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HomeMy WebLinkAbout04-24-22 Public Comment - M. Lilly - Electrification of Subdivisions - Mike Lilly DocumentFrom:Terry Cunningham To:Cyndy Andrus; I-Ho Pomeroy; Jennifer Madgic; Christopher Coburn; Jeff Mihelich; Jon Henderson; Natalie Meyer;Anna Bentley; Chris Saunders; Greg Sullivan; Agenda Subject:Electrification of Subdivisions - Mike Lilly Document Date:Sunday, April 24, 2022 7:43:16 AM Attachments:Mike Lily Electrification Document.docx Mike Lilly, a local attorney with an interest in environmental / climate change issues sent me the attached document, which argues that the city should - and has the right to - change its UDC to require electricity-only utility hookups in new subdivisions. I promised Mike I'd pass it along to the people / groups he references in his note to me: "Terry: Attached is a final draft of my Memorandum arguing that the Commission should condition the approval of all new major subdivisions upon a design that uses electricity, and not natural gas, as its power source. As you can see, I have directed it to the Commission and Sustainability Committee. If you think it should be addressed differently, let me know. If you agree that the recipients are the appropriate parties, would you be willing to distribute it to them. I hope I might have an opportunity to discuss it with the Commission and/or Sustainability Committee after they have had a chance to review it and share it with the City Attorney, Planner, Engineer, Sustainability Officer, or other appropriate City official. " Terry Cunningham - City Commissioner City of Bozeman | 121 North Rouse Avenue | P.O. Box 1230 | Bozeman, MT 59771 P: 406.595-3295 | E: Tcunningham@bozeman.net | W: www.bozeman.net TO: BOZEMAN CITY COMMISSION AND SUSTAINABILITY COMMITTEE FROM: MICHAEL J. LILLY DATE: April 20, 2022 RE: SUBDIVISION REIVEW/CLIMATE ACTION PLAN INTRODUCTION The Commission should condition the approval of all new major subdivisions upon a design using electricity, and not natural gas, as their power source. The imposition of such a condition would be an important step in reaching the goals of the Bozeman Climate Plan to address climate change. Such a condition is authorized by the Montana Subdivision and Platting Act, the Bozeman subdivision regulations, and the Bozeman Community Plan. The Bozeman Climate Plan acknowledges that climate change is real and that human activity is a significant contributing factor. It observed that the use of natural gas in commercial and residential buildings was a major contributor to climate change. As a result, it committed the City to advancing “innovative, actionable solutions to mitigate climate change”, including the electrification of all buildings by 2050. The Montana Subdivision and Platting Act provides the Commission with such a solution. It allows the Commission to impose conditions upon the approval of a major subdivision to promote public health and assure its construction is in harmony with the natural environment. Consequently, the Commission has the authority to impose conditions on a major subdivision to minimize its impact on climate change. By conditioning the approval of major subdivisions on their use of electricity, and not natural gas, the Commission can minimize their adverse impact on the public health and natural environment. At the same time, the Commission can save building owners the cost of converting their buildings from natural gas to electricity in the future. NorthWestern Energy does not have a right to provide natural gas service to Bozeman residents and Bozeman residents do not have a right to natural gas services. On the other hand, Bozeman has the authority to grant or deny NorthWestern Energy the right to use its streets and alleys for the purpose of laying gas pipelines. As a result, the imposition of the proposed condition does not encroach upon the authority of the Montana Public Service Commission (“PSC”) in its exercise of jurisdiction over NorthWestern Energy. For these reasons, the Commission should condition the approval of major subdivisions upon a design that uses electricity, and not natural gas, as their power source. Such a condition is authorized by the Subdivision and Platting Act and compelled by the subdivision regulations and Bozeman Community Plan. THE SUBDIVISION AND PLATTING ACT AUTORIZES BOZEMAN TO CONDITION THE APPROVAL OF A MAJOR SUBDIVSION UPON A DESIGN THAT USES ELECTICITY, AND NOT NATURAL GAS, AS ITS POWER SOURCE. The Montana Subdivision and Platting