Public Interest in Renewable Energy May Outweigh the Purpose of the Williamson Act; Cancellation of Williamson Act Contracts May Constitute Project Approval Under CEQA

After a Central Valley county cancelled Williamson Act contracts on ranchland to make way for a solar energy plant, several environmental groups sued challenging the County’s decision.  The trial court found against the environmental groups.  The county and trial court decisions were upheld on appeal.  The Sixth District Court of Appeal concluded that substantial evidence supported the finding that the public interest in renewable energy outweighed the Williamson Act’s public policy goal of preserving agriculture, particularly since the project incorporated mitigation measures to reduce impacts on agriculture.  (Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503).

Facts

In 2009, several companies applied to San Benito County (“County”) for a conditional use permit to build a 420 megawatt solar plant composed of photovoltaic panels on a 4,885-acre site in a rural area west of Interstate 5.  The companies involved were Solargen Energy, Inc., Solargen Energy DE, PV2 Energy, LLC, PF2 Energy Holdings, LLC, and Nevo Energy, Inc. (collectively, “Solargen”).  The existing primary use of the project site was cattle grazing, with some cultivation of field crops in earlier decades when water was more plentiful and of better quality. 

Much of the site was covered by Williamson Act contracts.  The Williamson Act preserves agricultural use of lands in the state by offering tax breaks to owners who commit to a renewable decade-long contract to farm or ranch on their property.  Solargen initially requested that the County find that the project was compatible with the Williamson Act as provided in the county code.  That request was denied by the County Agricultural Preserve Advisory Committee (APAC), which found that maintaining the contracts under the project would not be compatible with the Williamson Act because the project would compromise long-term agricultural productivity of the land.  Next, Solargen asked the County to cancel Williamson Act contracts on the site and nearby lands on the grounds that other public interests outweighed the policies of the Williamson Act.

After circulation of an Environmental Impact Report (“EIR”) and EIR revisions in response to public comments, the County Board of Supervisors (“Board”) certified the EIR, approved the Williamson Act contract cancellations, and made other approvals and findings allowing the project to go forward.  Several organizations, Save Panoche Valley, Santa Clara Valley Audubon Society, and Sierra Club (collectively, “Save Panoche Valley”) filed suit, claiming violations of the Williamson Act and the California Environmental Quality Act (“CEQA”).  The trial court denied their petition for writ of mandate, upholding the County’s cancellation of the Williamson Act contracts and the certification of the EIR.  Save Panoche Valley appealed.

Decision

The Sixth District Court of Appeal affirmed the trial court judgment.

Regarding the County’s cancellation of the Williamson Act Contracts, the appellate court found that substantial evidence in the administrative record supported the County’s determination that the Act’s purposes were outweighed by the public interest in renewable energy.  The court noted that when the legislature passed the Global Warming Solutions Act (AB 32) in 2006, it included legislative findings that renewable energy was necessary to reduce global warming impacts on the state’s environment, public health, and natural and economic resources.  The court also observed that agricultural activity would continue on the property, conservation easements requiring grazing would remain in place, and Solargen was required to remove equipment and restore the property to agricultural use after the project’s termination.

The appellate court rejected Save Panoche Valley’s argument that the County violated the Williamson Act because there was a proximate, non-contracted site available as an alternate.  The appellate court explained that the term “proximate” in the Williamson Act included lands up to 7.5 miles away from a site.  In contrast, the alternate site advocated by Save Panoche Valley was 60 miles away.  Moreover, it too was covered by Williamson Act contracts, was located in two different counties, and was the subject of prior unsuccessful negotiations with Solargen.  

For similar reasons, the appellate court also turned aside Save Panoche Valley’s contention that the County’s rejection of the alternate site violated CEQA.  The alternate property was located straddling two other counties that might not have approved the project.  Moving the project to those other counties would undermine San Benito County’s public policy goal of creating jobs and economic benefits for its own residents.  The alternate also failed to meet project objectives because developing that site would delay the project. 

The appellate court did not look favorably upon Save Panoche Valley’s numerous arguments that the County violated CEQA because the EIR’s analysis of biological impacts was deficient.  The site and surrounding vicinity was a haven for various animal and bird species, including several endangered ones:  the San Joaquin kit fox, giant kangaroo rat, and the blunt-nosed leopard lizard.  Save Panoche Valley argued that a Department of Fish and Game letter stating that the project would result in an unlawful “take” (capturing or killing) of the blunt-nosed leopard lizard showed that mitigation was deficient.  The court responded that the DFG’s statement was equivocal, and the EIR addressed DFG’s concerns by incorporating a lizard survey and an increased buffer zone as mitigation measures to lessen impacts on the species.

The court of appeal disagreed with Save Panoche Valley’s assertion that the EIR improperly deferred mitigation measures to protect species because precise aspects of several measures would not be fixed until after surveys by a biologist.  The court found that these measures constituted permissible deferral under CEQA because they were not “loose or open-ended.”  The measures specified that if the protected species were found, particular actions would be taken, including setting up buffer zones, relocating individuals, and maintaining monitoring, all aimed at maintaining specific benchmarks.  The court stated that what would be impermissible is that if the mitigation measures called for surveys, and then prescribed that the measures simply adopt the recommended actions of the survey providers.

The appellate court rejected Save Panoche Valley’s argument that a DFG letter criticizing mitigation measures established that mitigation was inadequate for the giant kangaroo rat and San Joaquin kit fox.  The court pointed out that Save Panoche Valley failed to meet its evidentiary burden by just presenting the letter.  Instead, Save Panoche Valley should have also identified the evidence in the record that the Board did rely on and show why it was lacking.  The court stated that mere disagreement by DFG or Save Panoche Valley did not prove a CEQA violation, if other sufficient substantial evidence supported the Board’s findings.

Save Panoche Valley’s contention that the project’s mitigation land was unsuitable failed to move the court of appeal.  The court pointed to evidence in the record that the land had high habitat value for several species, that scat–sniffing dogs had identified the presence of San Joaquin kit foxes, biological surveys found numerous species on the land, and the U.S. Fish and Wildlife Service had identified the land as an important species recovery area.  Furthermore, Solargen had committed to placing conservation easements on the land to protect its conservation potential in perpetuity.  The court also brushed aside the argument that mitigation ratios were inadequate, concluding that the evidence supported the Board’s findings that impacts on biological resources were mitigated to a less than significant level.

Turning to Save Panoche Valley’s criticism of the EIR’s agricultural impact analysis, the court stated that no legal authority supported the argument that mitigation should have created additional agricultural lands to offset those used by the project.  The court stated that the goal of mitigation in CEQA was “not to net out the impact of a proposed project, but to reduce the impact to insignificant levels.”  The court pointed to evidence supporting the adequacy of the mitigation, such as conservation easements, agricultural restoration measures, the introduction of sheep grazing during the project, and Solargen’s commitment to dismantle the project once it shut down.

Finally, the appellate court rejected Save Panoche Valley’s assertion that the Board’s findings were improper and a legal impossibility because the Board made its Statement of Overriding Considerations before the project approval.  The court found that CEQA broadly defines project “approval” as occurring when a public agency commits “to a definite course of action” regarding a project.  The court observed that the Board cancelled the Williamson Act contracts before it made its findings, and that cancellation of the Williamson Act contracts was tantamount to a project approval because it committed the Board to a particular course of action.

Topics:  CEQA, Energy, Energy Policy, Environmental Impact Report, Farms, Renewable Energy, Williamson Act

Published In: Agriculture Updates, Energy & Utilities Updates, Environmental Updates, Commercial Real Estate Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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