Court of Appeal No. E067679
IN THE COURT OF APPEAL, STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION TWO
CITY OF HESPERIA,
Plaintiff and Respondent,
v.
LAKE ARROWHEAD COMMUNITY SERVICES DISTRICT ET AL.
Defendants and Appellants.
Appeal from the Judgment of the Superior Court
State of California, County of San Bernardino
The Honorable Donald Alvarez, Judge Presiding
San Bernardino County Superior Court Case No.
CIVDS1602017
APPELLANTS' OPENING BRIEF
*Howard B. Golds (State Bar No. 112626) [email protected]
Lindsay D. Puckett (State Bar No. 233852) [email protected]
BEST BEST & KRIEGER LLP 3390 University Avenue, 5th Floor
Riverside, CA 92501 Telephone: (951) 686-1450
Attorneys for Defendants and Appellants LAKE ARROWHEAD COMMUNITY SERVICES DISTRICT, and
BOARD OF DIRECTORS OF LAKE ARROWHEAD COMMUNITY SERVICES DISTRICT
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Court of Appeal No. E067679
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS (Cal. Rules of Court, rule 8.208)
This is the initial certificate of interested entities or
persons submitted on behalf of Appellants Lake Arrowhead
Community Services District, and Board of Directors of Lake
Arrowhead Community Services District in the case number
listed above.
The undersigned certifies that there are no interested
entities or persons that must be listed in this certificate under
California Rules of Court, rule 8.208.
Date: March 20, 2018 BEST BEST & KRIEGER LLP
By: Howard B. Golds Lindsay D. Puckett Attorneys for Defendants and Appellants Lake Arrowhead Community Services District, and Board of Directors of Lake Arrowhead Community Services District
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TABLE OF CONTENTS
Page
I. INTRODUCTION 7
II. STATEMENT OF APPEALABILITY 9
III. STATEMENT OF FACTS 10
A. Purpose of District's Solar Project 10
B. State Program Authorizing Special District's Use of Raw Land for Solar 12
C. Applicability of City Zoning to Solar Project 15
D. Solar Project Approval 17
IV. STATEMENT OF THE CASE 19
V. STANDARD OF REVIEW 22
VI. LEGAL ANALYSIS 24
A. The Trial Court Failed to Apply the Plain Meaning of the Absolute Exemption From City Zoning For Local Agency Facilities Producing Electrical Energy 24
B. The Trial Court's Literal Interpretation of the Exception for "Transmission" Makes the Absolute Exemption Meaningless for Electrical Energy Producing Facilities 35
C. The Solar Project is Subject to the Qualified Exemption from City Zoning Because There is No Feasible Alternative 43
VII. CONCLUSION 51
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TABLE OF AUTHORITIES
State Cases
Cadiz v. Agricultural Labor Relations Board (1979)
Page(s)
92 Cal.App.3d 365 27
California Federal Savings & Loan Association v. City of Los Angeles (1995) 11 Ca1.4th 342 27, 34
Castaneda v. Holcomb (1981) 114 Cal.App.3d 939 28, 38
City of Lafayette v. East Bay Municipal Utility District (1993) 16 Cal.App.4th 1005 passim
Harbor Fumigation, Inc. v. County of San Diego Air Pollution Control District (1996) 43 Cal.App.4th 854 28, 38
Lawler v. City of Redding (1992) 7 Cal.App.4th 778 25
Mount Sutro Defense Committee v. Regents of the University of California (1978) 77 Ca1.App.3d 20 38
Rudd v. California Casualty General Insurance Company (1990) 219 Cal.App.3d 948 27
Save Tara v. City of West Hollywood (2008) 45 Ca1.4th 116 38
Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490 23, 51
Torres v. Parkhouse Tire Service, Inc. (2001) 26 Ca1.4th 995 27, 28, 38
Young v. Gannon (2002) 97 Cal.App.4th 209 23, 51
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TABLE OF AUTHORITIES (Continued)
Page(s)
State Statutes
Code Civ. Proc., § 904.1 9
Code Civ. Proc., § 1094.5 23
Code Civ. Proc., § 1858 8, 24, 26, 27, 33
Evid. Code, § 451 29
Gov. Code, § 4217.10 14
Gov. Code, § 4217.11 14
Gov. Code, § 53090 26
Gov. Code, §§ 53090-53095 25
Gov. Code, § 53091 passim
Gov. Code, § 53096 passim
Gov. Code, §§ 61000-61850 10
Gov. Code, § 61001 42
Gov. Code, § 61060 10, 15
Gov. Code, § 61100 10
Pub. Resources Code, § 25008 14
Pub. Utilities Code, § 2830 passim
I/
/I
I/
/I
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TABLE OF AUTHORITIES (Continued)
Page(s) Rules
California Rules of Court, Rule 8.104 9
Other Authorities
40 Ops.Cal.Atty.Gen. 243 (1962) 25
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I. INTRODUCTION
This appeal involves a solar energy project ("Solar Project")
properly approved by Appellant Lake Arrowhead Community
Services District ("District") that was blocked by the trial court
herein despite there being no legal justification. As shown below
and pursuant to State law, electrical generation facilities such as
the Solar Project have both an absolute and a qualified
exemption from local agency zoning requirements. Nonetheless,
because the Solar Project was to have been located on six acres of
a 350-acre property the District owns on the eastern edge of
Appellee City of Hesperia ("City"), the City sued the District
claiming that the Solar Project was prohibited because of the
requirements of the City's zoning ordinance. When the trial court
erroneously agreed, this appeal ensued.
The trial court's decision should be reversed because it
disregards the plain language of two directly applicable statutory
exemptions. First, there is an "Absolute Exemption" from local
zoning for local agency facilities producing electrical energy in
Government Code section 53091, subdivision (e). Second, there is
a "Qualified Exemption" for the production of electrical energy
when there is no feasible alternative to the proposal set forth in
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Government Code section 53096. The Absolute Exemption and
the Qualified Exemption (collectively, "Exemptions") strike a
balance between local control of land use decisions and the need
to place facilities directly related to the generation of electricity
at the discretion of the local agency.
Under Code of Civil Procedure section 1858 and well-
established rules of statutory construction, courts are required to
first look to the plain language of a statute. Only when that
language is ambiguous or a literal interpretation would result in
absurd consequences, may courts look to extrinsic evidence such
as legislative history or public policy. The City did not refute the
plain meaning of the language in the Exemptions or that the
Solar Project would directly and immediately produce energy
under the State's Local Government Renewable Energy Self-
Generation Bill Credit Transfer ("RES-BCT") Program in Public
Utilities Code section 2830.1 Nonetheless, the trial court
substituted its own judgment for that of the Legislature by re-
writing the Exemptions to require the Solar Project to also be
1 The program allows special districts to use raw land for generation facilities and then apply a credit for the energy created by those facilities to other locations where the district uses the energy.
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"indispensable" to the water and wastewater treatment services
provided by the District under the Community Services District
Law. There is no legal authority requiring the District to sell
electricity to its customers in order to rely on the Exemptions. As
long as the local agency facility directly produces electrical
energy, the Exemptions apply. The trial court's decision should
be reversed.