Act. The Montana Subdivision and Platting Act (“Act”) serves several purposes. Those purposes relevant to this memorandum are described in the following terms: “(1) promote the public health, safety and general welfare by regulating the subdivision of land; …” and “(9) require development in harmony with the natural environment.” Section 76-3-102(1) & (5), M.C.A. The Act empowers the Commission to review a proposed subdivision and then approve, conditionally approve, or deny it to fulfill these purposes. Section 76-3-608, M.C.A. The Act requires Bozeman to adopt subdivision review regulations to govern its exercise of that power. Section 76-3-501, M.C.A. Those regulations must “reasonably” provide for several concerns, including: (9) the avoidance of subdivisions that would involve unnecessary environmental degradation and danger of injury to public health, safety, or welfare by natural hazard, including but not limited to fire and wildland fire, or the lack of water… . Bozeman has adopted subdivision regulations in compliance with this section. They are codified in the Unified Development Code (“UDC”) at 38.200.010 UDC et. seq. Bozeman Subdivision Regulations. That UDC’s stated intent, among others, is “to prevent demonstrable adverse impacts of development on public safety, health and general welfare; … to implement the city’s adopted growth policy; and to meet the requirements of state law. 38.200.010A, UDC. The UDC’s stated purpose, among others, is to protect the public safety, health and general welfare by “… being in accord with the adopted growth policy… requiring development in harmony with the natural environment ….“ 38.200.010B, UDC. To fulfil that purpose, the UDC authorizes the Commission to require the developer to “minimize potentially significant adverse impacts. 38.200.010H, UDC The UDC sets forth the criteria to be considered by the Commission when reviewing a subdivision application: The basis for the City Commission’s decision to approve, conditionally approve or deny the subdivision is whether the subdivision application, public hearing if required, the planning board advice and recommendation and additional information demonstrates that development of the subdivision complies with this chapter, the city’s growth policy, the Montana Subdivision and Platting Act and other adopted state and local ordinances… 38.240.130 A.5.b, UDC. The Commission must consider the application to determine if it meets “the standards and policies of the city’s growth policy… any relevant evidence relating to the public health, safety, and welfare.” 38.240.130A.5.b.1&3, UDC The Commission may require a developer to design the subdivision to “reasonably minimize potentially significant adverse impacts identified through the review required” by the regulations. 38.240.130.A. 5.d, UDC. A condition of approval requiring a design that uses electricity, and not natural gas, as its power source would “reasonably minimize” the adverse impacts of the subdivision on climate change. The Bozeman Community Plan. Bozeman adopted the “growth policy” referenced in the Act and subdivision review regulations. It is titled Bozeman Community Plan 2020 (“Community Plan”). It’s stated purpose is to serve as a “long term growth policy that meets the statutory requirements. (Community Plan, p. 1) It is clear that the Community Plan contemplates the Commission’s consideration of climate change in all of its planning decisions affecting future growth. The Community Plan describes seven major themes, two of which are relevant to this memorandum. Theme 1 is titled “A RESILIENT CITY”. (Community Plan, p. 24) This theme identifies climate change as a stressor that poses a challenge to Bozeman’s resiliency goal. The Community Plan sets goal R. 2.7 which reads: “Adaptive Capacity: Include flexible and adaptable measures that include future unknowns that include changing climate…” (p. 26) The Community Plan states that it is to be considered in tandem with a number of other Bozeman plans including the Climate Plan. (Community Plan, p. 9) The Climate Plan is identified as one to be considered in connection with Theme 1, “A Resilient City” (Community Plan, p. 25) Theme 4 is titled: “A CITY INFLUENCED BY OUR NATURAL ENVIRONMENT, PARKS AND OPEN LANDS”. The Community Plan recognizes that responding to climate change is a major challenge. (Community Plan, p. 35) Goal EPO – 3 reads: “Address climate change in the City’s plans and operations.” (p. 37) EPO 3.9 indicates that the City should “Integrate climate