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Farming Solar Rays: County Decision to Approve Industrial-Scale Solar on Williamson Act Lands OK'd




by:
Jeffrey W. Forrest
Kurt Siegal
Sheppard, Mullin, Richter & Hampton LLP - San Diego Office

 
July 16, 2013

Previously published on July 11, 2013

In Save Panoche Valley et al. v. San Benito County, the Sixth District Court of Appeal held that San Benito County had not violated the Williamson Act or the California Environmental Quality Act when it approved construction of a 420-megawatt solar project on land designated as “agricultural rangeland.” The court sided with the County on both claims, holding that there was substantial evidence showing that cancellation of Williamson Act contracts was justified because other public concerns substantially outweighed the Williamson Act’s goals of preserving agricultural land. The court further held that the County adequately considered feasible project site alternatives and that the final environmental impact report properly analyzed the project’s impacts. The court’s holding on the adequacy of agricultural mitigation measures to mitigate agricultural impacts to below a level of significance may represent a departure from previous cases around the state.

Factual and Procedural Background

Solargen Energy, Inc. and related energy companies (“Solargen”) applied for a conditional use permit to construct a 420-megawatt solar power plant in San Benito County on October 16, 2009. The proposed project would transmit energy for at least 30 years, and Solargen would be responsible for restoring the project site to suitable agricultural land after completion of the project’s lifespan.

Pursuant to CEQA, Solargen prepared and circulated a draft environmental impact report for the project that analyzed potential environmental impacts. In addition, the DEIR analyzed mitigation procedures for the project such as construction at a privately owned alternate site location located 60 miles away in Kings and Fresno Counties known as The Westlands CREZ (“Westlands”). During the comment period that followed the DEIR release, the County received public input regarding methods for alleviating local environmental impacts.

The FEIR was released on September 30, 2010 and incorporated several suggested mitigation measures. Specifically, the FEIR proposed a smaller project site and the creation of biological conservation easements to reduce environmental impacts. The FEIR also called for a number of specific mitigation measures to reduce impact on local biological species—notably, creating buffer zones between the project and found, endangered species.

The County Board of Supervisors certified the FEIR and approved the Williamson Act contract cancellations on October 12, 2010. The County Planning Commission approved the project’s conditional use permit several days later. When Save Panoche Valley (“SPV”) appealed the conditional use permit approval to the Board, the Board upheld the approval. A trial court judgment followed, upholding the Board’s findings of compliance with both the Williamson Act and CEQA.

Renewable Energy Interests Substantially Outweigh Interest in Preserving Agricultural Land

On appeal, SPV argued that the County improperly cancelled Williamson Act contracts because it lacked sufficient evidence showing that “other public concerns” substantially outweighed the Williamson Act’s goal of preserving agricultural land. SPV’s arguments echoed the conclusions of the County Agricultural Preserve Advisory Committee (APAC) to deny the Williamson Act contract cancellation application. In siding with the Board’s decision, the court first noted that it is not the role of the court to reweigh the County’s policy decision to cancel a Williamson Act contract if there is substantial evidence to support the decision. The court then looked to mandates in prior California sustainable energy legislation, such as the California Global Warming Solutions Act greenhouse gas reduction targets and the 33% Renewable Portfolio Standard, to determine that “California’s interest in renewable energies is well-established.” Because the solar project would help California reach its stated energy goals, the court held that there was “substantial evidence” to support the Board’s decision that renewable energy interests outweighed the goal of preserving agricultural land. The court was not persuaded by SPV expert testimony that other projects in the queue would assist the state in reaching the Renewable Portfolio Standard without the County approving this project.

Additionally, the court rejected SPV’s claim that Westlands was a proximate, noncontracted alternative available for the project. The court noted that “proximate” land for Williamson Act purposes is land that can “serve as a practical alternative for the proposed use.” Because Westlands was located 60 miles away in two different counties and potentially encumbered by several Williamson Act contracts, there was substantial evidence to support the Board’s conclusion that no viable alternatives were available.