II. STATEMENT OF APPEALABILITY
This appeal is brought pursuant to Code of Civil Procedure
section 904.1 from a Judgment dated December 9, 2016 (after a
ruling from the trial court dated October 6, 2016) granting the
City's Petition for Writ of Mandate and Complaint for
Declaratory and Injunctive Relief ("Petition"). (1 AA 13-672.) On
January 26, 2017, the District timely filed a Notice of Appeal
under California Rules of Court, rule 8.104. (4 AA 792-803.)
2 Citations to Appellants' Appendix are in the following format: [Volume] AA [Page] : [Line].
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III. STATEMENT OF FACTS
A. Purpose of District's Solar Project
The District was established in 1978 under the State of
California's Community Services District Law, Government Code
sections 61000-61850 ("CSDL") and serves approximately 8,000
water customers and 10,500 wastewater customers within the
Lake Arrowhead community. (Administrative Record ("AR") 18
AR 492, 77 AR 23173.) The District is authorized to provide
water and wastewater treatment services within its boundaries
under the CSDL and the Local Agency Formation Commission
("LAFCO") for San Bernardino County Policy & Procedure
Manual. (Gov. Code, § 61100, subds. (a), (b); 77 AR 2317, 78 AR
2540.) The District also has all rights and powers necessary to
carry out the purposes and intent of the CSDL, including
entering into contracts and taking actions incidental to the
powers expressed or implied by the statute. (Gov. Code, § 61060,
subds. (h), (n).) LAFCO's Service Review for the Lake Arrowhead
Community states the District "was envisioned to provide more
3 Citations to the Administrative Record are in the following format: [tab number] AR [bates page number].
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than water and sewer service. It was intended to become the
focal government organization for the community." (77 AR 2347.)
Because of the mountainous area the District occupies, as
well as the occasional need to pay for water to be transported
through pipes up the mountain, the District spends significant
funds on electricity costs to provide power for pumping such
water. The Solar Project would reduce these costs incurred by
the District's ratepayers.
The District spent over 18 months considering alternative
locations, designs, and financial options for a solar project to
offset its significant energy costs, as well as conducting extensive
environmental review. (6 AR 132-133, 72 AR 2260-2262.) In
June 2014, the District appointed an Ad Hoc Committee,
including two Board of Directors, to review proposals submitted
by three solar power providers to design, construct and install a
solar system at its Hesperia Farms Property located at 6727
Arrowhead Lake Road. (6 AR 132-133.) The District has been
using the Hesperia Farms Property for decades to discharge and
percolate treated effluent from its wastewater treatment plants
in Lake Arrowhead back into the Mojave River groundwater
basin. (69 AR 2014-2015, 77 AR 2331.)
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B. State Program Authorizing Special District's
Use of Raw Land for Solar
The District's use of the Hesperia Farms Property for the
Solar Project is authorized under the State's RES-BCT Program,
which allows "local governments," including special districts, to
use raw land for generation facilities and then apply a bill credit
for the energy created by those facilities to other locations
operated by the local government agency within its geographical
boundaries. (Pub. Utilities Code, § 2830.) The RES-BCT
Program is intended to address the fact there is often not enough
usable land where a local government uses electricity for an
economically viable solar system. (Pub. Utilities Code, § 2830; 11
AR 215-216 [solar provider presentation on benefits of tariff].)
The LAFCO recognizes that development in the San Bernardino
Mountains, where the District's water and wastewater treatment
facilities are located, is constrained by rugged terrain and other
barriers. (77 AR 2318.)
In August 2015, the District entered into a standard Rule
21 Generator Interconnection Agreement for Exporting
Generating Facilities ("Interconnection Agreement") with
Southern California Edison ("SCE") to interconnect its solar
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facilities to the electrical grid distribution system under the RES-
BCT Program. (45 AR 1632.) The Solar Project would generate
renewable energy for the District's own use and benefit at its
water and wastewater treatment related facilities located in Lake
Arrowhead pursuant to the RES-BCT Program. (69 AR 1952.)
Thus, the Solar Project site would continue to benefit the
District's water and wastewater treatment operations by
offsetting electricity demands and lowering costs for ratepayers.
(69 AR 2015.) There is a statewide program limit of 250
megawatts (MW), and utilities are only required to offer service
under the tariff until they reach their proportionate share of the
program (SCE limit is 123.8 MW). (3 AR 80.) As the Solar
Project would generate no more than 0.96 MW, it fell within
these parameters. (71 AR 2245.)
The Ad Hoc Committee held four meetings before awarding
an Energy Services Agreement and related contracts to real party
SunPower Corporation, Systems ("SunPower") in October 2015,
conditioned upon the completion of environmental review. (10
AR 202-203, 16 AR 414-416, 20 AR 1238-1241, 36 AR 1509-1510,
53 AR 1819.) The District approved the Energy Services
Agreement for SunPower to design, construct, and install the
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Solar Project on terms that serve the District's best interests
under Government Code section 4217.10 et seq.4 (10 AR 202-203.)
Section 4217.10 extends the policy in Public Resources Code
section 25008 for state facilities to local government facilities "to
promote all feasible means of energy and water conservation and
all feasible uses of alternative energy and water supply sources,"
in recognition of increasing energy costs from traditional
sources.5 (Pub. Resources Code, § 25008.) The Solar Project would
result in a net return to the District of approximately $4,481,000
over 25 years with a positive cash flow in year one. (52 AR 1736,
55 AR 1837-1838.) The Project would also reduce fossil fuel
consumption and improve efficiency under Public Resources Code
section 25008 by resulting in a net greenhouse gas benefit of 720
metric tons of carbon dioxide equivalent per year or more given
' "Energy service contract" means a contract entered into by a public agency with any person, pursuant to which the person will provide electrical or thermal energy or conservation services to a public agency from an energy conservation facility." (Gov. Code, § 4217.11, subd. (f).) "Energy conservation facility" means alternate energy equipment, cogeneration equipment, or conservation measures located in public buildings or on land owned by public agencies." (Gov. Code, § 4217.11, subd. (e).) 5 The criteria that should be analyzed for proposed actions includes lifecycle cost evaluation, benefit to taxpayers, reduced fossil fuel, and improved efficiency. (Pub. Resources Code, § 25008.)
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that the displaced generation reduction would likely occur at
fossil-fueled plants with higher emission rates. (69 AR 2006.)
The District would own and derive all benefits from the Solar
Project. (3 AR 66-67.)6
The District and SunPower intended to complete the Solar
Project by June 1, 2016, but the Solar Project has been
significantly delayed by the City's lawsuit. (55 AR 1834.)
Completion by summer 2016, when the tariff and corresponding
bill credits under the RES-BCT program are the highest, would
have offered the most economic value. (3 AR 82.)
C. Applicability of City Zoning to Solar Project
In May 2015, the City submitted comments on the original
draft Mitigated Negative Declaration ("MND"), prepared by the
District as the lead agency for the Solar Project under the
California Environmental Quality Act ("CEQA"), stating the
6 The CSDL's basic corporate powers authorize the District to enter into the Energy Services Agreement with SunPower to design and construct the Solar Project and the Interconnection Agreement with SCE to connect the Project to the electrical grid distribution. (Gov. Code, § 61060, subd. (h).) These actions are also incidental to the District's water and wastewater treatment services powers. (Gov. Code, § 61060, subd. (n).)
