Save North Livermore Valley v. County of Alameda CA1/5

Filed 8/9/23 Save North Livermore Valley v. County of Alameda CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
SAVE NORTH LIVERMORE
VALLEY et al.,
Plaintiffs and Appellants,
v. A165768
COUNTY OF ALAMEDA,
Defendant and Respondent; (Alameda County
INTERSECT POWER, LLC, et al., Super. Ct. No. RG21095386)
Real Parties in Interest and
Respondents.
Save North Livermore Valley, a private group of concerned citizens,
and the Ohlone Audubon Society (collectively, plaintiffs) appeal from a
judgment denying a petition for writ of mandate against the County of
Alameda and real parties in interest, Intersect Power, LLC, and
IP Aramis, LLC (collectively, defendants). Plaintiffs seek to set aside the
county’s decisions to approve the Aramis Solar Energy Generation and
Storage Project (Project) and to certify a final environmental impact report
(FEIR) under the California Environmental Quality Act (CEQA)
1
(Pub. Resources Code, § 21000 et seq.).1 They contend that the county failed
to make a finding supported by substantial evidence that the Project was
consistent with the county’s general plan and local zoning laws and that the
FEIR failed to adequately analyze the Project’s long-term water needs and
wildfire risks under CEQA. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Project
The Project is a solar energy facility (SEF) which is to include
approximately 267,000 solar panels, a substation and generation intertie line,
interconnection facilities, operation and maintenance buildings, a battery
energy storage system, roadways and other facilities, and concomitant
agricultural uses, including sheep grazing and honeybee forage. The Project
would provide solar power to utility customers by interconnecting to the
regional electrical grid at an adjacent Pacific Gas and Electric Company
(PG&E) existing substation. The Project site is 347 acres of undeveloped
land in the unincorporated North Livermore area of Alameda County,
approximately 2.25 miles north of the City of Livermore and I-580. The
Project site is bound by Manning Road to the north, North Livermore Avenue
to the east, and a private driveway to the south. The original proposed
Project encompassed land designated by the county general plan as large
parcel agriculture (LPA), water management (WM), and resource
management (RM). Most of the Project site is designated as LPA. Twenty-
one acres are a part of a 400-foot-wide corridor along Cayetano Creek that is
1 Unless otherwise stated, all statutory references are to the Public
Resources Code. Subsequent references to “Guidelines” are to the State
CEQA Guidelines found in the California Code of Regulations, title 14,
section 15000 et seq.
2
designated as WM. The entire Project site is in the A (agricultural) zoning
district.
II. Project Approval
In 2018, real parties applied for a conditional use permit (CUP). A
draft environmental impact report (DEIR) was prepared and circulated for
public review between September 18, 2020, and November 2, 2020. The
DEIR addressed the environmental impacts of the Project and considered
proposed project alternatives, including the resource management avoidance
(RMA) alternative, which would decrease the size of the Project and avoid
using any of the RM area.
The East County Board of Zoning Adjustments (EBZA) held meetings
on the Project in May, October, and November 2020. The EBZA heard from
planning staff and the public. The planning staff’s report found that the
initial Project was consistent with the LPA and WM general plan
designations but inconsistent with the RM general plan designation. It
recommended that the EBZA approve the RMA alternative and find the
Project consistent with the county’s general plan and zoning ordinance. The
planning staff’s report explained that staff interpreted the general plan to
allow new infrastructure, along with public and quasi-public facilities, in the
LPA and WM land use categories and found that solar development is
comparable to other uses specifically allowed in the LPA and WM categories.
The report also explained that the Project was consistent with several county
policies,2 including policy 218, which allows development of public facilities,
and policy 13, which permits new infrastructure, defined to include public
2 The Alameda County East County Area Plan (ECAP) explains that
the county adopted goals, policies, and programs which were modified over
time. It defines “policies” as “focused statements of how the county will
achieve the stated goals.”
3
utilities, needed to service the East County. Planning staff reported that the
Project will serve the energy needs of the East County and other
communities, support initiatives aimed at providing sustainably sourced
energy, and would not have excessive growth-inducing impacts on the East
County areas.
The EBZA voted to approve a CUP for the RMA version of the Project.
The approved Project avoided development in the RM-designated portion of
the Project site. The EBZA also certified the FEIR as having complied with
CEQA.
Plaintiffs appealed the EBZA decision to the Alameda County Board of
Supervisors (Board). The Board denied the appeal. It found the project to be
consistent with the general plan and to be a conditionally permitted use in
the A (agricultural) district. The Board approved the RMA version, certified
the FEIR, adopted findings of significant effects and a statement of
overriding considerations, and adopted a mitigation monitoring reporting
program containing over 60 mitigation measures designed to avoid or lessen
environmental impacts.
