By William W. Abbott
Save Panoche Valley v. San Benito County (June 25, 2013, H037599) ___ Cal.App.4th ___.
Famous for its bird sitings (http://www.audublog.org/?p=4155), Panoche Valley sits nestled between Interstate 5 and Highway 101 (http://www.cosb.us/Solargen/). I wager that few Californians have passed through this quiet terrain, and but for this court decision, would not know that this valley exists. Besides its limited number of residents and great diversity in bird species, Panoche Valley is also notable in that (1) it is exposed to high levels of solar radiation, and (2) it is bisected by a 230 kV transmission line. Just as no-good-deed-goes-unpunished, neither do conflicting environmental values resolve themselves without a CEQA lawsuit.
The Panoche Valley solar panel project involves approximately 5,000 acres, much of it covered by Williamson Act contracts. The project consists of panels necessary for a 420 megawatt facility, along with related improvements necessary to tie into California’s transmission grid. Originally, the developer sought a finding that the solar facility was consistent with the Williamson Act contracts, but later dropped that strategy to seek contract cancellation. As one would anticipate for a large project in an environmentally sensitive area, agencies and the public commented on the species impact analysis. After certification of the EIR, the Board of Supervisors cancelled the Williamson Act contracts and approved the project. Opponents sued, and the trial court ruled for the county and applicant. The opponents appealed. Addressing both EIR and Williamson Act issues, the court of appeal affirmed the lower court decision.
Alternatives. Opponents challenged the County’s determination that the Westlands CREZ, a potential solar site located nearby in Fresno and Kings counties to be an infeasible alternative. The county found the CREZ to be infeasible on multiple grounds including that fact that it was located outside of San Benito County, a relevant consideration in the assessment of the court of appeal. As the Board found that each basis for infeasibility stood on its own and operated independently from the others (as it also did for the statement of overriding considerations,) the opponents had to demonstrate that there was a lack of substantial evidence on each stated ground, a burden that they failed to overcome.
Species Impacts. With respect to the Blunt-nosed Leopard Lizard, the appellate court upheld the EIR’s requirement of a later protocol level survey to be conducted prior to commencement of construction, and where discovered, a minimum 22 acre buffer zone for each lizard. In response to claims of deferred mitigation, the appellate court found the EIR contained the requisite performance standards (blunt nosed leopard lizard, nest birds, San Joaquin coachwhip, coast horned lizard, kangaroo rat, San Joaquin pocket mouse and Tulare grasshopper mouse) necessary to satisfy CEQA’s standards for deferred mitigation. The opponents also challenged the mitigation ratios, but the appellate court held that CEQA did not require acre-for acre mitigation, only mitigation to a less than significant level. Substantial evidence in the record supported the Board of Supervisors’ findings in that regard.
Agricultural Lands Mitigation. The EIR required conservation easements and restoration of the site to its original condition at the conclusion of the project was sufficient to reduce impacts to lands. Notwithstanding the opponents’ claim, CEQA did not require the applicant to create additional agricultural lands such that there would be a net-zero effect.
Findings and Statement of Overriding Considerations. The opponents challenged the timing of the statement of overriding considerations, which occurred on the same date as the contract cancellation but in advance of final approval. The appellate court found no error as the cancellation of the contracts constituted a form of project approval. As against a general attack there was a lack of substantial evidence in support of the project findings, the court found sufficient substantial evidence in the record. The fact that there was conflicting evidence in the record did not negate the substantial evidence in support of the Board’s conclusions.
Although cancellation of Williamson Act contracts is disfavored, contracts can be cancelled if the approving agency makes certain findings, which include that “other public concerns substantially outweigh the objectives of this chapter, (and) there is no proximate non contracted land which is both available and suitable for the use to which it is proposed the contracted land be put….”. Government Code section 51282. The administrative record included relevant discussions of the legislative push to expand renewable energy sources making up California’s energy portfolio, as well as an analysis of the relative role of the contracted land as a percentage of San Benito County and statewide Williamson Act lands. This satisfied the first prong of the test for cancellation. The record also contained substantial evidence as to the availability (in actuality, the lack of availability) of the Westlands CREZ site. This evidence supported the second prong of the test necessary for a contract cancellation that there was no proximate non contracted land available for the proposed use. As the appellate court observed, it was not tasked “with weighing the pros and cons of cancelling the Williamson Act contracts”. That responsibility belonged to the Board of Supervisors. Having found substantial evidence to support the required findings, the appellate court was satisfied.
Comment: The solar project in Panoche Valley is an outgrowth of the legislative mandate to increase the mix of renewable energy sources in California’s generation portfolio. As with other renewable energy projects proposed in recent years, this is a positive step towards achieving California’s objective of reducing impacts to climate change, unless apparently the proposed project is to be located within the boundaries of California. When that happens, the state strategy defaults to “let’s do the right thing, but let’s hang our dirty laundry elsewhere” philosophy in environmental policy advancement. The blame lies not with the various interest groups who participate in the debate, but with the State Capitol. California lacks an institutional mechanism by which conflicting policy objectives can be resolved. Right now, every regulator and every interest group is out to defend their own turf without regard for any other policy considerations and the state only makes progress through the default of what is the least objectionable, not what is best. The war of policy attrition will continue until the Legislature and the Governor step up, provide leadership, and make hard choices. Good luck with that.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.