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Solar Project requires a General Plan and zoning amendment
from the City and relocation to comply with its zoning ordinance.
(31 AR 1469-1470.) The City's Ordinance No. 2012-07 regulates
the location of solar systems. (79 AR 2808-2810.) Development
Code Section 16.16.063(B) of the City's Municipal Code provides
that solar systems exceeding 15% of the lot area, such as the
Solar Project, are considered a "solar farm." (79 AR 2810.) Solar
farms are only allowed on nonresidential and nonagricultural
designated properties with approval of a conditional use permit
and are not permitted within 660 feet of any agricultural or
residentially designated property. (79 AR 2808-2810.) The Solar
Project site is designated Rural Residential 0-0.4 units per acre
under the General Plan and zoned Rural Residential. (69 AR
1976.)
In the interest of cooperation between local agencies, the
District held discussions with the City on the viability of a
General Plan amendment and zone change. (69 AR 1974.) But
given the City's push to relocate the Solar Project 660 feet from
the property to the south, despite having no significant land use
impacts, the District exercised its authority under State law in
determining that the Solar Project fell under the Absolute
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Exemption from City zoning for facilities producing electrical
energy (Government Code section 53091). (69 AR 1974, 2014-
2015.) In the event the Solar Project was viewed as involving
transmission, which is excluded from the Absolute Exemption, in
the abundance of caution the District also determined the Solar
Project fell under the Qualified Exemption under Government
Code 53096 because there was no feasible alternative to the Solar
Project. (69 AR 1952, 2014-2015.)
D. Solar Project Approval
The District revised the MND in response to comments
from the City and others on the original draft MND. (31 AR
1469-1470, 69 AR 1974, 1980 [e.g., mitigation measure requiring
compliance with City lighting requirements].) Both the public
and the City received notice of the District's intent to find the
Solar Project exempt from City zoning, adopt the MND, and
approve the Project. The District recirculated a revised MND for
public review for 30 days, including filing notice with the San
Bernardino County Clerk and placing notice in a newspaper of
general circulation. (71 AR 2247.) The District also hand
delivered notice of the public hearing to the one property owner
within 300 feet of the Solar Project site (who signed the notice)
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and posted notice in a conspicuous place at the Project site under
Government Code section 53096. (61 AR 1931, 64 AR 1934-1939,
71 AR 2246.) The property owner did not oppose the Solar
Project. (11 AR 324-325, 73 AR 2270-2273.)
The City received direct notice on November 9, 2015, and
on November 20 the District Engineer e-mailed the City's
Principal Planner requesting a conference call on the Solar
Project changes. (60 AR 1929, 62 AR 1932.) The day before the
hearing on the Solar Project, the City responded that the Solar
Project is subject to a General Plan amendment, conditional use
permit, and 660-foot relocation despite offering no evidence the
Solar Project would have a significant land use impact. (67 AR
1944-1945.)
On December 15, 2015 at a special meeting of the Board of
Directors, the District adopted Resolution No. 2015-14 finding
the Solar Project to be electrical generation facilities exempt from
the City's zoning ordinance under the Absolute Exemption or, in
the alternative, the Qualified Exemption because there is no
feasible alternative to the Solar Project location, and adopted the
revised MND. (69 AR 1949-1954, 71 AR 2245-2251.) The
purpose of the special meeting was to complete the CEQA process
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and approve the Solar Project by the end of 2015 to meet the
Project schedule and deadlines required to finance the Project
using Clean Renewable Energy Bonds (CREBS). (55 AR 1832-
1836, 68 AR 1946-1948.) The only Solar Project opponent at the
hearing was a Hesperia resident who criticized the District for
locating the Project in a rural "community which has a record
opposed to such development . . . ." (73 AR 2270-2271.)
The District has incurred approximately $800,000 in costs
related to RES-BCT Program fees, SCE's System Impact Study,
interconnection facilities, design, financial advisors, and
environmental review to pursue the Solar Project. (41 AR 1546-
1547, 48 AR 1699-1700, 53 AR 1819, 57 AR 1876-1877.)
W. STATEMENT OF THE CASE
In February 2016, the City filed the Petition challenging
the District's December 2015 approval of the Solar Project. (1 AA
13-67.) The Petition alleged three causes of action against the
District and named SunPower as a real party in interest.? The
' The Petition also names SCE and Stifel, Nicolaus & Company, Inc. as real parties, but the City dismissed them in May 2016 conditioned upon their disclaimers of interest. (1 AA 119-128; 3 AA 715.)
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first cause of action alleged the District lacks authority to have a
solar project. (1 AA 20-21.) The second cause of action alleged
the District cannot rely on the Exemptions for the Solar Project.
(1 AA 21-22.) And the third cause of action was for declaratory
relief. (1 AA 22-23.)
The Petition sought relief in the form of a "writ of mandate
directing that [the District] not proceed with the Solar Farm
Project, or alternatively, that Respondents must comply with the
City's zoning ordinances in connection with the siting,
development and construction of the Solar Farm." (1 AA 23:19-
22.) The first sentence of the City's opening brief made clear that
its goal is to prohibit the District "from locating a solar farm
within the City's limits." (1 AA 153:3.)
After briefing, the trial court heard the matter on August
26, 2016 and issued its Ruling on Petition for Writ of Mandate on
October 6, 2016 ("Ruling"). (3 AA 714-741.) The Ruling denied
the Petition on the first cause of action because the District is
authorized to carry out the Solar Project under the State's RES-
BCT Program in Public Resources Code section 2830. (3 AA 718-
720.) The Ruling granted the Petition on the second cause of
action, finding the Solar Project is subject to the City's zoning
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ordinance. (3 AA 720-738.)8 The Ruling also granted the City's
request to take judicial notice of portions of its Municipal Code
and the District's request to take judicial notice of a California
Public Utilities Commission ("CPUC") document on electric
transmission siting and two documents related to the legislative
history for the Absolute Exemption and the CSDL. (3 AA 717-
718.)
Judgment was entered on December 9, 2016, followed by a
Judgment Nunc Pro Tune on February 9, 2017 to correct a
missing attachment with the Ruling. (3 AA 749-755; 4 AA 827-
859; 4 AA 788.) The City served a Notice of Entry of Judgment
on January 6, 2017. (3 AA 762-772.) In accordance with the
Judgment, a Writ of Mandate ordering the District to comply
with the City's zoning ordinance prior to implementing the Solar
Project, or alternatively, not to proceed with the Solar Project
was entered on December 21, 2016. The District appealed on
January 26, 2017. (4 AA 792-803.) The District filed a Return to
the Writ of Mandate on March 7, 2017 notifying the trial court of
its appeal. (4 AA 792-803.) The City did not appeal.