III. Petition
In April 2021, plaintiffs filed a petition for writ of mandate to set aside
the Board’s approval of the Project and certification of the FEIR. The first
amended petition asserted that the Board’s approval of the Project violated
Measure D,3 the general plan, and zoning ordinances. It also alleged four
3 Measure D, the “Save Agriculture and Open Space Lands Initiative,”
is an initiative approved by voters in 2000 which amended portions of the
county general plan, including the ECAP. Its purpose is “to preserve and
enhance agriculture and agricultural lands, and to protect the natural
qualities, the wildlife habitats, the watersheds and the beautiful open space
of Alameda County from excessive, badly located and harmful development.”
4
violations of CEQA based upon: the failure to adequately analyze and
mitigate project impacts, the failure to identify project alternatives, the
failure to provide a proper project description, and the failure to recirculate
the environmental impact report (EIR).
After considering briefing and the parties’ oral arguments, the trial
court issued a detailed, 47-page order denying the petition. Judgment was
entered in favor of the county and real parties.
On appeal, the plaintiffs argue that (1) the Board failed to make a
finding supported by substantial evidence that the Project was compatible
with Measure D and the ECAP, (2) the Project is not permitted in the
A (agricultural) zoning district, (3) the EIR failed to adequately analyze the
Project’s long-term water needs and their significant environmental impacts,
and (4) the EIR failed to adequately analyze and mitigate the Project’s
potential to exacerbate wildfire risks.
DISCUSSION
We first address plaintiffs’ arguments regarding planning and zoning
inconsistencies and then turn to their arguments relating to the FEIR.
I. General Plan Consistency
Plaintiffs contend the Board failed to make a finding supported by
substantial evidence that the Project is consistent with the county’s general
plan, which includes Measure D and the ECAP. We first summarize the
applicable legal principles and the general terms of the ECAP before
analyzing plaintiffs’ arguments.
Following voter approval of Measure D, the county incorporated it into the
ECAP.
5
A. Legal Principles
Each county must adopt a general plan, which has been described as
the “ ‘ “ ‘constitution for all future developments’ . . . .” ’ ” (Napa Citizens for
Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th
342, 355; Gov. Code, § 65300.) The county may then “prepare specific plans
for the systematic implementation of the general plan for all or part of the
area covered by the general plan.” (Gov. Code, § 65450.) The specific plan
must be consistent with the general plan. (Gov. Code, § 65454.)
On appeal from a mandate proceeding, our task “is essentially identical
to that of the trial court. [Citation.] Accordingly, ‘we review the agency’s
actions directly and are not bound by the trial court’s conclusions.’ ”
(Wollmer v. City of Berkeley (2009) 179 Cal.App.4th 933, 939.) “ ‘[A]
governing body’s conclusion that a particular project is consistent with the
relevant general plan carries a strong presumption of regularity that can be
overcome only by a showing of abuse of discretion.’ [Citations.] ‘An abuse of
discretion is established only if the city council has not proceeded in a
manner required by law, its decision is not supported by findings, or the
findings are not supported by substantial evidence. (Code Civ. Proc.,
§ 1094.5, subd. (b).)’ ” (Friends of Lagoon Valley v. City of Vacaville (2007)
154 Cal.App.4th 807, 816.) “A project need not conform perfectly to every
general plan policy to be consistent with the general plan. [Citation.] The
rule of general plan consistency is that the project ‘must be “compatible with
the objectives, policies, general land uses, and programs specified in” ’ the
general plan. . . . ‘[C]ourts accord great deference to a local governmental
agency’s determination of consistency with its own general plan, recognizing
that “the body which adopted the general plan policies in its legislative
capacity has unique competence to interpret those policies when applying
6
them in its adjudicatory capacity. [Citations.] Because policies in a general
plan reflect a range of competing interests, the governmental agency must be
allowed to weigh and balance the plan’s policies when applying them, and it
has broad discretion to construe its policies in light of the plan’s purposes.” ’ ”
(Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th
467, 501.)
“It is, emphatically, not the role of the courts to micromanage these
development decisions. Our function is simply to decide whether the city
officials considered the applicable policies and the extent to which the
proposed project conforms with those policies, whether the city officials made
appropriate findings on this issue, and whether those findings are supported
by substantial evidence.” (Sequoyah Hills Homeowners Assn. v. City of
Oakland (1993) 23 Cal.App.4th 704, 719–720 (Sequoyah Hills Homeowners
Assn.).) Courts may not substitute their view for the view of the city officials,
nor reweigh conflicting evidence. (Id. at p. 717.) As explained by our
Supreme Court: “Reviewing courts must defer to a procedurally proper
consistency finding unless no reasonable person could have reached the same
conclusion.” (Orange Citizens for Parks & Recreation v. Superior Court (2016)
2 Cal.5th 141, 155 (Orange Citizens for Parks & Recreation).)
B. ECAP Amended by Measure D
The ECAP,4 as amended by Measure D, divides the East County area
with an urban growth boundary. The areas within the boundary, which are
next to existing cities, are generally suitable for urban development, whereas
areas outside the boundary are suitable for long-term protection of natural
4 Although plaintiffs reference the general plan, their specific
complaints relate to the Project’s compatibility with land designations
discussed in the ECAP, as amended by Measure D. Accordingly, our
discussion focuses on the ECAP, which covers the Project site.
