City of Hesperia v. Lake Arrowead Comm. Serv. Dist. ( 2019 )

Filed 7/19/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CITY OF HESPERIA, D075100
Plaintiff and Respondent,
v. (Super. Ct. No. CIVDS1602017)
LAKE ARROWHEAD COMMUNITY
SERVICES DISTRICT ET AL.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Bernardino County,
Donald R. Alvarez, Judge. Affirmed.
Best Best & Krieger, Howard B. Golds and Lindsay D. Puckett for Defendants and
Appellants.
Aleshire & Wynder, Eric L. Dunn, June S. Ailin and Nicholas P. Dwyer for
Plaintiff and Respondent.
Over the years since at least 1959, the Legislature has attempted to achieve a
balance between the state's interest in allowing local agencies to produce, generate, store,
and transmit water or electrical energy and the cites' and counties' control over local
building and zoning. This appeal requires the court to consider whether a solar energy
project proposed by a local agency, the Lake Arrowhead Community Services District
(District), is exempt from—or whether the District must comply with—the zoning
ordinances of the city in which the project is to be developed, the City of Hesperia (City).
Our analysis begins with the statutory requirement that, for purposes of a proposed
solar energy project, a local agency must comply with the zoning ordinances of the city
and county in which the project's facilities are to be constructed or located. (Gov. Code,
§ 53091, subd. (a); further undesignated statutory references are to the Government
Code.) Then, as potentially applicable here, section 53091, subdivision (e) (§ 53091(e)),
and section 53096, subdivision (a) (§ 53096(a)), each provides the agency with an
exemption for the location and construction of certain types of facilities.
Section 53091(e) provides an absolute exemption for "the location or construction of
facilities . . . for the production or generation of electrical energy"—unless the facilities
are "for the storage or transmission of electrical energy," in which event the zoning
ordinances apply. Section 53096(a) provides a qualified exemption for an agency's
proposed use upon, first, a showing that the development is for facilities "related to
storage or transmission of water or electrical energy" and, second, a resolution by
four-fifths of the agency's members that "there is no feasible alternative to [the agency's]
proposal."
In the present case, the District adopted a resolution that its proposed solar energy
project was both (1) absolutely exempt from the City's zoning ordinances under
section 53091(e) and (2) qualifiedly exempt under section 53096(a), following the
requisite determination that there was no feasible alternative to the proposed location of
2
the project. The City successfully challenged the resolution in the underlying superior
court proceedings, where the court issued a judgment in favor of the City and a related
writ of mandate directing that the District and its board comply with the City's zoning
ordinance prior to implementing the project.
We affirm. As we explain, because the District's proposed project includes the
transmission of electrical energy, the exemption contained in section 53091(e) does not
apply to the project; and because the administrative record does not contain substantial
evidence to support the District's board's finding that there is no feasible alternative to the
proposed location of the project, the District prejudicially abused its discretion in
determining that the exemption contained in section 53096(a) applied to the project.
I. FACTUAL AND PROCEDURAL BACKGROUND1
The dispute in this matter is between the District, which is attempting to develop a
solar energy project on property it owns within the City's limits, and the City, which is
attempting to enforce its zoning regulations.
A. Introduction
The District is a community services district, established in 1978 pursuant to
section 61000 et seq. Although community services districts may be authorized to
1 We have disregarded factual statements in the parties' briefs that are not
accompanied by accurate references to either the administrative record or the superior
court record. (Cal. Rules of Court, rule 8.204(a)(1)(C); (Fierro v. Landry's Restaurant
Inc. (2019) 32 Cal.App.5th 276, 281, fn. 5 ["appellate courts may ' "disregard any factual
contention not supported by a proper citation to the record" ' "]; County of Riverside v.
Workers' Comp. Appeals Bd. (2017) 10 Cal.App.5th 119, 124 [courts " 'ignore' " factual
statements in appellate briefs that do not contain record references].)
3
provide various governmental services (e.g., water, trash, street lighting, fire protection,
parks and recreation, etc. (§ 61100)), the District is authorized only to provide water and
wastewater treatment services within its boundaries, which are sometimes referred to as
the Lake Arrowhead community.2 A September 2014 report from the United States
Department of the Interior indicates that the District served approximately 8,000 water
customers and 10,500 wastewater customers in the Lake Arrowhead community.
The District owns and uses 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,
which we describe in more detail at part I.B., post, is to be located on Arrowhead Lake
Road in the far eastern portion of the City (Project Site), which consists of five to six
acres of Hesperia Farms not being used for wastewater operations.
At all times, the Project Site has been located within an area the City has zoned as
"Rural Residential" and has designated as "Rural Residential 0-0.4 units per acre" under
the City's general plan. Section 16.16.063 of the City's Municipal Code (HMC) deals
generally with alternative energy technology standards, and subsection (B) deals
2 In a 2010 report, the District described its boundaries as follows: "[The District] is
located in the Lake Arrowhead Community which includes the areas commonly known
as Lake Arrowhead, Cedar Glen, Grass Valley, Twin Peaks, Crest Park, Rim Forest,
Skyforest, Deer Lodge Park, and Blue Jay. The District's boundary and sphere of
influence are currently coterminous and encompasses approximately 13 square miles
generally bordered by a combination of section lines, parcel lines, and the Crestline
Village Water District sphere on the west; a combination of section lines and parcel lines
on the north and east; and parcel lines (north and south of State Route 18) on the south."
4
expressly with "solar farms";3 and the parties agree that the District's proposed project
qualifies as a solar farm for purposes of this ordinance. HMC section 16.16.063(B)
provides in relevant part: "Solar farms shall only be allowed on nonresidential and
nonagricultural designated properties with approval of a conditional use permit by the
planning commission. Solar farms shall not be permitted within six hundred sixty (660)
feet of a railway spur, any interstate, highway, or major arterial, arterial, or secondary
arterial roadway; or any agricultural or residentially designated property."
( [as of July 19,
2019].)
B. The District's Hesperia Farms Solar Photovoltaic Project & the City's Objections
In January 2014, the District received an analysis from an outside engineering
consultant regarding the potential development of solar power at its Hesperia Farms site
(the Solar Project). In June 2014, the District's board of directors (Board) created a Solar
3 In December 2015, at the time the District first claimed an exemption for the Solar
Project, the HMC contained 17 separate titles.
( [as of July 19, 2019].) Section 16.16.063 was entitled "Alternative energy
technology standards" and was found at title 16 ("Development Code"), chapter 16.16
("Land Use Designations"), article III. ("Additional Uses").
( [as of July 19,
2019].) HMC section 16.16.063 reads the same today
( [as of July 19, 2019])
and has not changed since June 2012 (Ord. No. 2009-12, § 3, 2-16-10; Ord. No. 2011-08,
§ 3 (Exh. A), 8-2-11; Ord. No. 2012-07, § 3 (Exh. A), 6-19-12).
5
Power Alternatives Ad Hoc Committee which then considered presentations from three
solar power vendors for the Solar Project.
By late May of 2015, the City provided the District with comments to an Initial
Study and Mitigated Negative Declaration for the Solar Project (initial mitigated negative
declaration) that the District prepared and circulated pursuant to the California
Environmental Quality Act (CEQA). According to the City, the Solar Project was "a
0.96 megawatt solar facility on five to six acres within the City" with "a total of 2,160
solar panels" on a site that "will continue to be used for growing forage crops and
disposal of treated effluent that is generate by wastewater treatment plants in Lake
Arrowhead." More specifically, the City commented that the initial mitigated negative
declaration both "requires a general plan amendment and zone change to be [filed] with
the City" and "does not address how the project will avoid being within 660 feet from the
property to the south, which is agriculturally designated," in violation of HMC
section 16.16.063(B) (which precludes solar farms within 660 feet of agriculturally
designated property).
In August 2015, the District entered into a generator interconnection agreement
with Southern California Edison Company (Edison), whereby the District's Solar Project
would produce electricity for use by Edison through Edison's electrical grid distribution
system in exchange for bill credits that Edison would apply to the District's ongoing
6
obligations to Edison for energy use at any location in the District.4 To this end, in
October 2015, the Board passed a resolution that authorized and approved the award of
an energy services agreement to SunPower Corporation, Systems (SunPower), subject to
conditions not relevant to this appeal.5 Pursuant to this resolution, in November 2015,
the District and SunPower entered into a formal "Engineering, Procurement and
Construction Agreement," according to which SunPower agreed to design, engineer,
construct, and install a 939.6 kW-dc single-axis tracking solar photovoltaic generation
system at the Project Site.