considerations into development standards”. (p. 38) The Community Plan identifies the Climate Plan as a plan relevant to this goal. Id. Chapter 5 of the Community Plan addresses “SUBDIVISION REVIEW” in compliance with Section 76-3-601, M,C.A.’s requirement that a growth policy “review and address the various elements of the subdivision review process”. (Community Plan, p. 67) The Community Plan defines the six statutory criteria to be considered by the Commission when reviewing a proposed subdivision. (Community Plan, p. 68) Among those criteria is the proposed subdivision’s “EFFECT ON THE NATURAL ENVIRONMENT”. The Community Plan sets forth several presumptions for consideration in connection with this criterium. It presumes that “The natural environment should be conserved and development should respect significant natural features and systems.” (Community Plan, p. 69) The Bozeman Climate Plan. In December 2020, the Commission adopted the Climate Plan. The Climate Plan expresses Bozeman’s “climate vision” in the following terms: Through leadership and collaboration, the City of Bozeman will advance innovative solutions to create a more equitable and resilient low-carbon community for current and future generations. (Climate Plan, p. 6) The Climate Plan identifies a number of “guiding principles”. Important for the purpose of this memorandum is the principle that “Bozeman will be a leader in addressing climate change by: …seeking innovative, actionable solutions to mitigate climate change.” Id. The Climate Plan makes a number of findings relevant to the purpose of this memorandum. It observes that 57% of Bozeman’s greenhouse gas (“GHG”) emissions are linked to power from homes and businesses. (Climate Plan, p. 20) The Climate Plan points out that 27% of those emissions come from the use of natural gas. (Climate Plan, p. 21) It noted that natural gas use increased in Bozeman during the year 2018 and that it was the primary reason for the increase in GHG emissions. Id. The Climate Plan projects that there will be 12,700 new homes and 6.3 million square feet of new commercial space in Bozeman by 2045. (Climate Plan, p. 31) In light of these, and other findings, the Climate Plan sets three goals: 1) A 26% reduction by 2025 in GHG emissions from those in 2008, 2) 100% clean energy by year 2030 and 3) carbon neutral by year 2050. (Climate Plan, pp. 30-32) The Climate Plan then identifies six focus areas and a number of solutions to further its goals. (Climate Plan, pp. 35-79) For the purpose of this memorandum, the relevant focus area is No. 1and the relevant solution is Solutions C. Focus Area 1 is titled: “Healthy, Adaptive and Efficient Buildings”. The Climate Plan warns that “new construction threatens progress made on reducing overall building related GHG emissions. (Climate Plan, p. 35) As a result, it concludes that its solutions should focus on making existing and future buildings more efficient and on converting buildings from their use of natural gas to electricity when appropriate and feasible. (Climate Plan, p. 35) Solution C calls for the conversion of all building heating and cooking appliances to electric energy from natural gas or heating oil energy. (Climate Plan, p. 53) The Climate Plan acknowledges that it is not yet cost effective to convert existing buildings heated by gas to electric. However, the Climate Plan points out that it is cost effective to install electric heat in new buildings. Id. THE IMPOSITION OF A CONDITION REQUIRING A SUBDIVISION DESIGN USING ELECTRICITY, AND NOT NATURAL GAS, AS ITS POWER SOURCE WOULD NOT ABRIDGE THE RIGHTS OF NORTHWESTERN ENERGY OR BOZEMAN RESIDENTS OR ENCROUCH UPON THE JURISDICTION OF THE PSC. A concern has been raised that if the Commission conditioned the approval of a major subdivision upon its use of a design that required electricity, and not natural gas, as its power source, Bozeman would be encroaching upon the authority of the Montana Public Service Commission (“PSC”). The law is clear that concern is unfounded. The PSC’s authority is limited to regulating rates and service. On the other hand, Bozeman has the power over the use of its streets and alleys by utilities. The PSC was created by statute. Section 2-1-2601 M.C.A. Its duty is to supervise and regulate the operation of public utilities. Section 69-1-102 M.C.A. The PSC is: Invested with the full power of supervision, regulation, and control of such public utilities, subject to the provisions of this chapter and to the exclusion of the jurisdiction and control