8 The City dismissed the third cause of action for declaratory relief on November 10, 2016. (3 AA 750; 3 AA 744-745.)
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This appeal was stayed from April 14, 2017 to February 2,
2018 to allow for settlement discussions between the parties,
which were unsuccessful. (Court of Appeal Stay Orders filed in
this appeal on April 14, 2017, May 23, 2017, July 12, 2017,
September 5, 2017, October 18, 2017, December 27, 2017 and
February 2, 2018.)
V. STANDARD OF REVIEW
The Court's interpretation of whether the Solar Project is
exempt from City zoning requirements under (1) the Absolute
Exemption in Government Code section 53091, subdivision (e) for
local agency facilities for the production or generation of electrical
energy and (2) the Qualified Exemption in Government Code
section 53096, subdivision (a) for local agency facilities related to
the storage or transmission of electrical energy are questions of
law determined independently from the trial court's decision.
(City of Lafayette v. East Bay Municipal Utility District (1993) 16
Cal.App.4th 1005, 1013 (Lafayette), citations omitted.)
The District's determination there is no feasible alternative
to the Solar Project under Government section 53096, subdivision
(a) must be upheld if it is supported by substantial evidence.
24148.00049\29630166.3 -22-
(Gov. Code, § 53096, subd. (b); Code Civ. Proc. 1094.5, subds. (b),
(c).) "Substantial evidence" has been defined as evidence of
"ponderable legal significance ... reasonable in nature, credible,
and of solid value[, and]' . . . 'relevant evidence that a reasonable
mind might accept as adequate to support a conclusion.' " (Young
v. Gannon (2002) 97 Cal.App.4th 209, 225 (Young), citations
omitted.)
Under the substantial evidence standard, "[a] reviewing
court may neither substitute its views for those of the agency
whose determination is being reviewed, nor reweigh conflicting
evidence presented to that body." (Sierra Club v. County of Napa
(2004) 121 Cal.App.4th 1490, 1497 (Sierra Club), citations
omitted.) Further, "the decisions of the agency are given
substantial deference and are presumed correct." (Ibid.) It is the
City's burden to prove the District's findings are not supported by
substantial evidence, and any reasonable doubts are revolved in
favor of the District's findings. (Ibid; Young, supra, 97
Cal.App.4th at p. 225.)
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VI. LEGAL ANALYSIS
A. The Trial Court Failed to Apply the Plain
Meaning of the Absolute Exemption From City
Zoning For Local Agency Facilities Producing
Electrical Energy
The Solar Project is exempt from City zoning under the
plain meaning of the Absolute Exemption because it would
directly produce electrical energy. The trial court violated Code
of Civil Procedure section 1858 by, in effect, inserting language
into the Absolute Exemption to require the Solar Project to also
be indispensable to the water and wastewater services provided
by the District under the CSDL. The nature of the community
services provided by the District are irrelevant to the
applicability of the Absolute Exemption. The purpose of the
statute is to allow for the District to select the optimal site for the
energy producing Solar Project without City interference.
Government Code section 53091, subdivision (a) generally
requires that local agencies must comply with building and
zoning ordinances of a city or county in which the territory of the
agency is situated. But subdivision (e) of section 53091 contains
an Absolute Exemption from city zoning for facilities producing
24148.00049\29630166.3 -24-
energy (and water), as follows:
(e) Zoning ordinances of a county or city shall not apply to the location or construction of facilities for the production, generation, storage, treatment, or transmission of water, or for the production or generation of electrical energy, facilities that are subject to Section 12808.5 of the Public Utilities Code, or electrical substations in an electrical transmission system that receives electricity at less than 100,000 volts. Zoning ordinances of a county or city shall apply to the location or construction of facilities for the storage or transmission of electrical energy by a local agency, if the zoning ordinances make provision for those facilities.
(Gov. Code, § 53091, subd. (e), underscoring added; Lafayette,
supra, 16 Cal.App.4th at pp. 1013-14.) Thus, when it comes to
local regulation, the "obvious intent" of the Legislature was to
treat facilities that produce electricity or water differently. (Id.
at p. 1014.)9
9 The Attorney General concluded the Legislature intended Government Code sections 53090 through 53095 to cover the whole field of intergovernmental regulation with respect to zoning ordinances. (Lawler v. City of Redding (1992) 7 Cal.App.4th 778, 783 [citing 40 Ops.Cal.Atty.Gen. 243, 245-246 (1962)1.)
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There was no dispute in the trial court that the District is a
"local agency"1° and the Solar Project involves "facilities" and the
"production or generation of electrical energy" within the
meaning of the Absolute Exemption. (69 AR 1951; 1 AA 164;
3 AA 720, 726.) Instead, the City made a policy argument that
because the District can provide water and wastewater services
to its ratepayers without the Solar Project, the Absolute
Exemption should not apply. (2 AA 463:12-17.) Assuming, or
perhaps desiring this to be the case, the trial court's Ruling starts
with the premise that City zoning applies to the Solar Project and
then works backwards to support that result. The trial court
failed to start with the plain language of the statute, which
clearly states local agency facilities producing electrical energy
are exempt from City zoning.
"The guiding principle of interpretation [for a statute] was
laid down by the Legislature in Code of Civil Procedure section
1858 [which reads]:
10 "Local agency" is defined in Government Code section 53090, subdivision (a) as "an agency of the state for the local performance of governmental or proprietary function within limited boundaries" and does not include the state, a city, or a county.
24148.00049\29630166.3 -26-
In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.
(Cadiz v. Agricultural Labor Relations Board (1979) 92
Cal.App.3d 365, 372.) 'Courts do not sit as super-legislatures to
determine the wisdom, desirability or propriety of statutes
enacted by the Legislature.' (Ibid.)
Case law also reflects the rules of interpretation set forth in
Code of Civil Procedure section 1858. "In interpreting a statute
where the language is clear, courts must follow its plain
meaning." (Torres v. Parkhouse Tire Service, Inc. (2001) 26
Ca1.4th 995, 1003 (Torres), citations omitted; Rudd v. California
Casualty General Insurance Company (1990) 219 Cal.App.3d 948,
952; California Federal Savings & Loan Association v. City of Los
Angeles (1995) 11 Ca1.4th 342, 349 (California Federal).) Only
where "the statutory language permits more than one reasonable
interpretation, courts may consider various extrinsic aids,
including the purpose of the statute, the evils to be remedied, the
legislative history, public policy, and the statutory scheme
24148.00049\29630166.3 -27-
encompassing the statute." (Torres, supra, at p. 1003; Lafayette,
supra, 16 Cal.App.4th at p. 1012.) In other words, "[i]f the
language of the provision is free of ambiguity, it must be given its
plain meaning; rules of statutory construction are applied only
where there is ambiguity or conflict in the provisions of the
charter or statute, or a literal interpretation would lead to absurd
consequences." (Castaneda v. Holcomb (1981) 114 Cal.App.3d
939, 942 (Castaneda), citations omitted; Harbor Fumigation, Inc.
v. County of San Diego Air Pollution Control District (1996) 43
Cal.App.4th 854, 860 (Harbor Fumigation).
There is nothing ambiguous nor uncertain about the
wording of the Absolute Exemption: "Zoning ordinances of a
county or city shall not apply to the location or construction of
facilities . . . for the production or generation of electrical energy.
