, recognizes citizen concern regarding the effect of air emissions from industrial facilities on human health, vegetation and soils, and water quality; and

WHEREAS, Goal 5.4 of the comprehensive plan recognizes a need to protect the health and safety, and rights of land owners in adopting land use regulations; and

WHEREAS, Goal 5.5 of the comprehensive plan promotes the resolution of land use conflicts by advising developers and investors in advance of borough requirements for land use regulations; and

WHEREAS, Goal 6.1, Action B, of the comprehensive plan requires the borough to work with federal and state agencies to protect public health and environment and provides the borough review other regulations prior to adopting regulations to avoid duplication; and

WHEREAS, the state and federal permits do not fully address the potential local impacts of CAFOs;

WHEREAS, Goal 6.2 of the comprehensive plan is to achieve and maintain a high level of water quality in surface waters, wetlands, groundwater, and marine waters of the Kenai Peninsula Borough; and

WHEREAS, Goal 6.3 of the comprehensive plan is to maintain a high level of air quality and work toward improving air quality in areas where problems may exist; and

WHEREAS, Goal 6.4 of the comprehensive plan encourages the safe handling of toxic substances; and

WHEREAS, Goal 6.5 of the comprehensive plan is to minimize adverse impacts of noise in residential areas;

NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH:

SECTION 1. That KPB 21.25.030 is hereby amended as follows:

21.25.030.  Definitions.

Unless the context requires otherwise, the following definitions apply to CLUPs:

Animal feeding operation means a lot or facility (other than an aquatic animal production facility) where animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period.

a. The same animals need not remain on the lot for 45 days or more; rather, some animals are fed or maintained on the lot 45 days out of any 12-month period, and

b. Animals are "maintained" for purposes of this ordinance when they are confined in an area where waste is generated and/or concentrated or are watered, cleaned, groomed, or medicated in a confined area, even if the confinement is temporary.

c. Two or more animal feeding operations under common ownership are considered, for the purposes of these regulations, to be a single animal feeding operation if they adjoin each other.

d. Slaughterhouses are animal feeding operations.

Animal unit means a unit of measurement for any animal feeding operation calculated by adding the following numbers: the number of slaughter and feeder cattle multiplied by 1.0, plus the number of mature dairy cattle multiplied by 1.4, plus the number of swine weighting over 25 kilograms (approximately 55 pounds) multiplied by 0.4, plus the number of sheep multiplied by 0.1, plus the number of horses multiplied by 2.0.

Animal waste means animal excrement, animal carcasses, feed wasted, process wastewaters or any other waste associated with the confinement of animals from an animal feeding operation.

Animal waste management system means a combination of structures and nonstructural practices serving an animal feeding operation that provides for the collection, treatment, disposal, distribution, storage and land application of animal waste.

Aquifer means a subsurface formation that contains sufficient water-saturated permeable material to yield economical quantities of water to wells and springs.

Aquifer-confining layer means that layer of relatively impermeable soil below an aquifer, typically clay, which confines water.

Child care facility means a place where child care is regularly provided for children under the age of 12 for periods of time that are less than 24 hours in duration and that is licensed pursuant to AS 47.35.005 et seq., excluding child care homes and child care group homes, as currently written or hereafter amended.

Commercial means any use operated for production of income whether or not income is derived, including sales, barter, rental, or trade of goods and services, and including all activities directly subsidiary.

Concentrated animal feeding operation (CAFO) means an animal feeding operation confining at least: (1) 1,000 swine weighing at least approximately 55 pounds; (2) 1,000 slaughter and feeder cattle; (3) 700 mature dairy cattle; (4) 500 horses; (5) 10,000 sheep or lambs; (6) 55,000 turkeys; (7) 100,000 laying hens or broilers (if the facility has continuous overflow watering); (8) 30,000 laying hens or broilers (if the facility has a liquid manure system; (9) 5,000 ducks; (10) 1,000 animal units; or (11) a combination of the above resulting in at least 1,000 animal units. Each individual parcel upon which a CAFO is located is a separate CAFO unless they adjoin each other.