Following consideration of the comments from the City (described ante) and
others in response to the May 2015 initial mitigated negative declaration, the District
gave notice of "a public hearing at which the Board may make findings pursuant to
Section 53096 of the Government Code that there is no feasible alternative to the
proposed location of the solar project at the Hesperia Farm Solar Photovoltaic Project
4 Public Utilities Code section 2830 authorizes a local government renewable
energy self-generation bill credit transfer program (RES-BCT Program). Such a program
allows a special district, like the District here, to use and develop raw land for facilities
for the generation of energy and then, based on the energy created by those facilities,
apply for a bill credit to any districtwide location. (Ibid.)
5 The District took its action pursuant to section 4217.10 et seq., which provides in
part that "public agencies may develop energy conservation, cogeneration, and alternate
energy supply sources at the facilities of public agencies in accordance with this chapter."
(§ 4217.10.) In this context, an energy services agreement "means a contract entered into
by a public agency with any person, pursuant to which the person will provide electrical
. . . energy . . . to a public agency from an energy conservation facility"; and an energy
conservation facility "means alternate energy equipment, cogeneration equipment, or
conservation measures located . . . on land owned by public agencies." (§ 4217.11,
subds. (f), (e).)
7
Site and that, by four-fifths vote of the Board, the City of Hesperia's zoning ordinance is,
therefore, rendered inapplicable."6 The City responded to the notice, repeating its
original objections—namely, that the Solar Project required an amendment to the City's
general plan and a change in location to avoid a violation of HMC § 16.16.063(B)—and
setting forth its position in opposition to the District's potential actions to render the
City's local land use regulations inapplicable to the Solar Project.
At the District's December 15, 2015 meeting, the Board adopted resolution
No. 2015-14, which rendered the City's zoning ordinances inapplicable to the District's
Solar Project. In part, this resolution provides as follows:
"2. The Board finds and determines that the [Solar] Project
constitutes facilities for the generation of electrical energy, and
therefore meets the criteria for exemption from . . . City of Hesperia
zoning ordinances under Government Code section 53091,
subdivision (e).
"3. The Board finds and determines that for over a year the District's
Solar Power Alternatives Ad Hoc Committee and SunPower met on
numerous occasions and, with District staff, thoroughly reviewed
and analyzed all potential locations for the [Solar] Project. The
District does not own any other property that has the acreage and
necessary components for a successful solar project due to terrain,
trees, and weather conditions. Further, in order to comply with the
City's solar ordinance, the District would have to redesign and
relocate the Project away from the nearest residentially designated
property, which would include the installation of additional AC
conductor between the solar array and the Point of Interconnection
[with Edison's grid]. This would result in a significant cost increase,
measurable power loss, and project delay.
6 The District also revised the initial mitigated negative declaration in ways not
significant to this appeal and gave notice that, at the same hearing, the Board would be
considering the revised declaration and approval of the Solar Project under CEQA.
8
"4. Thus, the Board finds it is not feasible to install the solar
photovoltaic system at any other locations other than the [Project
Site].
"5. Based on the above-findings, the Board finds and determines
that pursuant to Government Code section 53096, there is no feasible
alternative to the location of the [Solar] Project at the Hesperia
Farms site, by four-fifths vote of the Board, City of Hesperia zoning
ordinances, including but not limited to, City of Hesperia Ordinance
No. 2012-07[7], are rendered inapplicable to the Project. (Sic.)"
The District gave, and on December 18, 2015, the City received, notice of the Board's
December 15 action, including a copy of resolution No. 2015-14.
C. The Litigation
In February 2016, the City filed the underlying action—i.e., a petition and
complaint—seeking a writ of mandate and declaratory and injunctive relief. The City
named as respondents/defendants the District and the Board and named as real parties in
interest SunPower, Edison, and a third party with which the District had contracted
related to the Solar Project. The District, the Board, and SunPower filed answers to the
petition/complaint. Edison and the third party filed disclaimers of interest in the dispute,
and the City dismissed the action without prejudice as to these two real parties in interest.
All three causes of action are based on the City's contentions that the Solar Project
is beyond the scope of the District's authority and that the siting, development, and
construction of the solar farm are subject to the City's zoning ordinances. In the first
cause of action, the City alleged that the District lacked the authority to undertake the
7 City of Hesperia Ordinance No. 2012-07 contains the most recent amendments to
HMC section 16.16.063. (See fn. 3, ante.)
9
Solar Project, because the District was only authorized to provide water and wastewater
treatment service, yet the anticipated services associated with the Solar Project involved
the provision of electricity. In the second cause of action, the City alleged that the
District was not exempt from the City's zoning ordinances. In the third cause of action,
the City sought declarations, consistent with the first two causes of action, that the Solar
Project was both beyond the scope of the District's authority and subject to the City's
zoning regulations.
The trial court conducted proceedings in mandate on the first two causes of action.
(Code Civ. Proc., § 1084 et seq.) Following an opening brief by the City, the District
filed an opposition (in which SunPower joined), and the City filed a reply to the
opposition. Counsel for the parties presented oral argument, after which the court took
the matter under submission, ultimately issuing a written ruling in October 2016.
Deciding that the District has authority under the RES-BCT Program (Pub. Util.
Code, § 2830) to produce electricity for Edison, the trial court denied the writ of mandate
under the first cause of action.
The trial court granted the City's requested relief as to the second cause of action,
issuing the writ of mandate, on the following grounds: The exceptions found at
sections 53091(e) and 53096(a)—which, if applicable, would exempt the Solar Project
from the City's zoning ordinances—do not apply to the Solar Project; and the
administrative record does not contain substantial evidence to support the District's
finding that there is no feasible alternative to installing the solar farm at any location
other than the Project Site.
10
At the City's request, the trial court dismissed the third cause of action for
declaratory relief.
In December 2016, the court entered judgment consistent with its October 2016
written ruling; and in February 2017, the court entered the same judgment with a copy of
the written ruling, nunc pro tunc to the December 2016 date (Judgment).8 In summary,
the Judgment ordered in part as follows: The requested relief in the first cause of action
(based on whether the District has the authority to produce electricity) is denied; the
requested relief in the second cause of action (based on whether the District must comply
with the City's zoning ordinances) is granted; and a writ of mandate shall issue, requiring
the District and the Board either to comply with the City's zoning ordinances prior to
implementing the Solar Project or, alternatively, to forego the project.9
The District timely appealed from the Judgment.
8 The Judgment, which indicates that it is "NUNC PRO TUNC" does not state the
nunc pro tunc date. Since the February 2017 document is identical in all respects to the
December 2016 document, except that the later document contains the referenced
"Exhibit A," we have assumed that the court intended the February 2017 filing to relate
back to December 2016 date.
9 "If the court determines that the action was not supported by substantial evidence,
it shall declare it to be of no force and effect, and the zoning ordinance in question shall
be applicable to the use of the property by the local agency." (§ 53096, subd. (b).)
Consistent with the Judgment, the clerk of the court issued a writ of mandate; and
in response, the District and the Board filed a return.
The Judgment does not mention SunPower, other than to identify it as a party that
appeared and was represented during the proceedings in mandate. Since SunPower has
not participated in the appeal, we have no reason to consider whether the City's action
remains pending against it.
11
II. DISCUSSION
On appeal the District challenges the rulings of the trial court on the second cause
of action in which the court granted a writ of mandate, ruling in part that the District's
Solar Project was not exempt from the City's zoning ordinances. According to the
District, the trial court erred by incorrectly interpreting, and thus in failing to apply, both
the absolute exemption in section 53091(e) and the qualified exemption in
section 53096(a). We disagree. As we explain, because the District's Solar Project
includes the transmission of electrical energy, the exemption contained in
section 53091(e) does not apply to the project; and because the administrative record
does not contain substantial evidence to support the Board's finding that there is no
feasible alternative location for the Project Site, the exemption contained in
section 53096(a) does not apply to the project.
A. Standards of Review
In the second cause of action, the City sought both ordinary mandamus (Code Civ.
Proc., § 1085) and administrative mandamus (Code Civ. Proc., § 1094.5) relief.