. . ." (Gov. Code, § 53091, subd. (e).) For that reason, there was
no dispute in the trial court regarding the "significance to every
word, phrase, sentence and part of an act in furtherance of the
legislative purpose." (Lafayette, supra, 16 Cal.App.4th at
24148.00049\29630166.3 -28-
p. 1012.) The Absolute Exemption must be given its plain
meaning."
To apply the plain meaning of the Absolute Exemption to
the Solar Project, Lafayette, supra, 16 Cal.App.4th 1005, is
instructive. There a water district claimed that it was exempt
from city zoning regarding the construction of a service center for
the storage of materials and equipment necessary for
maintenance and repair of aqueducts, pipelines, fitter plants, and
reservoirs and an appurtenant warehouse and vehicle
maintenance bay. Interpreting the Absolute Exemption with
respect to water, the court "first examine [d] the language of the
statutes, giving significance to every word, phrase, sentence and
part of an act in furtherance of the legislative purpose." (Id. at p.
1012.) The plain language of the Absolute Exemption with
respect to water states "[z] oning ordinances of a county or city
shall not apply to the location or construction of facilities for the
production, generation, storage, treatment, or transmission of
ii Evidence Code section 451, subdivision (e) requires the court to judicially notice "Mlle true signification of all English words and phrases and of all legal expressions."
24148.00049\29630166.3 -29-
water . . . ." (Id. at pp. 1012-1014.) In holding the Absolute
Exemption did not apply, the court found the service center:
[S]erves as a support facility; it does not actually perform the function of generating, transmitting, or storing water. We think the absolute exemption of section 53091 was intended to be limited to facilities directly and immediately used to produce, generate, store, or transmit water. Only those indispensable facilities must be geographically located at the unfettered discretion of a water district - - that is, without the burden of city and county zoning regulations - - in order to assure the imperative of efficient and economical delivery of water to customers. In section 53091 we perceive an intention to distinguish between the essential components of a water storage and transmission system, and those support facilities proposed in the [service center] project, with only the former granted absolute immunity from local control. Whatever the wisdom of such a dichotomy, we conclude that the District cannot claim an exemption under section 53091 from the City's zoning regulations.
(Lafayette, supra, 16 Cal.App.4th at p. 1014, underscoring added.)
The court in Lafayette did not specifically address the
applicability of the Absolute Exemption to facilities that produce
or generate electrical energy, such as the Solar Project. Applying
the rules of statutory interpretation discussed above and the
Lafayette holding, however, the Solar Project falls under the
Absolute Exemption. Unlike the service center, there is no
dispute that the Solar Project would be "directly and
24148.00049\29630166.3 -30-
immediately" used to produce and generate electricity to
significantly reduce energy costs in providing water and
wastewater treatment services consistent with the RES-BCT
Program. (Lafayette, supra, 16 Cal.App.4th at p. 1014.) The
intention of the Legislature to exclude energy producing facilities
of local agencies from City zoning is clear from the plain language
of the Absolute Exemption.
This interpretation is also consistent with the legislative
intent of the Absolute Exemption explained in Lafayette because
the geographic location of the Solar Project is significant to
assure the production of energy in an efficient and cost effective
manner. (Lafayette, supra, 16 Cal.App.4th at p. 1014.) In fact,
the RES-BCT Program recognizes there is often not enough
usable land where an agency uses electricity for an economically
viable solar system. (Pub. Utilities Code, § 2830; 11 AR 215-216
[solar provider presentation on benefits of tariff].)12 The purpose
12 All three solar providers that submitted proposals to the District's Ad Hoc Committee agreed the Hesperia Farms Property is ideal for the RES-BCT Program, as opposed to the more developed and mountainous area of Lake Arrowhead where other District-owned property and facilities are more expensive to build, or areas with more extreme temperatures. (11 AR 215-216 [HelioPower], 246-247 [Martifer]; 283 [SunPower].) A consultant the District interviewed to assist in the evaluation of the
24148.00049\29630166.3 -31-
of the Absolute Exemption is to allow local agencies "unfettered
discretion" in selecting optimal locations for facilities that
"directly and immediately" produce electrical energy (or water)
without city or county interference. (Lafayette, supra, 16
Cal.App.4th at p. 1014.)
In its resolve to uphold the City's authority, the trial court
twisted the interpretation of the Absolute Exemption in Lafayette
to also require the Solar Project to be "indispensable" to the
District's authorized water and sewer operations under the
CSDL. (3 AA 726:1-10.) But the word "indispensable" is only
used in Lafayette in reference to "facilities directly and
immediately used to produce . . . water," not with respect to the
nature of the services performed by the local agency. (Lafayette,
supra, 16 Cal.App.4th at p. 1014.) According to Lafayette, the
Absolute Exemption only requires that the facilities at issue
directly and immediately produce or generate electrical energy
(or water), as opposed to being ancillary to those functions (like
an administrative building). Neither the plain language of the
Absolute Exemption nor Lafayette require the District to also sell
proposals (TerraVerde Renewable Partners) also surmised the District's facilities in Lake Arrowhead are not suitable for a solar project. (17 AR 431-432.)
24148.00049\29630166.3 -32-
electricity to ratepayers in order to rely on the Absolute
Exemption. It was not for the trial court to question the
"wisdom" of such legislative intent by reading words into the
statute to support an alternative meaning. The trial court's
actions violated Code of Civil Procedure section 1858 and the
principles of statutory interpretation reinstated through case
law. Because the solar panels would be indispensable to
producing solar energy, the Solar Project qualifies for the
Absolute Exemption under Lafayette.
Government Code section 53091 has been amended five
times since its original enactment in 1959. (Gov. Code, § 53091
(added by Stats.1959, c. 2110, p. 4907, § 1. Amended by
Stats.1977, c. 435, p. 1467, § 1; Stats.1984, c. 976, § 1; Stats.1997,
c. 580 (S.B.320), § 2; Stats.2001, c. 396 (A.B.1367), § 1;
Stats.2002, c. 267 (S.B.1711), § 1.).) And yet the Legislature did
not change the plain language of the Absolute Exemption stating
that local agency facilities that produce or generate electrical
energy are exempt from city zoning. The focus of the language
remains whether the facility ultimately produces electrical
energy. While exceptions to the general rule of a statute are to be
strictly constructed, as recognized by the California Supreme
24148.00049\29630166.3 -33-
Court, courts "must assume that the Legislature knew how to
create an exception if it wished to do so . . . ." (California Federal,
supra, 11 Ca1.4th at p. 349; Lafayette, supra, 16 Cal.App.4th at p.
1017.) In fact, as further discussed below in Section VI.B., in
1977 the Legislature added an exception to the Absolute
Exemption for energy producing facilities that involve storage or
transmission if a zoning ordinance makes provision for those
facilities. (Gov. Code, § 53091, subd. (e).) No such exception
requires facilities to also be indispensable to the services
provided by the local agency to qualify for the Absolute
Exemption. It is for the Legislature, not the courts, to create
such an exception.
Accordingly, the District is not required to comply with the
City's zoning ordinance by applying for a conditional use permit
or a General Plan amendment for the Solar Project under the
Absolute Exemption.