Correctional community residential center (CCRC) means a community residential center, other than a correctional institution, for the short-term or temporary detention of prisoners in transition from a correctional institution, performing restitution, or undergoing rehabilitation or recovery from a legal infirmity. CCRCs may not be used for detention of prisoners who pose a threat or danger to the public for violent or sexual misconduct without imprisonment or physical confinement under guard or twenty-four hour physical supervision. The determination of whether a prisoner poses a threat or danger to the public for violent or sexual misconduct without imprisonment or physical confinement under guard or twenty-four hour physical supervision shall be made by the commissioner of corrections for state prisoners and the United States Attorney General, or the U.S. Director of Bureau of Prisons for federal prisoners.

Correctional institution means a facility other than a correctional community residential center providing for the imprisonment or physical confinement or detention of prisoners under guard or twenty-four hour physical supervision, such as prisons, prison farms, jails, reformatories, penitentiaries, houses of detention, detention centers, honor camps, and similar facilities.

Exhausted means that all material of a commercial quality in a sand, gravel, or material site has been removed.

Federal Prisoners means offenders in the custody or control or under the care or supervision of the United States Attorney General or the Bureau of Prisons.

Liquid manure or liquid animal waste system means any animal waste management system which uses water as the primary carrier of such waste into a primary retention structure.

Multi-purpose senior center is a facility where persons 60 years of age or older are provided with services and activities suited to their particular needs. The services and activities may include, but are not limited to, health examinations, legal assistance, recreation programs, general social activities, telephone reassurance programs, nutrition classes, meals at minimum cost, counseling, protective services, programs for shut-ins and education programs, and that complies with Alaska Statutes 47.60.010--47.60.090, as currently written or hereafter amended.

On-site use means material used entirely within the boundaries of the parcel it was extracted from, or when development of the parcel requires disposal of the material off-site through bartering.

Person shall include any individual, firm, partnership, association, corporation, cooperative, or state or local government.

Prisoner means:

a. a person held under authority of state law in official detention as defined in AS 11.81.900;

b. includes a juvenile committed to the custody of the Alaska Department of Corrections Commissioner when the juvenile has been charged, prosecuted, or convicted as an adult.

Private school is a school comprised of kindergarten through 12th grade, or any combination of those grades, that does not receive direct state or federal funding and that complies with either Alaska Statute 14.45.030 or 14.45.100--14.45.130, as currently written or hereafter amended..

Public school is a school comprised of kindergarten through 12th grade, or any combination of those grades, that is operated by the State of Alaska or any political subdivision of the state.

Sand, gravel or material site means an area used for extracting, quarrying, or conditioning gravel or substances from the ground that are not subject to permits through the state location (mining claim) system (e.g., gold, silver, and other metals), nor energy minerals including but not limited to coal, oil, and gas.

Sand, gravel or material site means an area used for extracting, quarrying, or conditioning gravel or substances from the ground that are not subject to permits through the state location (mining claim) system (e.g., gold, silver, and other metals), nor energy minerals including but not limited to coal, oil, and gas.

Seasonal high groundwater table means the highest level to which the groundwater rises on an annual basis.

Senior housing project means senior housing as defined for purposes of construction or operation in 15 Alaska Administrative Code 151.950(c), as currently written or hereafter amended.

Stable condition means the rehabilitation, where feasible, of the physical environment of the site to a condition that allows for the reestablishment of renewable resources on the site within a reasonable period of time by natural processes.

Water source means a well, spring or other similar source that provides water for human consumptive use.