"Traditional mandate [under Code of Civil Procedure section 1085] lies to challenge an
agency's failure to perform an act required by law"; whereas "[a]dministrative mandate
[under Code of Civil Procedure section 1094.5] applies to challenge the results of an
administrative hearing."10 (Danser v. Public Employees' Retirement System (2015) 240
10 As to traditional or ordinary mandamus: "A writ of mandate may be issued by any
court to any inferior tribunal, corporation, board, or person, to compel the performance of
an act which the law specially enjoins, as a duty resulting from an office, trust, or station,
12
Cal.App.4th 885, 890.) "It is not inconsistent to award relief under both sections 1094.5
and 1085 of the Code of Civil Procedure." (Conlan v. Bonta (2002) 102 Cal.App.4th
745, 752.)
With regard to ordinary mandamus (Code Civ. Proc., § 1085), the City alleged in
the second cause of action: "The District has a plain, clear and ministerial duty to comply
with the City's zoning ordinances and its failure to comply with the City's zoning
ordinances is arbitrary and capricious. The City has no plain, speedy and adequate legal
remedy. Therefore, the City is entitled to a writ of mandate compelling the District to
comply with City's zoning ordinances." With regard to administrative mandamus (Code
Civ. Proc., § 1094.5), the City alleged in the second cause of action: "The absence of
substantial evidence to support the District's findings of infeasibility [under
section 53096(a)] renders its findings arbitrary and capricious." Throughout the
proceedings, the parties and the trial court have, often without explanation, conflated
concepts associated with ordinary mandamus and administrative mandamus.11 Under
or to compel the admission of a party to the use and enjoyment of a right or office to
which the party is entitled, and from which the party is unlawfully precluded by that
inferior tribunal, corporation, board, or person." (Code Civ. Proc., § 1085, subd. (a).)
As to administrative mandamus: "[T]he writ is issued for the purpose of inquiring
into the validity of any final administrative order or decision made as the result of a
proceeding in which by law a hearing is required to be given, evidence is required to be
taken, and discretion in the determination of facts is vested in the inferior tribunal[.]"
(Code Civ. Proc., § 1094.5, subd. (a).)
11 For example, the trial court reviewed the District's administrative decision under
Code of Civil Procedure section 1094.5 without mentioning Code of Civil Procedure
section 1085; the Judgment does not identify the type of mandamus relief the court
awarded, although the Judgment incorporates the court's written ruling based on
section 1094.5; neither the Judgment nor the writ cites a statute, but both direct that, with
13
these circumstances, we will not rely on the labels presented or the statutes cited; instead,
we have considered the substance of the City's challenge to the District's action and the
trial court's handling of the specific challenge. (See Travis v. County of Santa Cruz
(2004) 33 Cal.4th 757, 769, fn. 5 ["where the entitlement to mandate relief has been
adequately pled, 'a trial court may treat a proceeding brought under Code of Civil
Procedure section 1085 as one brought under Code of Civil Procedure section 1094.5' "].)
Accordingly, on the record before us, given the issues, the briefing, and the trial
court's ruling—and, in particular, the City's challenge to the District's resolution
No. 2015-14, in which the Board, in an exercise of its discretion, determined that there
was no feasible alternative to installing the solar farm at any location other than the
Project Site—we will proceed under administrative mandamus, Code of Civil Procedure
section 1094.5.
On review of an administrative mandamus judgment, the inquiry is "whether there
was any prejudicial abuse of discretion." (Code Civ. Proc., § 1094.5, subd. (b).) For
purposes of this analysis in the present appeal, an abuse of discretion is established "if the
[agency] has not proceeded in the manner required by law" (Code Civ. Proc., § 1094.5,
subd. (b)) or "if the court determines that the findings are not supported by substantial
regard to the proposed Solar Project, the District either comply with the City's zoning
ordinances or not proceed with the project; in its appellate briefing, although the District
does not cite either statute, it relies on caselaw involving administrative mandamus relief
(Code Civ. Proc., § 1094.5), including the standard of review; in its appellate briefing, the
City argues for review under the standard applied to ordinary mandamus, citing only
section 1085.
14
evidence in the light of the whole record" (Code Civ. Proc., § 1094.5, subd. (c)).12 " ' "In
[administrative] mandamus actions, the trial court and appellate court perform the same
function" ' "; "we do not 'undertak[e] a review of the trial court's findings or conclusions.
Instead, "we review the matter without reference to the trial court's actions." ' "
(Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1197
(Jefferson Street Ventures).) Appellate review of the agency's factual determinations in
administrative mandamus proceedings is "deferential," and "the agency's findings must
be upheld unless arbitrary, capricious, or entirely lacking evidentiary support." (State Bd.
of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 977.)
" ' "When we interpret a statute, '[o]ur fundamental task . . . is to determine the
Legislature's intent so as to effectuate the law's purpose. We first examine the statutory
language, giving it a plain and commonsense meaning. We do not examine that language
in isolation, but in the context of the statutory framework as a whole in order to
determine its scope and purpose and to harmonize the various parts of the enactment. If
the language is clear, courts must generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the Legislature did not intend. If the
12 In cases not like the present one, where the administrative decision involves
" 'a fundamental vested right,' " a challenge to the substantiality of the evidence in
support of the administrative mandamus findings requires " 'an independent review of the
entire record to determine whether the weight of the evidence supports the administrative
findings. ' " (Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 926.) Here,
neither of the parties suggests, nor does the record contain a basis on which to conclude,
that the District's determinations involved a fundamental vested right. (PMI Mortgage
Ins. Co. v. City of Pacific Grove (1981) 128 Cal.App.3d 724, 729 ["Cases involving
abuse of discretion charges in the area of land use regulation do not involve fundamental
vested rights."].)
15
statutory language permits more than one reasonable interpretation, courts may consider
other aids, such as the statute's purpose, legislative history, and public policy.' " ' " (Meza
v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 856 (Meza).) In construing
a statute, the court is required "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." (Code Civ. Proc., § 1858.) For these reasons,
appellate review of the trial court's interpretation of a statute is de novo. (Flethez v. San
Bernardino County Employees Retirement Assn. (2017) 2 Cal.5th 630, 639 (Flethez)
[administrative mandamus proceedings].)
B. Section 53091(e) Does Not Provide an Exemption From the City's Zoning
Ordinances for the Solar Project
As we introduced ante, section 53091 begins with the presumption that, for
purposes of the Solar Project, the District must comply with the City's zoning ordinances.
(§ 53091, subd. (a).) The District contends that, because the absolute exemption
contained in section 53091(e) applies to the Solar Project, the project is statutorily
exempt from the City's local land use regulations. The City responds by arguing that,
because the exception to the absolute exemption contained in section 53091(e) applies to
the Solar Project, the exemption does not apply, and the District must comply with the
City's zoning ordinances.
"Because statutory language is generally the most reliable indicator of legislative
intent, we start with the language of [the statute to be construed]." (Flethez, supra, 2
16
Cal.5th at p. 640; accord, Holland v. Assessment Appeals Bd. No. 1 (2014) 58 Cal.4th
482, 490 ["the statutory language is generally the most reliable indicator of legislative
intent"].) Section 53091 contains in part the following language:
"(a) Each local agency shall comply with all applicable . . . zoning
ordinances of the . . . city in which the territory of the local agency is
situated. [¶] . . . [¶]
"(e) Zoning ordinances of a . . . city shall not apply to the location
or construction of facilities . . . for the production or generation of
electrical energy . . . . Zoning ordinances of a . . . 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."13
Thus, under section 53091, subdivision (a) provides the rule, and subdivision (e)
provides both an exemption to the rule (on which the District relies) and an exception to
the exemption to the rule (on which the City relies). The rule is that the District, as a
local agency, "shall comply with all applicable . . . zoning ordinances" of the City
(§ 53091, subd. (a)); the exemption is that the City's zoning ordinances do not apply "to
the location or construction of facilities . . . for the production or generation of electrical
energy" (§ 53091(e)); and the exception to the exemption—i.e., resulting in an
application of the rule—is that the City's land use regulations will apply to the proposed
13 " 'Local agency' means 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, a county, a rapid transit district, or a [specific type of] rail transit
district[.]" (§ 53090, subd. (a).) The parties agree that, for purposes of analyzing and
ultimately applying section 53091(e), the District is a "local agency."