24148.00049\29630166.3 -34-
B. The Trial Court's Literal Interpretation of the
Exception for "Transmission" Makes the
Absolute Exemption Meaningless for Electrical
Energy Producing Facilities
There is an exception to the Absolute Exemption for
facilities producing electrical energy. Specifically, "[z] oning
ordinances of a county or city shall apply to the location or
construction of facilities for the storage or transmission of
electrical energy by a local agency, if the zoning ordinances make
provision for those facilities." (Gov. Code, § 53091, subd. (e).)
There is no dispute that the City's zoning ordinance makes
provision for the Solar Project. (3 AA 722:20-21.) There is also
no dispute the Solar Project would not include a "storage"
component because the electricity generated by the Solar Project
would flow directly through the meter and would not be able to be
stored for later use. (69 AR 1952-1953.) The issue on appeal is
whether the Solar Project involves the transmission of electrical
energy within the exception to the Absolute Exemption. The trial
court interpreted the word "transmission" so literally that the
Ruling disqualified any local agency facility producing electrical
energy from the Absolute Exemption in violation of the rules of
24148.00049\29630166.3 -35-
statutory construction.
The Solar Project would generate electricity for the benefit
of the District's water and wastewater treatment related facilities
by connecting to the utility at the generating meter account in
order to minimize overall energy demand and greenhouse gas
emissions. (69 AR 1952.) The Solar Project would not include a
"transmission" component as the energy generated by the Solar
Project would flow through the meter at the interconnection
facilities to the existing SCE distribution system under the
Interconnection Agreement and the RES-BCT Program approved
by the CPUC. (69 AR 1953.) This energy would be measured at
the meter and would result in a credit with SCE that would be
directly applied as an offset to the energy consumed at
designated District facilities. (69 AR 1953.)
In the trial court, the City's reply brief did not refute
evidence submitted by the District showing the Solar Project does
not involve "transmission" within the context of the exception to
the Absolute Exemption, conceding that point. (1 AA 164; 1 AA
193-195; 2 AA 459-472.) Nevertheless, in its resolve to uphold
the City's zoning authority over the Solar Project, the trial court
looked to the dictionary to determine the plain meaning of the
24148.00049\29630166.3 -36-
words "transmission" and "export" as it is used under Public
Utilities Code section 2830, subdivision (b) with respect to the
export of electricity to SCE's grid. (3 AA 727-728.) The court
deemed the words synonymous, concluding the Solar Project
"involves the transmission of electrical energy by a local agency,
because its purpose is to transmit electricity to Edison under its
RES-BCT Program." (3 AA 727:6-8.)
The trial court's overly broad interpretation of the
exception to the Absolute Exemption would prohibit any
electrical energy facility from qualifying for the Absolute
Exemption, as there must always be some mechanism to convey
the electrical energy produced or generated for use. It is
impossible to make use of energy without some limited
conveyance of the electrical energy from the equipment which
generates it to the point of use, even where the use is on the same
property. In this case, the point of use is the SCE meter on the
boundary of the property as this is where SCE takes delivery of
the energy pursuant to the RES-BCT program. Any subsequent
transmission of the energy is by SCE, not the District. The trial
court's literal interpretation of the word "transmission" would
therefore lead to "absurd consequences," rendering the Absolute
24148.00049\29630166.3 -37-
Exemption for electrical energy producing facilities meaningless
in violation of the rules of statutory construction. (Castaneda,
supra, 114 Cal.App.3d at p. 942; Harbor Fumigation, supra, 43
Cal.App.4th at p. 860.) "A statute should be interpreted so as to
produce a result that is reasonable. . . . If two constructions are
possible that which leads to the more reasonable result should be
adopted. . . . The courts must look to the context of the law, and
where uncertainty exists, consideration should be given to the
consequences that will flow from a particular interpretation."
(Mount Sutro Defense Committee v. Regents of the University of
California (1978) 77 Cal.App.3d 20, 34-35, citations omitted,
disapproved on other grounds in Save Tara v. City of West
Hollywood (2008) 45 Cal.4th 116, 131, n. 10.)
Thus, it is necessary to look beyond the plain meaning of
the statutory language in the exception to the Absolute
Exemption and apply the principles of statutory construction to
determine the legislative intent. (Torres, supra, 26 Ca1.4th at p.
1003; Lafayette, supra, 16 Cal.App.4th at p. 1012.) This includes
consideration of "extrinsic aids" such as "the purpose of the
statute, the evils to be remedied, the legislative history, public
24148.00049\29630166.3 -38-
policy, and the statutory scheme encompassing the statute."
(Ibid.)
The Interconnection Agreement states that it "shall be used
for an interconnection [under SCE's RES-BCT Program] for the
export of electrical energy to the grid." (45 AR 1632.)
"Interconnection" is defined as "the facilities necessary to
physically connect the energy source of and the point of use by a
[eligible renewable generating facility] with the existing
transmission facilities of a public utility, and shall include any
necessary transformation, compression or other facilities
necessary to make such interconnection effective." (Pub. Utilities
Code, § 2803, underscore added.) The RES-BCT Program defines
"interconnection" to have the same meaning as that in Public
Utilities Code section 2803, except that it applies to the
interconnection of an eligible renewable generating facility rather
than the energy source of a private energy producer. (Pub.
Utilities Code, § 2830, subd. (b)(6).)
The Solar Project only requires the installation of
approximately 250 feet of underground cable for interconnection
to SCE's facilities. (30 AR 1461-1462.) The interconnection
facilities, which would be owned by SCE, would connect to the
24148.00049\29630166.3 -39-
existing 12 kilovolt (kV) distribution line owned and operated by
SCE. (30 AR 1457, 1460.) The 2009 overview of the CPUC's
process for the siting of electric transmission lines provides that
"[p]rojects below 50kV are considered to be distribution projects,
rather than transmission projects, and in general do not require
Commission approval." (1 AA 213.) Therefore, even if the SCE
distribution line could somehow be attributed to the Solar
Project, this line does not involve transmission as defined by the
CPUC.
The trial court dismissed the CPUC's definition of
transmission in favor of the plain meaning of the word in
Webster's dictionary. (3 AA 727:2-5.) The court then dissected
the definition of "Interconnection Facilities" in the
Interconnection Agreement before concluding the Solar Project
"as a whole includes 'facilities' for the transmission of electrical
energy, given the Project's particular function or end is to export,
i.e., transmit, electrical energy generated by the solar panels to
Edison for bill credits pursuant to the RES-BCT program and
includes the District's interconnection facilities." (3 AA 729:23-
730:16.)
24148.00049\29630166.3 -40-
Both the RES-BCT Program's definition of interconnection
and the CPUC's definition of transmission recognize there must
be some mechanism to convey electrical energy to the utility's
grid for even small energy projects. But only transmission
projects involving the bulk transfer of energy, as opposed to the
local distribution network run by the utility, fall within the
jurisdiction of the CPUC and the local land use authority. (38 AR
1532; Gov. Code, § 53091, subd. (e).)