of such utilities by any municipality, town, or village. The Montana Supreme Court has held that the jurisdiction of the PSC is “limited to rates and the service as provided by Montana statutes. Billings v. Public Serv. Comm’n, 193 Mont. 358, 370, 631 P 2d 1295 (1981) Section 69-1-102, M.C.A. makes clear that the PSC’s power is subject to the power of municipalities. Municipalities, not the PSC, control a utility’s right to lay natural gas pipeline in city streets and alleys. The right to use city streets and alleys for natural gas pipelines is governed by Montana statute. Section 7-23-1401 M.C.A. That Section provides in pertinent part: (1) The city or town council has power to permit the use of its streets and alleys of the city or town for the purpose of laying down gas, …but no excavations must be made for such purpose without the permission of the council or its authorized officer. This Section does not require Bozeman to permit a utility to construct a pipeline to distribute natural gas to Bozeman residents. Rather, it gives Bozeman the power to deny a request made by a utility company to lay a natural gas pipeline in a street or alley. By Ordinance No. 1939 Bozeman has exercised is power to permit the use of its streets and alleys by granting a “nonexclusive” franchise to NorthWestern Energy to construct natural gas pipelines in its streets and alleys. This franchise only requires NorthWestern Energy to provide natural gas to “such parts of the City as the provision of Franchise’s natural gas services shall justify.” Section 3, Ord. 1939. The Ordinance does not require NorthWestern Energy to provide gas pipelines to every Bozeman lot. It only requires NorthWestern Energy to provide natural gas services when justified. Moreover, the Ordinance does not guaranty NorthWestern Energy that every house and commercial building will use natural gas. In fact, only 59% of Bozeman houses and commercial buildings use natural gas. (Climate Plan, p. 53) Finally, there is no stature, regulation, or ordinance that creates a right in Bozeman residents to natural gas services. Likewise, there is no statute, regulation, or ordinance that requires NorthWestern Energy to provide Bozeman residents with natural gas services. Absent such a statute, regulation, or ordinance, there exists no basis to argue that requiring subdivisions to use electricity, and not natural gas, as their energy source deprives Bozeman’s residents of any right to natural gas in new subdivisions. CONCLUSION From this review of the Act, UDC, Community Plan and Climate Plan, it is clear that the Commission should consider a proposed subdivision’s impact on climate change. The Climate Plan demonstrates that a subdivision’s contribution to climate change has an adverse impact on the public’s health and on the natural environment. The Climate Plan further demonstrates that the GHG emissions from residential and commercial buildings in new subdivisions pose a real threat to Bozeman’s goal of reducing its GHG emissions, and thereby threaten the public’s health and the natural environment. It is equally clear that the Commission has the authority to condition the approval of a subdivision upon a design that provides for its energy source to be electricity and not natural gas. Such a condition would minimize the adverse impacts of the subdivision on the public’s health and its adverse impacts upon the natural environment. By imposing such a condition, the Commission would be “thoughtfully planning community growth”. Moreover, it would be pursing an “innovative solution” to the adverse impacts of the residential and commercial buildings to be constructed in new subdivisions. Finally, by imposing such a condition, the Commission would avoid the cost associated with converting buildings from natural gas to electricity in the future. By imposing such a condition, the Commission would bot be violating any right vested in NorthWestern Energy to provide natural gas services to Bozeman residents. Likewise, it would not violate any Bozeman resident’s right to natural gas services. Finally, by imposing such a condition, the Commission would not be encroaching upon the jurisdiction of the PSC For these reasons, the Commission should consider the impact of proposed subdivisions on climate change and condition their approval upon a design that uses electricity, and not natural gas, as their energy source. Those actions provide “thoughtful planning of future growth” with an “innovative solution” in furtherance of Bozeman’s climate goals.