The parties also agree that the City's zoning ordinances "make provision for those
facilities" proposed by the District's Solar Project, as required by section 53091(e). At a
minimum, the District's Solar Project qualifies as a "solar farm" for purposes of HMC
section 16.16.063(B), quoted in part in the text at part I.A., ante.
17
facilities if they are "for the storage or transmission of electrical energy by a local
agency, if the [City's] zoning ordinances make provision for those facilities."
(§ 53091(e).)
We proceed, "in accordance with interpretive guidelines," with the understanding
that statutory exemptions, like the first sentence of section 53091(e), must be "narrowly
construed." (City of Lafayette v. East Bay Mun. Utility Dist. (1993) 16 Cal.App.4th 1005,
1018, fn. 12 (Lafayette) [§ 53091(e)]; accord, National City v. Fritz (1949) 33 Cal.2d
635, 636 [statutory exemptions "are to be strictly construed"].) Because the second
sentence of section 53091(e) is an exception to the exemption—i.e., it requires
application of the rule in subdivision (a)—no such limitation is placed on our
construction of the language.
Section 53091 was first enacted in 1959 and has been amended five times, the
most recently in 2002. (Stats. 1959, ch. 2110, § 1, pp. 4907-4908; Stats. 1977, ch. 435,
§ 1, pp. 1467-1468; Stats. 1984, ch. 976, § 1, pp. 3386-3387; Stats. 1997, ch. 580, § 2,
pp. 3554-3555; Stats. 2001, ch. 396, § 1, pp. 3661-3662; Stats. 2002, ch. 267, § 1,
pp. 1111-1112.) To assist us in determining the Legislature's intent in enacting the
current version of section 53091, we will summarize the development of the relevant
language during these 60 years.
The first sentence of section 53091, which now is found in a separate subdivision
(§ 53091, subd. (a)), has not changed. Thus, the starting point for the Legislature's
attempt to deal with the tension between local governments' control over land use
regulation and the state's interest in encouraging local agencies' development of electrical
18
energy has consistently required such agencies to "comply with all applicable . . . zoning
ordinances of the county or city in which the territory of the local agency is situated."
(Stats. 1959, ch. 2110, § 1, p. 4907; Stats. 1977, ch. 435, § 1, p. 1467; Stats. 1984,
ch. 976, § 1, p. 3386; Stats. 1997, ch. 580, § 2, p. 3554; Stats. 2001, ch. 396, § 1, p. 3661;
Stats. 2002, ch. 267, § 1, p. 1111 (§ 53091, subd. (a)).)
The Legislature's approach to a local agency's choices related to the location or
construction of facilities for the production, generation, storage, or production of
electrical energy, however, has changed over the years. In 1959, no local land use
regulations applied; the agencies could locate and construct such facilities as desired
under original section 53091. (Stats. 1959, ch. 2110, § 1, p. 4908.) In 1977, the
Legislature amended the statute to provide an exemption and an exception to the
exemption for specified projects. As relevant here, the 1977 amendments created an
exemption from local zoning ordinances for the location and construction by local
agencies of facilities related to "the production or generation of electrical energy"—
unless the facilities were for "the storage or transmission of electrical energy," in which
event the agencies were required to comply with the local land use regulations.
(Stats. 1977, ch. 435, § 1, p. 1468; Stats. 1984, ch. 976, § 1, p. 3387; Stats. 1997, ch. 580,
§ 2, p. 3555; Stats. 2001, ch. 396, § 1, p. 3662; Stats. 2002, ch. 267, § 1, p. 1112
(§ 53091(e)).)
At all times since its enactment in 1959, section 53091 has also applied to local
agencies' location or construction of facilities for the production, generation, storage, or
transmission of water. (Stats. 1959, ch. 2110, § 1, p. 4908; Stats. 1977, ch. 435, § 1,
19
p. 1468; Stats. 1984, ch. 976, § 1, p. 3387; Stats. 1997, ch. 580, § 2, p. 3555; Stats. 2001,
ch. 396, § 1, p. 3662; Stats. 2002, ch. 267, § 1, p. 1111 (§ 53091).) Indeed, with one
exception, the statute treated local agencies' projects for the development of electrical
energy and of water the same insofar as exempting their proposed facilities from local
land use regulations.14 (Stats. 1959, ch. 2110, § 1, p. 4908; Stats. 1977, ch. 435, § 1,
p. 1468; Stats. 1984, ch. 976, § 1, p. 3387; Stats. 1997, ch. 580, § 2, p. 3555; Stats. 2001,
ch. 396, § 1, p. 3662; Stats. 2002, ch. 267, § 1, pp. 1111-1112 (§ 53091(e)).)
In this latter context (i.e. water facilities), we have the benefit and guidance of
established precedent, which has not been questioned or challenged for more than a
quarter of a century, that sets forth the Legislature's intent in enacting section 53091:
"Section 53091 is part of a statutory scheme—'Regulation of Local
Agencies by Counties and Cities,' sections 53090 through 53095
(Stats. 1959, ch. 2110, § 1, pp. 4907-4909)—enacted in response to
opinions[15] which broadly immunized all state agencies from local
regulatory control. [Citations.] Section 53091 evinces a legislative
intent to vest in cities and counties control over zoning and building
restrictions, thereby strengthening local planning authority. . . . [¶]
. . . When read as a statutory scheme, the obvious intent of the
Legislature was to strike a balance between the value of local zoning
14 The exception is that, with regard to water facilities, storage and transmission are
not treated differently than production and generation. For water facilities, all
development phases are exempt from the application of local zoning. (Stats. 1959,
ch. 2110, § 1, p. 4908; Stats. 1977, ch. 435, § 1, p. 1468; Stats. 1984, ch. 976, § 1,
p. 3387; Stats. 1997, ch. 580, § 2, p. 3555; Stats. 2001, ch. 267, § 1, p. 3662; Stats. 2002,
ch. 267, § 1, pp. 1111-1112 (§ 53091(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"]).)
15 In a footnote at this point, the Lafayette opinion cites Hall v. City of Taft (1956) 47
Cal.2d 177 and Town of Atherton v. Superior Court (1958) 159 Cal.App.2d 417.
20
control by cities and counties and the state interest in efficient
storage and transmission of water. [Citations.] [¶] . . . [¶] . . . The
primary objective of the statutory scheme is to maintain local control
of land use decisions (§ 53091), with carefully specified exceptions
where necessary to further countervailing interests." (Lafayette,
supra, 16 Cal.App.4th at pp. 1013, fn. omitted, 1014, 1017.)
We agree with the Lafayette court's description of the legislative intent in enacting
section 53091 for the location or construction of facilities for the production, generation,
storage, or transmission of water and conclude that the intent is the same where, as here,
the proposed facilities are for the production or generation of electrical energy. For our
purposes, therefore, in enacting the current version of section 53091, the Legislature
intended "to vest in cities and counties control over zoning and building restrictions,
thereby strengthening local planning authority" in order "to strike a balance between the
value of local zoning control by cities and counties and the state interest" in the location
and construction of facilities for the production, generation, storage, and transmission of
electrical energy. (See Lafayette, supra, 16 Cal.App.4th at pp. 1013, 1014.) In short, for
the development of electrical energy by local agencies, the legislative intent is "to
maintain local control of land use decisions . . . with carefully specified exceptions where
necessary to further countervailing interests." (Id. at p. 1017.)
Having considered and determined the Legislative intent in enacting and amending
section 53091(e), we now turn to its application in the present case.
On two grounds, the trial court ruled that the District's Solar Project was not
exempt from the City's zoning ordinances. First, the court declined to apply
section 53091(e)'s exemption because the Solar Project was merely "incidental"—i.e., the
21
proposed facilities were not "integral" or "directly and immediately" related—to the
District's authorized services to provide water and wastewater treatment. Second, the
court concluded that, since a principal purpose of the facilities to be developed was to
export electrical energy to Edison's electrical grid distribution system under the RES-
BCT program, the facilities necessarily included the transmission of electrical energy—to
which the City's zoning ordinances applied, as an exception to the exemption under
section 53091(e).