This conclusion is consistent with the purpose of the
statutory scheme and legislative history. Assembly Bill 242
(Gualco, 1977) removed from Government Code section 53091 a
previous exemption from zoning ordinances for facilities that
store or transmit energy in response to complaints over the
placement of "large transmission poles in residential
neighborhoods" in 1976 by the Sacramento Municipal Utility
District. (1 AA 220.) In recommending approval of the legislative
change, the Enrolled Bill Report of the Governor's Office of
Planning and Research stated:
AB 242 would properly require electrical transmission lines to be placed in accordance with a local government's zoning ordinance. The bill would ensure that public concerns are considered in connection with the placement of large transmission
24148.00049\29630166.3 -41-
towers, which can often be unsightly. Although special districts must presently advise local governments of their construction projects, the districts can place transmission towers wherever they choose.
(Id. at 1 AA 221, underscoring added.) Accordingly, the exception
to the Absolute Exemption for facilities generating electrical
energy that involve "transmission" was intended to cover large
transmission lines or poles transmitting energy to customers, not
any form of transmitting electrical energy to the grid. The trial
court's literal interpretation of "transmission" would
consequently require any solar project carried out by the
approximately 300 community services districts in California,
and potentially other special districts, to be subject to local
zoning. (Gov. Code, § 61001, subd. (a)(4); 3 AR 71-73 [SunPower
example projects], 21 AR 1254.)
The Solar Project not only lacks a "transmission"
component as defined by the CPUC and intended by the
Legislature in enacting the Absolute Exemption, but the Solar
Project would also not have any impacts or require any upgrades
to SCE's local distribution system. Both the System Impact
Study prepared by SCE in May 2015 and the Interconnection
Agreement state no transmission network or distribution
24148.00049\29630166.3 -42-
upgrades are necessary for the interconnection of the Solar
Project to SCE's existing transmission facilities. (30 AR 1461, 45
AR 1688.)13
Accordingly, the Solar Project is not subject to City zoning
under the Absolute Exemption, and the exception for
transmission does not apply.
C. The Solar Project is Subject to the Qualified
Exemption from City Zoning Because There is
No Feasible Alternative
In addition to falling under the Absolute Exemption, the
Solar Project is not subject to City zoning under the Qualified
Exemption in Government Code section 53096, subdivision (a),
which reads:
Notwithstanding any other provision of this article, the governing board of a local agency, by vote of four-fifths of its members, may render a city or county zoning ordinance inapplicable to a proposed use of property if the local agency at a noticed public hearing determines by resolution that there is no feasible alternative to its proposal. The governing
13 "Distribution Upgrades" are defined in the agreement as "Mlle additions, modifications, and upgrades to the Distribution Provider's Distribution System at or beyond the Pont of Interconnection to facilitate interconnection of the Generating Facility. Distribution Upgrades do not include Interconnection Facilities." (45 AR 1656.)
24148.00049\29630166.3 -43-
board may not render a zoning ordinance inapplicable to a proposed use of property when the proposed use of the property by the local agency is for facilities not related to storage or transmission of water or electrical energy, including, but not limited to, warehouses, administrative buildings or automotive storage and repair buildings.
In other words, in the event this Court were to determine the
Solar Project is not subject to the Absolute Exemption because it
involves the "transmission" of electrical energy, the Solar Project
is still subject to the Qualified Exemption for facilities
transmitting electrical energy. The City failed to satisfy its
burden to show the District's determination there is no feasible
alternative to the Solar Project was not supported by substantial
evidence. The administrative record excerpts from the City's
reply brief, which are cited in the trial court's Ruling,
misconstrue the suitability of relocating the Solar Project on the
Hesperia Farms Property.
In 2015, at a noticed public hearing, the District's Board of
Directors unanimously adopted Resolution No. 2015-14
concluding that all Solar Project facilities of consequence are
related to energy and therefore exempt under the Qualified
Exemption. (71 AR 2245-2249; Lafayette, supra, 16 Cal.App.4th
at pp. 1017-1018.) The Court "must construe [Government Code]
24148.00049\29630166.3 -44-
section 53096 in the context of the entire statutory scheme of
which it is a part, in order to achieve harmony among the parts."
(Id. at p. 1015, citations omitted.) Thus, the Absolute Exemption
and the Qualified Exemption "should be interpreted in such a
way as to make them consistent with each other, rather than
obviate one another." (Ibid.)
As established in Section VI.A. above, there is no dispute
that the Solar Project would directly and immediately produce
electrical energy. Therefore, the Solar Project is exempt from
City zoning under the Absolute Exemption as a matter of law.
Likewise, under the plain meaning of the language in the
Qualified Exemption, the Solar Project consists of facilities
related to "transmission" in as much as some form of
transmission is necessary to feed the electrical energy generated
to the grid (see Section VLB. above).
The Solar Project is distinguishable from the service center
in Lafayette that was determined to fall outside the Qualified
Exemption because not "all or substantially all of [its] proposed
facilities of consequence" were related to the storage or
transmission of water. (Lafayette, supra, 16 Cal.App.4th at p.
1017, emphasis original.) Unlike the listed examples of "ancillary
24148.00049\29630166.3 -45-
structures" excluded from the Qualified Exemption in
Government Code section 53096, subdivision (a) (warehouses,
administrative buildings or automotive storage and repair
buildings), the Solar Project has a connection with, is integral,
and directly facilitates the transmission of energy. (Id. at p.
1016.). The Legislature intended for the District to maintain
discretion as to the optimal location of the Solar Project. (Ibid.).
The criteria for the Qualified Exemption is further satisfied
by substantial evidence supporting the District's determination
there was no feasible alternative to locating the Solar Project on
the Hesperia Farms Property. "Feasible" is defined as "capable of
being accomplished in a successful manner within a reasonable
period of time, taking into account economic, environmental,
social, and technological factors." (Gov. Code, § 53096, subd. (c).)
In September 2014, the United States Department of the
Interior Bureau of Reclamation issued a draft Water Supply,
Wastewater, and Alternative Energy Supply Study for Lake
Arrowhead, which SunPower provided input on prior to being
contacted by the District to submit a proposal for the Solar
Project. (17 AR 425-426, 18 AR 484-487.) The study included a
report from SunPower determining "the District's [Hesperia
24148.00049\29630166.3 -46-
Farms] property is a prime location for solar development"
related to capital costs, utility inflation, and photovoltaic
degradation. (18 AR 507-508.) SunPower's June 2015 proposal
to the District identified the Solar Project site "as located within
a solar region categorized as "Excellent" by the National
Renewable Energy Laboratory" and "within the heart of the best
solar in the United States." (3 AR 77.)
The District worked with SunPower to select the
appropriate and crucial site for the Solar Project. (71 AR 2246.)
Project site conditions are critical to SunPower as well as the
District because SunPower agreed to a performance guarantee,
which is impacted by the location of the site. (3 AR 98-99; 59 AR
1917-1918.) The District found that it does not own any property,
other than the Hesperia Farm Property, with the acreage and
necessary components for a solar project due to terrain, trees, and
weather conditions. (71 AR 2247.) All three solar providers that
submitted proposals to the District's Ad Hoc Committee, and an
outside consultant considered by the District to assist in
assessing such proposals, agreed the Hesperia Farms Property is
crucial for the RES-BCT Program, as opposed to the more
developed and mountainous area of Lake Arrowhead. (11 AR
24148.00049\29630166.3 -47-
215-216 [HelioPower], 246-247 [Martifer]; 283 [SunPower]; 17 AR
431-432.)