7
resources, agriculture, and public health and safety. ECAP’s policy 54 states
that in areas outside the urban growth boundary, “[t]he County shall approve
only open space, park, recreational, agricultural, limited infrastructure,
public facilities (e.g., limited infrastructure, hospitals, research facilities,
landfill sites, jails, etc.) and other similar and compatible uses . . . .” Much of
the land outside the urban growth boundary is designated by the ECAP as
LPA, RM and WM.
As noted, the approved Project was the RMA version, which includes
only WM- and LPA-designated lands. The ECAP describes the type of
development permitted in each designation. The LPA designation permits
agricultural uses and processing facilities, recreational uses, public and
quasi-public uses, solid waste landfills and related waste management
facilities, quarries, windfarms and related facilities, utility corridors, and
similar uses compatible with agriculture. The WM designation permits “sand
and gravel quarries, reclaimed quarry lakes, watershed lands, arroyos, and
similar and compatible uses.”
The ECAP also contains multiple county policies, including policy 13,
which states: “The County shall not provide nor authorize public facilities or
other infrastructure in excess of that needed for permissible development
consistent with the Initiative [Measure D]. This policy shall not bar 1) new,
expanded or replacement infrastructure necessary to create adequate service
for the East County, . . . and 3) infrastructure such as . . . power transmission
lines which have no excessive growth-inducing effect on the East County area
and have permit conditions to ensure that no service can be provided beyond
that consistent with development allowed by the Initiative. ‘Infrastructure’
shall include public facilities, community facilities, and all structures and
development necessary to the provision of public services and utilities.” The
8
ECAP’s discussion of both the LPA and the WM specifically refers to
policy 13’s allowance for infrastructure.
C. Analysis
Plaintiffs’ position that the Project is incompatible with the general
plan, the ECAP, and Measure D is based on three subarguments: (1) the
Board did not find that the Project’s solar panels were similar to and
compatible with uses allowed in the WM areas, and substantial evidence does
not support such a finding; (2) the Board failed to make a finding that the
Project’s uses were similar to uses allowed in LPA areas, and substantial
evidence does not support such a finding; (3) the Board failed to analyze
whether battery storage was consistent with the LPA designation. We
address each argument in turn.5
1. Compatibility with Uses Permitted in WM Areas
Although plaintiffs assert the Board did not find the Project compatible
with uses permitted in WM areas, the Board’s resolution plainly did so. The
Board found: “The project is in conformance with the [ECAP], as amended by
Measure D. . . . SEFs like the project meet the general plan goals and
policies and conform to the allowable uses for the LPA and WM areas. SEFs
like the project are similar in character to other uses explicitly allowed in the
general plan designations, such as windfarms, quarries and public uses. The
project does not increase capacity and provides expanded service of renewable
energy needed by customers in Alameda County and is therefore in
5 Plaintiffs and defendants (including real parties) each filed requests
for judicial notice asking us to take notice of documents that were not part of
the administrative record and that the trial court did not consider. Plaintiffs
also filed an application for permission to file a reply brief in support of their
request for judicial notice. We deny plaintiffs’ application and deny both
parties’ requests for judicial notice.
9
conformance with the ECAP.” It also found: “In the [WM] designation, the
County’s analysis has concluded that the findings of a site-specific
hydrological engineering study (Appendix G of the DEIR) demonstrates that
the project is consistent with the water quality and floodplain maintenance
policies of the WM designation, and comparable to other uses allowed in WM
such as residential, agricultural, sand and gravel quarries, reclamation pits,
and public use areas.”
Given that the WM does not specifically list SEF’s as a permitted use,
the question becomes whether substantial evidence supports the Board’s
finding that SEF’s are a “similar and compatible use” to the other permitted
uses listed for the WM, such as sand and gravel quarries and reclaimed
quarry lakes. Preliminarily, we note that the language of the ECAP
specifically permitting “similar and compatible uses” allows for some
flexibility in making land use determinations. (San Francisco Tomorrow v.