On appeal, the District initially argues that the nature of its authorized services is
irrelevant to a determination of the potential application of section 53091(e)'s absolute
exemption. The District next argues that, in determining the legislative intent, we should
apply the "plain meaning" to the words in the exemption, but not to the words in the
exception to the exemption; for those words, the District argues, the trial court erred in
applying a "literal interpretation."
In its brief on appeal, the City fully supports the trial court's rulings. First the City
contends that, because the Solar Project is not integral to the District's authorized
operations, the absolute exemption in section 53091(e) does not apply. Next, the City
argues that an application of the " 'usual and ordinary meaning' " or " 'plain meaning' " of
the words in the exception to the absolute exclusion leads to the conclusion that the Solar
Project involves the "transmission of electrical energy by a local agency," therefore
requiring the District to comply with the City's land use regulations.
As we explain, we disagree with the court's first ruling, but agree with the second;
and since the exception to exemption applies, the trial court properly concluded that
22
section 53091(e) did not excuse (i.e., exempt) the District from complying with the City's
zoning ordinances prior to proceeding with the Solar Project.
1. The Exemption in the First Sentence of Section 53091(e)
On appeal, the District persuasively argues that an application of the plain
meaning of the words in the first sentence of section 53091(e) results in an exemption
from the City's zoning ordinances for the District's Solar Project. As applicable to the
project, the first sentence provides: "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." (§ 53091(e).) There is no question—indeed, the City does not
challenge—that the Solar Project involves "the location or construction of facilities . . .
for the production or generation of electrical energy." Thus, as directed by our Supreme
Court under Meza, supra, 6 Cal.5th at page 856, we will give this statutory language "a
plain and commonsense meaning" and follow this meaning, since there is no suggestion
that "a literal interpretation would result in absurd consequences the Legislature did not
intend".
We disagree with the City's argument that, because "the [Solar P]roject is not
integral to the District's authorized operations," section 53091(e) does not apply to the
project. (Some initial capitalization omitted.) In support of its position, which is
consistent with the trial court's ruling, the City relies on Lafayette, supra, 16 Cal.App.4th
1005. In Lafayette, the defendant water district proposed to expand and improve support
facilities at a water filtration plant that treated raw water for delivery to the district's
customers. (Id. at p. 1010.) After the plaintiff City of Lafayette denied the district's
23
application for a use permit for the project, the district declared its project exempt from
the city's zoning and building ordinances under then-applicable former sections 53091
(Stats. 1984, ch. 976, § 1, pp. 3386-3387) and 53096 (Stats. 1977, ch. 435, § 2, p. 1468).
(Lafayette, at pp. 1010-1011.) Like the present case, the city then sued the district,
alleging claims for a writ of administrative mandamus and for injunctive and declaratory
relief. (Id. at p. 1011.) Also like the present case, the issue in Lafayette was whether the
district's proposed project was exempt from the city's land use regulations. (Id. at
p. 1012.)
The Lafayette court declined to apply former section 53091's exemption to the
district's proposed project. The court first concluded that, because the project was for the
construction of "a support facility[,] it does not actually perform the function of
generating, transmitting or storing water"—a requirement for the absolute exemption in
former section 53091. (Lafayette, supra, 16 Cal.App.4th at p. 1014.) Rather, the
Lafayette court contrasted, the water district's project "is a facility for the storage of
materials and equipment necessary for maintenance and repair of aqueducts, pipelines,
[filter] plants and reservoirs"—which is not mentioned in former section 53091.
(Lafayette, at p. 1014.) The court then held that, since "the absolute exemption of
section 53091 was intended to be limited to facilities directly and immediately used to
produce, generate, store or transmit water," the exemption did not apply to the district's
project. (Lafayette, at p. 1014.)
According to the City, Lafayette limits the application of the absolute exemption
in section 53091(e) to agencies "whose purpose is providing water or electricity" and
24
whose projects involve "siting facilities necessary and indispensable to their authorized
functions." In arguing that section 53091(e) does not apply to the Solar Project because
"the project is not integral to the District's authorized operations" (some initial
capitalization omitted), the City focuses on the following facts: The District's purpose is
to provide water and wastewater treatment services, yet the Solar Project will neither
provide such services nor provide electrical energy that will be used directly in providing
such services since the power will be uploaded to Edison's electrical grid. We disagree
with the City's suggested application of Lafayette to the present case.
In Lafayette, the court ruled only that the exemption provided at former
section 53091 did not apply because, as potentially applicable in that case, the exemption
itself is limited to "the location or construction of facilities for the production, generation,
storage, or transmission of water[.]" (Former § 53091, italics added; Stats. 1984,
ch. 976, § 1, p. 3387; italics added.) That is to say, the limitation to the application of
section 53091 in Lafayette is based on the purpose of the proposed facilities,16 not (as
argued by the City) on the purpose of the agency developing the proposed facilities. In
not applying Lafayette in the present case, we do not disagree with it, only with what the
City contends it holds.
16 Like current section 53091(e), at the time of the Lafayette opinion in 1993, the
absolute exemption in former section 53091 also applied to "the location or construction
of facilities . . . for the production or generation of electrical energy[.]" (Former
§ 53091, italics added; Stats. 1984, ch. 976, § 1, p. 3387.)
25
2. The Exception to the Exemption in the Second Sentence of Section 53091(e)
Having concluded 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, we next consider whether the exception to the exemption applies. In this
regard, the subdivision's remaining sentence provides: "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." (§ 53091(e).) Under this exception, therefore, even where an agency's project
is exempt from local zoning (under the first sentence), if the project involves "facilities
for the storage or transmission of electrical energy," then the exemption is inapplicable
(under the second sentence), and the agency must comply with local zoning ordinances
that provide for such facilities.
As we explain, we agree with the trial court's ruling that, because the Solar Project
includes the "transmission of electrical energy," the City's zoning ordinances—which
provide for such facilities (see fn. 13 and related text, ante)—apply to the Solar Project
under section 53091(e).17
Focusing on the plain language of the statute, the trial court considered the
facilities envisioned in the Solar Project in the context of a dictionary definition of
"transmission" and concluded that the project involved the transmission of electrical
energy by a local agency:
17 There is no argument on appeal that the Solar Project involved facilities for
the storage, as opposed to the transmission, of electrical energy.
26
" 'Transmission' is defined as 'an act, process, or instance of
transmitting' and 'something that is transmitted.' Transmit means
'to send or convey from one person or place to another.'
(Merriam-Webster's Collegiate Dictionary (11th ed. 2004) p. 1329.)
"When the [Solar] Project and its purpose are considered, 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. The District will generate electricity and
transfer it to Edison in order to obtain credits to offset the District's
energy consumption by other District facilities." (Italics added.)
Reasoning that the Solar Project involved the transmission of electrical energy, the trial
court concluded that the exception to the exemption applied—and correspondingly ruled
that the absolute exemption in section 53091(e) did not apply.
In our de novo review, we agree that the Solar Project involves the "transmission"
of electrical energy. In particular, we are persuaded by language in the August 2015
generator interconnection agreement between the District and Edison, pursuant to which
the parties agreed that District's energy generating facility would "interconnect with, and
operate in parallel with," Edison's electrical grid distribution system.
The agreement expressly provides that "the basis for the Parties entering into this
Agreement is that [the District] will export electrical energy to the grid" and that, after
generating the electricity, the District will have the responsibility for "making all
necessary arrangements (including scheduling) for delivery of electricity."18 (Italics
added.) In this context, the usual and customary meaning of the word "export" is "to
18 Consistently, Edison's May 2015 System Impact Study on the Solar Project
indicates that the power generated by the District "would be delivered to the [Edison]
system at the [point of change of ownership]." (Italics added.)
27
carry away . . . to transmit or cause the spread of" (Webster's Third New Internat.
Unabridged Dict. (2002) p. 802, col. 2, italics added) or "to send or transmit . . . to
another place" (Random House Unabridged Dict. (2d ed. 1993) p. 682, col. 2, italics
added); the usual and customary meaning of the word "delivery" is the "transfer of the
body or substance of a thing" (Webster's, at p. 597, col. 3, italics added) or "a formal act
performed to make a transfer of property legally effective" (Random House, at p. 528,
col. 1, italics added); and, in both dictionaries, to "transfer" means to "transmit."
(Webster's, at p. 2427, col. 1; Random House, at p. 2009, col. 3.)