SECTION 2. That KPB 21.25.040 is hereby amended as follows:

21.25.040.  Permit required for commencement of certain land uses.

A. It shall be unlawful for any person to use land, or to assist another to use land, within the rural district of the Kenai Peninsula Borough for the following uses without first obtaining a permit from the Kenai Peninsula Borough in accordance with the terms of this ordinance:

1. correctional community residential center (CCRC) pursuant to KPB 21.27; [and]

2. commercial sand, gravel or material site pursuant to KPB 21.26; and

3. concentrated animal feeding operation (CAFO).

SECTION 3. That KPB Chapter 21.28 is hereby enacted as follows:

CHAPTER 21.28. CONCENTRATED ANIMAL FEEDING OPERATION PERMITS

21.28.010. Application procedure.

A. In order to obtain a CAFO permit, an applicant shall first complete and submit to the borough planning department a permit application, along with the $0.20 per animal fee. The application shall include the following items:

1. Legal description of the parcel and identification of whether the permit is for the entire parcel or a specific location within a parcel. If the permit is for less than the entire parcel, the specific location within the parcel shall be clearly defined;

2. A site plan including the number of animal units; location; dimensions and building materials of structures; and list of equipment utilized in CAFO operation, including but not limited to feeding floors, water troughs, wash racks, retaining tanks, food, bone, and refuse platforms, and animal waste handling equipment and facilities;

3. All federal and state permits required by KPB 21.28.020;

4. The estimated distance to surface and ground water.

5. Manure handling procedures including the following:

a. the amount of manure generated annually by the facility;

b. the amount of manure used on the facility;

c. the amount of manure to be exported annually from the facility;

d. nutrient application by field or crop group;

e. procedures and provisions for using and disposing of excess manure;

f. practices that relate to manure management, storm-water runoff control, and management practices to protect surface water and ground water.

6. An animal waste plan including the amount and handling facilities and procedures for carcass and animal remains and other animal waste including an animal waste management system.

B. Task Force. After an application is received a three-person task force shall be appointed by the mayor to review the permit. The task force shall consist of one person from local industry, one planning commission member, and a registered voter within the borough who resides outside the cities. Planning staff shall provide support to the task force. The public hearing procedure set forth in KPB 21.25.050 shall be followed. The civil engineer's report required by KPB 21.28.040(4) shall be submitted to the task force for review and approval as part of the permit process. The task force shall make a written recommendation with findings of fact regarding approval or denial of the permit along with any permit conditions to the mayor. The mayor may approve, disapprove, or modify the task force recommendations. If the mayor does not act within 30 days of the issuance of the task force recommendations, the task force recommendations are final. The final decision may be appealed to the board of adjustment pursuant to KPB Chapter 21.20.

21.28.020. Standards for concentrated animal feeding operations.

A. The following standards and requirements apply to conditional land use permits issued for CAFOs:

1. State and federal permits. All applicable federal and state permits must be obtained by an operator prior to submitting a CAFO application to the borough. These permits may include, but are not limited to, State of Alaska Department of Environmental Conservation, Department of Natural Resources, Division of Governmental Coordinator permits and federal Alaska Department of Fish and Game, State of Alaska Department of Natural Resources, and federal Environmental Protection Agency and Department of Agriculture permits. It is the responsibility of the applicant to determine and acquire the necessary permits.

2. CAFOs shall be operated to minimize the negative impacts on surrounding residential uses and air quality and prevent all water contamination.

3. Transportation of waste, animals or other transportation related to the operation of the CAFO shall not damage borough roads.

21.28.030. Permit conditions.

A. The following are conditions for CAFO permits:

1. Fence. If CAFO operations are conducted outside buildings, there shall be a vegetative buffer or fence made of material approved in the CLUP sufficient to contain and screen the operations from view.

2. Setback.

a. There shall be a setback of all CAFO operations, including buildings, sheds, pens, animals, shelters, feeding areas and watering troughs, storage areas and waste areas, of 100 feet from the boundaries of the parcel.

b. The parcel boundaries of a CAFO must be one mile from the parcel boundaries of existing residences and buildings open to the public.

c. Animal waste facilities shall be no less than 660 feet from adjoining property lines and domestic ground and surface water supplies.