The District selected the southern portion of the Hesperia
Farms Property, as opposed to the northern portion initially
suggested by one solar provider (Martifer), because of the closer
proximity to the required infrastructure and meter onsite for
interconnection to SCE; the need to avoid the District's
percolation ponds; and the relatively flat ground requiring
minimal grading. (3 AR 78 [SunPower Site Plan at southern
portion], 45 AR 1673 [SCE diagram showing interconnection
facilities and metering equipment], 11 AR 249-250 [discussion of
northern portion], 324-326 [existing meter location].) The June
2014 Ad Hoc Committee meeting revealed concerns that location
of the Solar Project in the northern portion of the Hesperia
Farms Property would require an electrical meter or line upgrade
and could have geotechnical issues related to soil conditions.
(11 AR 249-252.)
Contrary to the trial court's Ruling, the administrative
record shows that District staff and two Board of Directors on the
Ad Hoc Committee confirmed the northern portion of the
Hesperia Farms Property would require a new meter, whereas
24148.00049\29630166.3 -48-
the southern portion already contains a meter. (3 AA 734-735; 11
AR 324-326 [discussion between former District General
Manager Leo Havener and Board of Directors Ralph Wagner and
Ryan Gross confirming existing meter at "south end" of Hesperia
Farms Property].) Thus, the Ad Hoc Committee determined that
the preliminary conclusions made in Martifer's presentation
regarding preference for the northern portion of the property due
to a "three phase electrical line" were incorrect, and the
Committee ultimately chose SunPower to construct the Solar
Project. (Ibid.) In fact, a renewable energy consultant with
significant experience analyzing public sector solar project
proposals even questioned Martifer's knowledge of the RES-BCT
Program. (17 AR 421, 423 434-435.)
In 2015 the District also confirmed that no transmission
network or distribution upgrades are necessary for
interconnection of the Project to SCE's existing transmission
facilities in the southern portion, further reducing costs. (30 AR
1461, 45 AR 1688.)
Additionally, the District determined that locating the
Solar Project in the southern portion of the Hesperia Farms
Property would not result in negative land use impacts, despite
24148.00049\29630166.3 -49-
some initial concerns expressed by the Ad Hoc Committee. (11
AR 324-325.) The southern portion is relatively isolated with no
residences located within one-quarter mile to the west, north, and
east. (69 AR 2015, 2039 [Project street view photo], 71 AR 2251
[Project aerial photo].) The District adopted a mitigation
measure under CEQA requiring views of the Solar Project to be
shielded by a low vegetative barrier installed prior to
construction, still allowing for scenic views north of the Solar
Project site. (69 AR 1963, 1980, 71 AR 2248.) The nearest
residence located approximately 200 feet south of the Project site,
which also has solar panels, did not oppose the Solar Project. (11
AR 324-325, 73 AR 2270-2273.) Lastly, the Solar Project site
would not otherwise generate development revenue for the City
because it is currently used for the District's wastewater
treatment operations.
Compliance with City zoning in 2015 when the Solar
Project was approved by the District would have required the
District to redesign and relocate the Solar Project away from the
nearest residentially designated property, including installation
of additional alternating current conductor between the solar
array and the interconnection point. (71 AR 2247.) This would
24148.00049\29630166.3 -50-
have resulted in a significant cost increase and project delay and
diminished financial return on the Solar Project for District
ratepayers. (Ibid.)
Accordingly, substantial evidence supports the District's
selection of the Solar Project site under the Qualified Exemption;
any reasonable doubts are resolved in favor of the District's
findings. (Sierra Club, supra, 121 Cal.App.4th at p. 1497; Young,
supra, 97 Cal.App.4th at p. 225.)
VII. CONCLUSION
The District's Solar Project is exempt from City zoning
under the Absolute Exemption because it would directly and
immediately produce electrical energy under the plain meaning
of the statute. Alternatively, the Solar Project falls under the
Qualified Exemption for facilities related to the transmission of
electrical energy because there is no feasible alternative to the
-51- 24148.00049\29630166.3
Solar Project. The trial court's judgment on the City's second
cause of action should be reversed.
Dated: March 20, 2018 BEST BEST & KRIEGER LLP
By: HOWARD B. GOLDS LINDSAY D. PUCKETT Attorneys for Defendants and Appellants LAKE ARROWHEAD COMMUNITY SERVICES DISTRICT and BOARD OF DIRECTORS OF LAKE ARROWHEAD COMMUNITY SERVICES DISTRICT
24148.00049\29630166.3 -52-
CERTIFICATE OF COMPLIANCE
Counsel of Record hereby certifies that pursuant to Rule
8.204(c)(1) or 8.360(b)(1) of the California Rules of Court, the
attached APPELLANTS' OPENING BRIEF is produced using 13-
point Roman type, including footnotes, and contains
approximately 10,105 words, which is less than the total words
permitted by the rules of court. Counsel relies on the word count
of the computer program used to prepare this brief.
Dated: March 20, 2018 BEST BEST & KRIEGER LLP
By: HOWARD B. GOLDS LINDSAY D. PUCKETT Attorneys for Defendants and Appellants LAKE ARROWHEAD COMMUNITY SERVICES DISTRICT and BOARD OF DIRECTORS OF LAKE ARROWHEAD COMMUNITY SERVICES DISTRICT
-53- 24148.00049\29630166.3
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APPELLANTS' OPENING BRIEF
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x Placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid.
I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Riverside, California.
24148.00049\29630166.3 -54-
By personal service. I personally delivered the documents to the persons at the addresses listed below. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an Individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening.
By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed below and providing them to a professional messenger service for service. A Declaration of Messenger is attached.
By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. By e-mail or electronic transmission. Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful.
See Mailing List Below
I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
Executed on March 20, 2018, at Riverside, California.
/s/Cheryl Seaman
24148.00049\29630166.3
Cheryl Seaman
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MAILING LIST FOR CASE: E067679
City of Hesperia v. Lake Arrowhead Community Services District et al.
Eric L. Dunn, Esq. San Bernardino County
June S. Ailin, Esq. Superior Court Nicholas P. Dwyer, Esq. Attn: Judge Donald Alvarez
Aleshire & Wynder, LLP 247 West Third Street, Dept.
2361 Rosecrans Avenue, Suite 475 S23
El Segundo, CA 90245 San Bernardino, CA 92415- 0210
Attorneys for Petitioner/Plaintiff/ Respondent City of Hesperia
Emily L. Murray, Esq. Attorney General Allen Matkins Leck Gamble Mallory & Office of the Attorney Natsis LLP General 515 South Figueroa Street, 9th Floor 300 South Spring Street Los Angeles, CA 90071-3309 Los Angeles, CA 90013 Attorneys for Real Party in Interest SunPower Corporation Systems Office of the Attorney General
The Supreme Court of California 350 McAllister Street San Francisco, CA 94102
(Via electronic submission only)
-56- 24148.00049\29630166.3
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