On appeal, the District argues against using the plain meaning of the word
"transmission," because, according to the District, such a definition "would prohibit any
electrical energy facility from qualifying for the Absolute Exemption [under
section 53091(e)], as there must always be some mechanism to convey the electrical
energy produced or generated for use."
We are not troubled by the possibility that the absolute exception in
section 53091(e) may never apply to the location or construction of electrical energy
facilities. In the same legislation that first amended section 53091 to include the
exception to the exemption, the Legislature also enacted section 53096(a), which
provides a qualified exemption to a local government's land use regulations under certain
conditions. (Stats. 1977, ch. 435, §§ 1 [§ 53091], 2 [§ 53096], pp. 1467-1469.) Indeed,
in the newly enacted statute, the Legislature expressly dealt with providing an exemption,
albeit qualified, for facilities related to the transmission of electrical energy: At that time,
former section 53096(a) provided that, "[n]otwithstanding [section 53091]," a local
28
agency is authorized to render a city's or county's zoning ordinances inapplicable to any
proposed use of its property—including facilities related to the storage or transmission of
electrical energy—upon a vote of four-fifths of the members of the local agency that
there is no feasible alternative to the proposed use by the agency. (Stats. 1977, ch. 435,
§ 2, p. 1468, italics added.19) Thus, even if—as the District posits without discussion—
the absolute exception in section 53091(e) may never apply to the location or
construction of facilities for the production or generation of electrical energy, the
qualified exception in section 53096(a) is available if four-fifths of the agency's board
determines there is no feasible alternative to the proposed use.
The District presents two arguments as to why it believes the dictionary
definition—i.e., the usual and customary meaning—of "transmission" should not be
applied in this case. Neither is persuasive.
First, the District relies on its understanding that, in the 1977 amendments to
former section 53091, the Legislature removed the prior exemption from local 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
[one specifically identified utility district]."20 Based on this understanding, the District
19 Current section 53096(a) is not substantively different. (Stats. 2002, ch. 267, § 2,
pp. 1112-1113.) We discuss section 53096(a) in greater detail at part II.C., post.
20 The District relies on the Enrolled Bill Report of the Governor's Office of
Planning and Research. An enrolled bill report " 'is prepared by a department or agency
in the executive branch that would be affected by the legislation. Enrolled bill reports are
typically forwarded to the Governor's office [after the Legislature has passed the
29
then argues that, by enacting the legislation that included the exception (for facilities that
store or transmit electrical energy) to the exemption (for facilities that produce or
generate electrical energy), the Legislature "intended to cover large transmission lines or
poles transmitting energy to customers, not any form of transmitting electrical energy to
the grid." (Italics added.) We disagree. The fact that a legislator's constituents may have
complained about the placement of large transmission poles is not indication of a
legislative intent to limit the application of the legislation to large poles. We do not infer
legislative intent from a statement made by a non-legislator after passage of the
legislation (see fn. 20, ante). (Haworth v. Lira (1991) 232 Cal.App.3d 1362, 1369
[post-enactment statement by a person who was not a member of the Legislature "is
entitled to virtually no weight"].) In any event, the District's objection is not to the trial
court's use of the plain meaning of the word "transmission"; the District's objection is that
the trial court did not infer a legislative intent to limit the application of the plain meaning
of the word to instances where the transmission was effected by large lines or poles.
There is no basis on which to infer such an intent, since the Legislature could have
included such limiting language if that was its intent.
Second, the District argues that its Solar Project does "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 [Edison] distribution system under the
legislation and] before the Governor decides whether to sign the enrolled bill.' " (In re
Lucas (2012) 53 Cal.4th 839, 856, fn. 13.) Based on its date and contents, this appears to
be the case with the enrolled bill report on which the District relies; it was prepared by a
staff member and signed by the deputy director of the Office of Planning and Research.
30
Interconnection Agreement and the RES-BCT Program." The District relies on Public
Utilities Code section 2830, which applies to RES-BCT programs like Edison's and
provides at subdivision (b) that, for purposes of the interconnection agreement between
Edison and the District, the District may only participate if nine specified conditions are
met. One of these requirements is that "[a]ll costs associated with interconnection are the
responsibility of the [District]"; and "[f]or purposes of this paragraph, 'interconnection'
has the same meaning as defined in [Public Utilities Code] Section 2803 . . . ."21 (Pub.
Util. Code, § 2830, subd. (b)(6).) As they apply to the Solar Project, however, Public
Utilities Code sections 2830, subdivision (b)(6), and 2803 tell us only that:
"Interconnection" means the facilities necessary to connect the District's facilities for
producing or generating energy with "the existing transmission facilities" of Edison; and
the District is responsible for the costs associated with this interconnection. Edison's
"existing transmission facilities" are irrelevant to a consideration whether the Solar
Project will involve the District's "transmission of electrical energy." Stated more
generally, those two statutes in the Public Utilities Code—and, in particular, their use of
the word "interconnection"—do nothing to assist in providing either a definition of, or the
legislative intent in using, the word "transmission" for purposes of applying Government
Code section 53091(e)'s exception to the exemption to local zoning ordinances to
21 Public Utilities Code section 2803 provides in full: " 'Interconnection' means the
facilities necessary to physically connect the energy source of and the point of use by a
private energy producer 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."
31
facilities for the "transmission of electrical energy" in the production or generation of
electrical energy. (See Freitas v. County of Contra Costa (1994) 28 Cal.App.4th 163,
172 [cannot rely on meaning of a word in one statutory scheme for purposes of
determining the meaning of the same word in a different, even if related, statutory
scheme—especially when found in different codes]; Union Iron Works v. Industrial
Accident Com. of California (1922) 190 Cal. 33, 43 ["The fact that a word or phrase is
common to both statutes will not suffice to make those decisions [under one statute] a
controlling criterion for the construction of the statute before us."].)
Since the energy generated by the Solar Project would, according to the District,
"flow through the meter at the interconnection facilities to the existing [Edison]
distribution system," we have little difficulty concluding that this "flow" is a
"transmission" under the plain meaning of the word "transmission." Moreover, since, as
the District acknowledges, the Solar Project "requires the installation of approximately
250 feet of underground cable for interconnection to [Edison's] facilities," we also have
little difficulty concluding that, because cable is necessary for "interconnection to
[Edison's] facilities," the project involves the "transmission of electrical energy" for
purposes of the exception to the exemption in section 53091(e).22
22 We reject any suggestion that there is no transmission of electrical energy because,
in the District's words, "only . . . approximately 250" feet of cable is required for
interconnection. (Italics added.) Section 53091(e) does not contain any distance
limitation, and the District does not explain why we should infer one.
32
In conclusion, the plain meaning of "transmission" is to send or export, and there
is no basis on which to conclude that, in using the word "transmission" in
section 53091(e), the Legislature meant anything else.
For the foregoing reasons, the District did not meet its burden of establishing that
the trial court erred in ruling that, for purposes of the proposed Solar Project,
section 53091(e) does not provide the District with an absolute exemption from
complying with the City's zoning ordinances. We next consider whether, as the District
also contends, section 53096(a) provides a qualified exemption for the Solar Project.
C. Section 53096(a) Does Not Provide an Exemption from the City's Zoning
Ordinances for the Solar Project
Even where a local agency is unable to take advantage of the absolute exemption
in section 53091(e) from complying with local land use regulations, section 53096(a)
provides a qualified exemption for a local agency's proposed use of property for facilities
"related to" the storage or transmission of electrical energy:
"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 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." (§ 53096(a), italics added.)
"Parsing the double negative [in the second sentence], this says a local agency may
render a zoning ordinance inapplicable to facilities 'related to' the storage or transmission
33
of [electrical energy]" upon the requisite showing and approval by four-fifths of the
agency's board. (Delta Wetlands Properties v. County of San Joaquin (2004) 121
Cal.App.4th 128, 140.) As defined for purposes of section 53096(a), "feasible" means
"capable of being accomplished in a successful manner within a reasonable period of
time, taking into account economic, environmental, social, and technological factors."
(§ 53096, subd. (c).)
Here, in compliance with section 53096(a)'s procedural requirements, the Board
found and determined as follows in resolution No. 2015-14:
"3. . . . The District does not own any other property that has the
acreage and necessary components for a successful solar project due
to terrain, trees, and weather conditions. Further, in order to comply
with the City's solar ordinance, the District would have to redesign
and relocate the Project away from the nearest residentially
designated property, which would include the installation of
additional AC conductor between the solar array and the Point of
Interconnection [with Edison's grid]. This would result in a
significant cost increase, measurable power loss, and project delay.