3. All state and federal permits must remain in good standing.

4. The task force may require a bond or other reasonable surety in an amount adequate to protect the deleterious affects of violated permit conditions.

5. The task force may require an odor abatement plan based on the recommendations of the consultant retained pursuant to KPB 21.28.040. The odor abatement plan may address issues, including but not limited to, schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to diminish off-site odor.

6. Other conditions appropriate to meet the standards set forth in KPB 21.28.020.

B. The permit must state whether it is being issued for an entire parcel or a portion of parcel. If the permit is issued for a portion of a parcel, the location on the parcel must be defined on the permit.

21.28.040.  Civil Engineer Report.

The application for a CAFO shall be submitted to a licensed professional civil engineer or other qualified professional consultant for a review and report regarding the impact on borough roads, water and air quality and shall be required as a condition of the permit. More than one consultant may be retained as necessary to evaluate the application. Recommendations shall be included as part of the report regarding additional permit conditions to mitigate negative impacts on air and water quality and borough roads. The consultant shall be retained by the borough and the cost defrayed by applicant prior to processing the permit application.

21.28.050.  Prior existing uses.

A. CAFOs are not required to obtain a CLUP if use as a CAFO commenced or was operated before June 4, 2002 provided that the subject use continues on the same parcel. In no event shall a prior existing use be expanded beyond the smaller of the lot, block, or tract lines as they existed on June 4, 2002. If a parcel is further subdivided after June 4, 2002, the pre-existing use may not be expanded beyond the boundaries of the lots, tracts, or parcels it occupied on June 4, 2002.

B. Owners of preexisting CAFOs must apply to be registered as a prior existing use prior to June 2, 2003. If the application is denied or untimely filed, the operator must comply with provisions of this chapter. Such registration shall include the same information required by KPB 21.28.010, and an affidavit by the owner as to the date since which such nonconforming use has existed. A fee may be charged as set by planning commission resolution.

C. The planning director shall make determinations regarding prior existing use status. Notice and an opportunity to make written comments regarding prior existing use status shall be issued to owners of property in a one-half mile radius of the site. After receiving written comments, the planning director may decide whether to register the prior existing use or refer the matter to the planning commission for public hearing. Notice of the public hearing shall be given to persons filing written comments with the planning director prior to the hearing. If the planning director makes a determination, written findings shall be included in the decision which shall be distributed to all persons making written comments. The planning director's decision granting or denying registration may be appealed to the planning commission within 15 days of the date of the notice of decision.

21.28.060.  Permit revocation and renewal.

A. A permit issued pursuant to this chapter may be revoked by the mayor if the applicant fails to comply with the provisions of this chapter. The mayor shall provide at least 30 days' written notice to the permittee of a revocation hearing. The mayor in his discretion may reestablish the task force to investigate and make recommendations to the mayor regarding the revocation. The revocation hearing shall be held by the task force on 30 days' notice to the permittee if the revocation if referred to the task force by the mayor. The notice shall provide specific grounds for the proposed revocation. If the applicant provides written evidence to the mayor demonstrating reasonable compliance with this chapter within the 30-day period, then the revocation hearing may be canceled, at the discretion of the mayor.

B. CAFO operators must apply for permit renewal every five years after the resolution originally granting the permit is recorded. Failure to apply for renewal subjects the operator to permit revocation proceedings. The mayor may reestablish a task force to review the renewal. An appeal of the denial may be taken to the planning commission within 15 days of distribution of the written notice of denial. A renewal application shall be processed pursuant to KPB 21.28.010-030 with public notice given as provided by KPB 21.25.060 when operators:

1. request modification of their permit conditions based on changes in operations set forth in the renewal application,

2. are currently out of compliance with their permit, or

3. have had permit violations within the last two years.

SECTION 4. That this ordinance takes effect immediately upon its enactment.

ENACTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 4TH DAY OF JUNE, 2002.