By William W. Abbott & Kristen Kortick
In City of Hesperia v. Lake Arrowhead Community Services District (2019) 37 Cal.App.5th 734, the 4th Appellate District affirmed a writ of mandate issued to Lake Arrowhead Community Services District (“District”) directing the District to set aside the District’s approval of a solar energy project (“the Project”). The District proposed the Project in a location inconsistent with local zoning. The District, relying upon its status of an agency potentially exempt from local zoning, moved forward with preparation of a mitigated negative declaration (“MND”) and findings. The City provided comments that the Project required a general plan amendment and zoning change, and that it conflicted with Hesperia Municipal Code Section 16.16063.B. Thereafter, the District approved an energy services agreement with SunPower Corporation and generator interconnection agreement with Southern California Edison for the energy generation resulting from the Project. The District held a public hearing on the Project, found the Project exempt from local zoning and approved the Project with a 4/5ths vote over the City’s repeated objections. The District maintained that its Project was exempt from local zoning by virtue of Government Code §§ 53091 and 53096(a). In the ensuing litigation, the trial court and appellate court rejected the District’s exemption arguments.
The District provides water services to 8,000 water customers and 10,500 wastewater customers. The District discharges its wastewater at a 350-acre site, Hesperia Farms. The District proposed to utilize four to six acres of Hesperia Farms for a solar farm. The location of the proposed solar farm did not comply with the City’s zoning code for such facilities.
The City filed suit against the District seeking a writ of mandate to overturn approval of the Project based upon conflict with the City’s zoning code. The trial court granted the City’s writ of mandate, ruling that the Project was not exempt based upon Gov. Code § 53091(e) and that the administrative record did not support the District’s finding of a qualified exemption under §53096(a) that there was “no feasible alternative to installing the solar farm at any location other than the Project Site.”
The appellate court affirmed the ruling of the trial court holding that transmission of electrical energy does not qualify the Project for an exemption based upon § 53091(e) and the administrative record did not support the District’s finding of no feasible alternatives for the Project location under § 53096(a). The court explained that § 53091(a) states the general rule that each local agency must comply with zoning ordinances based on the city where the facility is located. Gov Code § 53091(e) then provides an exemption for facilities for the “production or generation of electrical agency.” Since the Project included transmission, not just production generation, the court concluded that the District could no longer rely upon the production or generation exemption as exemptions are narrowly construed.
Additionally, the appellate court agreed with the trial court’s determination that the District failed to properly find “no feasible alternatives.” The District argued that if it did not qualify for an exemption under §53091(e) then it qualified under §53096(a) because its findings demonstrated no feasible alternative location for the Project. The appellate court found the administrative record did not contain substantial evidence to support the District’s argument as the District had not considered any alternative project location. As such, the appellate court agreed with the City that the District failed to meet its burden to show that an alternative project location was not feasible. In the absence of substantial evidence in the record regarding alternatives, the District could not rely upon the qualified exemption of §53096(a) to exempt the District from local zoning.
William Abbott is an Attorney at Abbott & Kindermann, Inc. Kristen Kortick is a Law Clerk at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.