Posted by: Patricia Salkin | September 7, 2019

CA Appeals Court Holds Project was Not Entitled to Zoning Ordinance Exemption Because the Proposed Solar Project Included the Transmission of Electrical Energy

This post was authored by Matthew Loeser, Esq.

The Lake Arrowhead Community Services District owned and used portions of a 350-acre area known as Hesperia Farms to discharge and percolate treated effluent from its water reclamation facilities in Lake Arrowhead into the Mojave River groundwater basin. The proposed solar energy project was to be located on Arrowhead Lake Road in the far eastern portion of the City of Hesperia, which consisted of five to six acres of Hesperia Farms not being used for wastewater operations. The District adopted a resolution that its proposed solar energy project was absolutely exempt from the City’s zoning ordinances under section 53091(e), and qualifiedly exempt under section 53096(a), following the requisite determination that there was no feasible alternative to the proposed location of the project. The Superior Court found in favor of the City and held that the District and its board must comply with the City’s relevant zoning ordinance prior to implementing the project.

At the outset, the court noted that the plain and commonsense meaning of the first sentence of section 53091(e) would allow an exemption from the City’s zoning ordinances for the Solar Project. In determining whether the exception to the exemption applied, the court analyzed the  subdivision’s remaining sentence, which set forth: “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.” Here, since the energy generated by the Solar Project would “flow through the meter at the interconnection facilities to the existing Edison distribution system,” the court found that this “flow” was a “transmission” under the plain meaning of the word “transmission.” Additionally, because the Solar Project required the installation of approximately 250 feet of underground cable for interconnection to Edison’s facilities, the project involved the “transmission of electrical energy” for purposes of the exception to the exemption in section 53091(e). Accordingly, the District failed to meet its burden of establishing that the trial court erred in ruling section 53091(e) did not provide the District with an absolute exemption from complying with the City’s zoning ordinances.

The District next argued that section 53096(a) provided a qualified exemption for the Solar Project. The court found the administrative record did not contain substantial evidence to support the District’s finding that there was no feasible alternative to installing the solar farm at any location other than the proposed project site. As the Board failed to consider any alternative location for the Solar project, the Board’s finding that “there is no feasible alternative to the location of the Solar Project at the Hesperia Farms site” was not supported by substantial evidence. Thus, the District’s resolution to render the City’s zoning ordinances inapplicable to the Solar Project constituted a prejudicial abuse of discretion. Furthermore, since neither section 53091(e) nor section 53096(a) provided an exemption from the City’s zoning ordinances for the Solar Project, the trial court did not err in setting aside the Board’s determination that an exemption applied and in issuing the requested writ of mandate.

City of Hesperia v. Lake Arrowhead Community Services District, 2019 WL 3242974 (CA App. 7/19/2019)

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