Litigation & Case Law Update

• Publication year: 2019
• Author: By Katherine Cook and Bonnie C. Maly

Litigation & Case Law Update

By Katherine Cook and Bonnie C. Maly

Katherine Cook is an Attorney with the California High-Speed Rail Authority.

Bonnie C. Maly is CEB's liaison to the Public Law Section's Executive Committee.

LAND USE / ZONING

City of Hesperia v Lake Arrowhead Community Services District (2019) 37 Cal.App.5th 734.

Proposed solar energy projects will not be exempt from local zoning ordinances if they transmit electrical energy (as opposed to just producing and storing the energy), or if the proponent fails to provide evidence that no feasible alternative locations exist.

In this zoning case, the Fourth District Court of Appeal held that a local public district proposing a solar energy project must comply with the zoning ordinances of the city in which the project is to be developed because the project is not exempt from the ordinances under either Government Code sections 53091(e) or 53096(a).

In City of Hesperia, the defendant local district adopted a resolution that its proposed solar energy project was (1) absolutely exempt from the city's zoning ordinances under Government Code section 53091(e) because the project generated electrical energy, and (2) qualifiedly exempt under Government Code section 53096(a) because there was no feasible alternative to the proposed location of the project. The plaintiff, City of Hesperia, successfully challenged the district's resolution in the trial court. The trial court issued a judgment in favor of the city and a related writ of mandate under Code of Civil Procedure section 1094.5 directing the district and its board to comply with the city's zoning ordinance before beginning the project; the Fourth District Court of Appeal affirmed.

Under Government Code section 53091(e), an agency's project involving "the production or generation of electrical energy" may be exempt from local zoning. But under the second sentence of section 53091(e), if the project involves "facilities for the storage or transmission of electrical energy," the exemption does not apply and the agency must comply with local zoning ordinances. Under the agreement between the district and the utility company, the district committed to "export electrical energy to the grid" and to be responsible for the "delivery of electricity." Under a standard dictionary definition, the district's proposed project included the transmission of electrical energy, thus the absolute exemption contained in Government Code section 53091(e) did not apply to the...