The Board and FEIR Complied with CEQA Requirements

SPV further argued that the Board’s project approval violated CEQA because SPV claimed that Westlands offered a feasible, environmentally superior alternative to the Panoche Valley site. The court rejected this argument and upheld the Board’s determination that the Westlands site was infeasible on grounds that it could not be implemented within a reasonable period of time was supported by substantial evidence. This evidence included the following: (1) Westlands was located in two other counties where there was no assurance those counties would approve an industrial scale solar project; and (2) Solargen would have to spend considerable time conducting due diligence of the site, negotiate an agreement with the Westlands site landowner, and develop site plans.

We note that the County also found that it would not receive the potential job creation and other economic benefits of the project if it were constructed in the other counties. The County also found that Westlands might be legally infeasible because another entity might have entered into an agreement with the Westlands site owner. However, because the County found that any one of its infeasibility justifications alone was sufficient to override the project’s significant environmental impacts, no further analysis of these other grounds by the court was required.

The court also rejected various SPV arguments as to the adequacy of the FEIR biological analysis. The court held that the FEIR effectively addressed issues regarding potential species endangerment and contained specific mitigation measures to minimize any negative impacts.

Finally, the court rejected SPV’s argument that the County needed to demonstrate no net loss in agricultural lands by converting non-agricultural lands to agricultural lands in order to support its finding that agricultural impacts were mitigated to below a level of significance by citing to CEQA Guidelines section 15370, which defines mitigation as including “[r]ectifying the impact by repairing, rehabilitating, or restoring the impacted environment,” “minimizing impacts by limiting the degree or magnitude of the action," and "compensating for the impact by replacing or providing substitute resources or environments."

The court held that enforceable measures, such as agricultural conservation easements, substituting the site’s cattle grazing use with on-site and off-site sheep grazing, and Solargen’s restoration of the project soils back to agricultural use upon decommissioning of the project, mitigated the project’s agricultural impacts to a less than significant level.

Significance of the Case

The court’s holding on the adequacy of agricultural mitigation measures to mitigate agricultural impacts to a less than significant level may represent a departure from previous cases around the state.

Prior to this case, many courts and lead agencies found that a statement of overriding considerations was needed making SPV’s argument that agricultural conservation easements were not full mitigation -- "[t]here is a finite amount of land that is suitable for agricultural use. The purchase of fee title or of agricultural easements over other agricultural parcels off-site would not avoid, reduce or compensate for the impact of converting land on the site to campus industrial use because it would not offset the loss of agricultural land caused by the Project - i. e., there would still be a net reduction in the total amount of land suitable for agricultural use that is available for such use. At most, the suggested mitigation measures would prevent the conversion of other agricultural lands as a result of other hypothetical future projects on any parcels that were purchased or had a conservation easement placed on them." County of Santa Cruz v. City of San Jose (WL 1596613 at 30; emphasis added). See also Friends of the Kangaroo Rat v. California Department of Corrections (2003) 4 Cal. Rptr. 3d 558, 566-567; South County Citizens for Responsible Growth v. City of Elk Grove (2004) WL 219789 at 8.

It appears that in Save Panoche Valley, the court applied the view that agricultural conservation easements are similar to conservation easements, which can mitigate biological impacts to below a level of significance without accounting for every square foot of impacted habitat. (Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209.)

However, because the County adopted conservation easements, a restoration plan, and a sheep grazing plan, the court was not asked to decide whether agricultural conservation easements alone would be sufficient to mitigate an impact to below a level of significance. That an agricultural restoration plan prevents the permanent conversion of valuable farming soils may be a significant factor in whether or not industrial-scale solar projects have any significant impact on the protected agricultural resource to begin with, or, as analyzed by San Benito County in this case, is part of a mitigation plan to reduce a potentially significant agricultural impact to below a level of significance.

Finally, lead agencies should also take note that the court agreed that where a lead agency makes each infeasibility justification independent of the other to support its findings, the court is satisfied if there is substantial evidence to support one of the grounds for infeasibility. The defensibility of CEQA approval is enhanced by such clarifications, should a court find that any one infeasibility justification lacks substantial evidence.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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