"4. Thus, the Board finds it is not feasible to install the solar
photovoltaic system at any other locations other than the [Project
Site].
"5. Based on the above-findings, the Board finds and determines
that pursuant to Government Code section 53096, there is no feasible
alternative to the location of the [Solar] Project at the Hesperia
Farms site, by four-fifths vote of the Board, City of Hesperia zoning
ordinances, including but not limited to, City of Hesperia Ordinance
No. 2012-07, are rendered inapplicable to the Project. (Sic.)"
34
As we explain, we agree with the trial court's ruling that the administrative record does
not contain substantial evidence to support the District's finding that there is no feasible
alternative to installing the solar farm at any location other than the Project Site.23
As we introduced ante, however, because this is an appeal from the trial court's
grant of an administrative writ of mandate under Code of Civil Procedure section 1094.5,
"we do not 'undertak[e] a review of the trial court's findings or conclusions. Instead, "we
review the matter without reference to the trial court's actions." ' " (Jefferson Street
Ventures, supra, 236 Cal.App.4th at p. 1197.) That is because " '[o]ur function is
identical to that of the trial court, as we too must determine whether substantial evidence
supports the administrative decision.' " (Hoitt v. Department of Rehabilitation (2012)
207 Cal.App.4th 513, 521; accord, Schafer v. City of Los Angeles (2015) 237 Cal.App.4th
1250, 1261 [appellate court applies the same standard of review as trial court].) " 'The
reviewing court, like the trial court, may not reweigh the evidence, and is "bound to
consider the facts in the light most favorable to the Board, giving it every reasonable
23 We note a discrepancy between what the statute requires for an application of the
exemption and what the Board resolved. Whereas section 53096(a) requires a resolution
that "there is no feasible alternative to [the local agency's] proposal," here the Board
resolved that "there is no feasible alternative to the location of the [Solar] Project." (All
italics added.) We requested and received supplemental briefing from the parties as to
the potential effect of the difference between feasible alternatives to the proposal (here,
the Solar Project) and feasible alternatives merely to the location of the proposed project
(here, the Project Site). The District and the City agree that the difference is irrelevant
for purposes of the appeal; i.e., the parties agree that the District's resolution No. 2015-14
complies with section 53096(a). Accordingly, without deciding whether the feasibility of
the local agency's proposal includes more than the location of the project, we will
assume that the Board's resolution here is statutorily compliant, and we will proceed with
explaining how, in passing resolution No. 2015-14, the District prejudicially abused its
discretion.
35
inference and resolving all conflicts in its favor." ' " (Hoitt, at p. 522; accord, Auburn
Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121
Cal.App.4th 1578, 1583.) There is a presumption that the agency's findings are supported
by substantial evidence; and since the party challenging those findings has the burden of
demonstrating otherwise, here the City must establish that the administrative record does
not contain substantial evidence to support the Board's finding that there is no feasible
alternative to the Project Site. (Schutte & Koerting, Inc. v. Regional Water Quality
Control Bd. (2007) 158 Cal.App.4th 1373, 1384.)
As difficult as it is to prove a negative—namely, that the record does not contain
substantial evidence—the City succeeded here, by establishing that, because the
administrative record does not contain any evidence of an alternative location for the
Solar Project (or evidence that no alternative exists), the record necessarily does not
contain any evidence of economic, environmental, social, or technological factors
associated with an alternative location. As we explain, by failing to base its exercise of
discretion on consideration of 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" is not supported by substantial evidence. (Italics added.) With that
determinative finding unsupported by substantial evidence, the District's resolution to
render the City's zoning ordinances inapplicable to the Solar Project is a prejudicial abuse
of discretion for purposes of Code of Civil Procedure section 1094.5, subdivision (b).
Before deciding that the qualified exemption of section 53096(a) applies to a
proposed project, the local agency must establish, inter alia, that "there is no feasible
36
alternative to its proposal." (§ 53096(a).) In the present case that means there is no
alternative location for successfully accomplishing the Solar Project "within a reasonable
period of time, taking into account economic, environmental, social, and technological
factors." (§ 53096(c).) Although our research has not located authority that has applied
section 53096(c)'s definition of "feasible" for purposes of section 53096(a)'s qualified
exemption, we find guidance in CEQA's application of the identical definition in the
Public Resources Code.24
Under CEQA, "the policy of the state [is] 'that public agencies should not approve
projects as proposed if there are feasible alternatives or feasible mitigation measures
available which would substantially lessen the significant environmental effects of such
projects. . . .' ([Pub. Resources Code, ]§ 21002.)" (Uphold Our Heritage v. Town of
Woodside (2007) 147 Cal.App.4th 587, 597, italics added.) "In furtherance of this policy,
[Public Resources Code] section 21081, subdivision (a), 'contains a "substantive
mandate" requiring public agencies to refrain from approving projects with significant
24 CEQA contains a set of definitions to be applied throughout the statutory scheme.
(Pub. Resources Code, § 21060 et seq.) " 'Feasible' means capable of being
accomplished in a successful manner within a reasonable period of time, taking into
account economic, environmental, social, and technological factors." (Pub. Resources
Code, § 21061.1.)
"We presume that the Legislature is aware of laws in existence when it enacts a
statute." (Meza, supra, 6 Cal.5th at pp. 862-863.) In this regard, the Legislature enacted
the definition of "feasible" under CEQA in 1976 (Pub. Resources Code, § 21061.1;
Stats. 1976, ch. 1312, § 5.1, p. 5891); and, using the same language a year later in 1977,
the Legislature enacted the definition of "feasible" under the qualified exemption to local
zoning regulation (former § 53096(c); Stats. 1977, ch. 435, § 2, p. 1469). Thus, we
presume the Legislature intended that "feasible" be applied the same for purposes of local
land use regulations under both CEQA and the qualified exemption in section 53096(a).
37
environmental effects if "there are feasible alternatives or mitigation measures" that can
substantially lessen or avoid those effects.' " (Uphold Our Heritage, at p. 597, italics
added; see Sustainability, Parks, Recycling & Wildlife Legal Defense Fund v. San
Francisco Bay Conservation & Development Com. (2014) 226 Cal.App.4th 905, 917,
italics added ["Under CEQA, governments are to choose 'feasible' alternatives"].)
In Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167,
for example, since the CEQA-required environment impact report for a proposed hotel
development omitted consideration of whether there was a feasible alternative site, the
agency's approval of the report was "a prejudicial abuse of discretion." (Id. at p. 1180.)
The developer argued that, "because it owns the [proposed hotel] site and no other
feasible site in the general area, it would be unreasonable to require consideration of
another site as an alternative."25 (Id. at p. 1179.) The Court of Appeal disagreed. Given
the statutory definition of "feasible" and the developer's lack of evidence as to any other
site, the court concluded that there was no substantial evidence to support the developer's
statement in its environmental impact report that there were no feasible alternative
locations: "Consideration of alternatives is required . . . . The range of alternatives is
governed by the 'rule of reason,' which requires only an analysis of those alternatives
necessary to permit a reasoned choice. An [environment impact report] need not consider
25 In this regard, the District relies on its finding, as part of resolution No. 2015-14
(in which it found no feasible alternative to the Project Site), "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." We note
that the District does not provide a record reference for substantial evidence in support of
this finding/determination.
38
an alternative, the effect of which cannot be reasonably ascertained and the
implementation of which is remote and speculative." (Id. at pp. 1177-1178.)
Likewise, here, any "rule of reason" requires consideration of alternatives. That is
because, in addition to the proposal from SunPower to develop the Solar Project at the far
southern end of the Hesperia Farms property, the Board also looked into and considered
proposals from two other solar providers that would have placed the solar farm at an
alternative location on the northern portion of the District's Hesperia Farms property.
With this knowledge, the issue becomes, at a minimum, whether the administrative
record contains substantial evidence to support the District's finding that the northern
location was not a feasible alternative.26
The City argues that an alternative location must be considered before a finding
can be made that "there is no feasible alternative to the location of the [Solar] Project at
the Hesperia Farms site" for purposes of section 53096(a). (Italics added.) The District
responds by telling us that the following two documents in the administrative record
contain "substantial evidence supporting the District's determination that there was no
feasible alternative to locating the Solar Project on the Hesperia Farms Property":
(1) a September 2014 "Water Supply, Wastewater and Alternative Energy Supply Study"
(Study) by the United States Department of the Interior Bureau of Reclamation; and
26 Consistent with Citizens of Goleta Valley v. Board of Supervisors, supra, 197
Cal.App.3d 1167, we do not propose "an inflexible rule that the availability of other sites
always must be considered or that it never need be considered. Situations differ; what is
reasonable in one case may be unreasonable in another. It is necessary to examine the
particular situation presented to determine whether the availability of other feasible sites
must be considered." (Id. at p. 1179.)
39
(2) SunPower's June 2015 "Lake Arrowhead CSD Solar Project Proposal" (Proposal). As
we explain, because neither document contains evidence of alternatives (or evidence that
no alternative exists), neither document supports the District's statement.
First, the District directs our attention to one paragraph, entitled "Solar Power," of
the Bureau of Reclamation's 748-page Study, where the Study cites "an [April 2012]
evaluation of the Hesperia [Farms property]" by SunPower, a copy of which is included
as an exhibit to the Study.27 According to the Study, the SunPower evaluation "indicates
that the District's [Hesperia Farms] property is a prime location for solar development."
The Study also indicates that SunPower's evaluation "detailed" the "[c]apital costs, utility
inflation, photovoltaic degradation, etc." associated with the Solar Project.
Second, the District relies on two sentences of SunPower's 65-page June 2014
Proposal, in which SunPower describes the Project Site "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."
At best, this evidence supports a finding that the Project Site is a good location for
the Solar Project; however, that is not the finding at issue for purposes of
section 53096(a). For section 53096(a)'s qualified exemption to apply, section 53096(c)'s
definition of "feasible" requires the necessary finding to be there is no alternative to the
agency's proposal that is "capable of being accomplished in a successful manner within a
27 The City contends that what the District describes as "an evaluation" by SunPower
is "little more than an advertising brochure for SunPower's solar panels and lacks any
specific analysis of the District's Hesperia Farms Property."
40
reasonable period of time"; and that necessary finding must be supported by substantial
evidence of the "economic, environmental, social, and technological factors." The above-
described evidence cited to us by the District does not mention, let alone "tak[e] into
account" the feasibility factors associated with any alternative location, as required by
section 53096(c).28
In addition, the District directs our attention to another portion of the June 2014
Proposal, where, according to the District, "SunPower agreed to a performance guarantee,
which is impacted by the location of the site."29 Initially, the Proposal is not an
agreement, but rather, as its title suggests, a proposal. In any event, the existence of a
28 Elsewhere in its briefing, the District refers us to evidence from June 2014
meeting of the District's Solar Power Alternatives Ad Hoc Committee. The District relies
on evidence from a solar vendor other than SunPower related to a potential location in the
northern, rather than southern, portion of the Hesperia Farms property. The District then
tells us that it selected the southern, rather than the northern, portion of the property
"because of" this evidence from the other solar provider. However, this evidence is from
the solar vendor's analysis and presentation that "the northern site would actually be
better" and "we want to be as far north on the property as possible." More significantly,
at the December 2015 meeting during which the Board adopted resolution No. 2015-14,
there is no indication of what the Board considered or did in the context of how, if at all,
the evidence from the other solar vendor (or otherwise) supported a finding that there was
no feasible alternative to the District's proposed Solar Project—i.e., no consideration of
how, as required by section 53096, the Board took into account the four feasibility factors
in determining that a development at any other alternative location was not "capable of
being accomplished in a successful manner within a reasonable period of time."
29 The Proposal describes the performance guarantee as follows: "SunPower offers a
comprehensive, weather-adjusted energy guarantee, also referred to as 'Performance
Guarantee' or 'PeGu'. Under the PeGu, SunPower will reimburse the District during the
year of underperformance at a rate largely equivalent to the expected avoided utility cost
in that year. [¶] . . . All factors within the PeGu are negotiable. [¶] . . . [¶] Longer
terms and alternative coverage rates are available for District consideration."
41
performance guarantee from SunPower—even if we assume the guarantee is "impacted
by the location of the site"—is not evidence that there is no other location (feasible or
otherwise) for the development of a solar energy farm on the District's Hesperia Farms
property. Without consideration of any alternative location and its economic,
environmental, social, and technological factors (or evidence that no alternative exists),
SunPower's proposal of a performance guarantee cannot substantiate a finding that there
is no feasible alternative to the Project Site as required by section 53096(a).
Finally, in its reply brief on appeal, as additional support of its position that the
Hesperia Farms property does not provide a feasible alternative location, the District asks
this court to take judicial notice of four documents not included in either the
administrative record or the register of actions. Two of the documents are dated in
January 2018, and two are dated in March 2018—which is more than a year after the
nunc pro tunc date for entry of the Judgment. The City opposes the District's request. As
we explain, we deny the District's motion for judicial notice and disregard the related
argument in the District's reply brief.
In general, the rules on judicial notice that apply in civil cases (see Evid. Code,
§§ 450-460) apply in administrative mandamus proceedings. (Evid. Code, § 300; Mack
v. State Bd. of Education (1964) 224 Cal.App.2d 370, 372-375 [trial court proceedings].)
However, with narrow exceptions inapplicable here,30 our inquiry under Code of Civil
30 "Where the court finds that there is relevant evidence that, in the exercise of
reasonable diligence, could not have been produced or that was improperly excluded at
the hearing before respondent, it may enter judgment as provided in subdivision (f)
42
Procedure section 1094.5 is limited to the administrative record made before the agency.
(Paoli v. California Coastal Com. (1986) 178 Cal.App.3d 544, 551; see Topanga Assn.
for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515.) This is
consistent with the general rule that "[r]eviewing courts generally do not take judicial
notice of evidence not presented to the trial court. Rather, normally 'when reviewing the
correctness of a trial court's judgment, an appellate court will consider only matters
which were part of the record at the time the judgment was entered.' " (Vons Companies,
Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
D. Conclusion
Under section 53091(e), for the Solar Project to be exempt from the City's zoning
ordinances, the District was required to establish that "the location or construction of
facilities" for its Solar Project both involved "the production or generation of electrical
energy" and did not involve "the storage or transmission of electrical energy." Because
the District's proposed facilities involved the transmission of electrical energy, the
District did not meet its burden of establishing that the absolute exemption contained in
section 53091(e) applied to the Solar Project.
Even where proposed facilities, like the District's Solar Project, "relate[] to" the
transmission of electrical energy, section 53096(a) allows an exemption from local land
use regulation upon a specified showing—which includes a resolution (by a vote of
remanding the case to be reconsidered in the light of that evidence; or, in cases in which
the court is authorized by law to exercise its independent judgment on the evidence, the
court may admit the evidence at the hearing on the writ without remanding the case."
(Code Civ. Proc., § 1094.5, subd. (e).)
43
four-fifths of the local agency's members) "that there is no feasible alternative to [the
agency's] proposal" in light of the four feasibility factors set forth in section 53096,
subdivision (c). Although the Board resolved as statutorily required, the administrative
record does not contain substantial evidence in support of the Board's finding that
underlies the resolution—namely, that "there is no feasible alternative to the location of
the [Solar] Project at the Hesperia Farms site." Without substantial evidence to support
the key finding necessary for the Board's vote, the District's resolution to render the City's
zoning ordinances inapplicable to the Solar Project is a prejudicial abuse of discretion
and cannot stand.
On the present record, in order for the District to have properly determined that
"there is no feasible alternative" to the proposed location of the Solar Project for purposes
of section 53096(a), the District was required to have: (1) considered alternative
locations; (2) taken into account economic, environment, social, and technological factors
associated with both the Project Site and the alternative locations; and (3) determined—
i.e., exercised discretion based on substantial evidence in the administrative record—that,
at the alternative locations, the proposal was not capable of being accomplished in a
successful manner within a reasonable period of time.
For the foregoing reasons, neither section 53091(e) nor section 53096(a) provides
an exemption from the City's zoning ordinances for the Solar Project. Accordingly, 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.
44
III. DISPOSITION
The February 2017 Judgment is affirmed. The City is entitled to its costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
IRION, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
45