City and County of San Francisco (2014) 229 Cal.App.4th 498, 515 (San
Francisco Tomorrow) [recognizing general plans reflect range of competing
interests and board of supervisors has discretion to weigh and balance a
general plan’s policies in making consistency determinations].) Substantial
evidence supports the Board’s findings here. Plaintiffs complain that the
Board’s findings did not explain specifically how solar panels are similar and
compatible uses to other WM uses. They overstate the level of detail
required. As explained in Topanga Assn. for a Scenic Community v. County
of Los Angeles (1989) 214 Cal.App.3d 1348, “great specificity is not required.
It is enough if the findings form an analytical bridge between the evidence
and the agency’s decision.” (Id. at p. 1356.) Further: “Findings are required
to state only ultimate rather than evidentiary facts.” (Id. at p. 1362; accord,
10
Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421–422 (Young)
[agency is not required to support findings with subfindings].)
Regarding the WM area, the Board found the Project was similar and
comparable to allowed uses and consistent with water quality and floodplain
maintenance policies. The latter finding is supported by the hydrological
study, which states the Project will not impact water supply or flood hazards.
We are not persuaded by plaintiffs’ argument that the hydrological study is
not substantial evidence because water supply and flooding are not relevant
to WM consistency. The record indicates that the county reasonably inferred
that the WM designation was created to protect water supply and
management of flood zones. The staff report explains that the “WM
designation is appropriate to protect water supply and ensure floodplain
management in the vicinity of Cayetano Creek” and that the Project’s specific
hydrological study was conducted in this regard. The Board reasonably
relied upon county staff’s interpretation of the purpose of the WM designation
and the hydrological study. (City of Rancho Cucamonga v. Regional Water
Quality Control Bd. (2006) 135 Cal.App.4th 1377, 1387 (City of Rancho
Cucamonga) [“ ‘[a]n agency may . . . rely upon the opinion of its staff in
reaching decisions, and the opinion of staff has been recognized as
constituting substantial evidence’ ”].)
Further, the Board’s finding that the Project is similar or comparable to
other allowed uses is supported by the record. The Board considered the
Project a public utility use permissible in the WM designation, as county staff
opined.6 The county staff report explained that various policies in the ECAP
6 Plaintiffs refer to comments planning department staff made in
spring 2020 that they did not support having the Project on WM-designated
areas. While there may have been internal debate and discussion about WM
compatibility in the earlier stages of the Project, we do not find this
11
support the Project, including policy 285, which permits the county to
“ ‘facilitate the provision of adequate gas and electric service and facilities to
serve existing and future needs’ ”; policy 85, which promotes the “ ‘production
of natural resources (e.g. agricultural, wind power, and mineral extraction)’ ”;
and policy 13, which, as discussed ante, permits infrastructure, defined to
include “ ‘structures and development necessary for the provision of public
services and utilities,’ ” that is needed to service the East County.
At the Board hearing, county staff explained to the Board: “There is no
language specifically pertaining to solar electrical uses in Measure D or in
the [ECAP] themselves. There were similar projects in 2008 and 2012, which
were deemed allowable as they were similar to other conditionally permitted
uses that already exist in the County. The Planning Commission determined
conformance with the General Plan and zoning. The zoning allows public
utility uses. The General Plan allows public and quasi-public uses, wind
farms and related facilities, utility corridors and similar uses compatible with
significant to the issues before us. Some of the staff comments to which
plaintiffs cite are couched in less than definitive language (“RM and WM
have generally been considered off limits to energy production.” “Broadly
speaking, the County considers the WM designation . . . not meant for large
solar energy facilities.”) and suggest further consideration is expected. More
importantly, county staff ultimately determined that the Project was
comparable to other uses allowed in WM areas, “such as . . . sand and gravel
quarries, reclamation pits, and public use areas,” and county staff further
concluded the hydrological study, which was finalized in November 2020,
demonstrated that the Project was consistent with the water quality and
floodplain maintenance policies of the WM designation. The Board was
permitted to rely upon county staff’s final conclusions. (City of Rancho
Cucamonga, supra, 135 Cal.App.4th at p. 1387.) It is not our role to reweigh
conflicting evidence, but, rather, we “defer to procedurally proper consistency
findings unless no reasonable person could have reached the same
conclusion.” (Orange Citizens for Parks & Recreation, supra, 2 Cal.5th at p.
155; Sequoyah Hills Homeowners Assn., supra, 23 Cal.App.4th at p. 717.)
12
agriculture. . . . Solar was deemed to be similar enough to other permitted
uses and should be allowed with a conditional use permit, and a vote or
general plan amendment are not required to allow solar uses.”
We find the record contains substantial evidence that the Project, an
SEF which would generate electricity for public consumption to serve the
needs of the East County and other communities, was considered to be
infrastructure or a public utility use, which is similar and compatible with
other uses specifically permitted in the WM designation. The Board’s
consistency finding was not arbitrary and capricious, and we cannot conclude
that no reasonable person would make these determinations. (San Francisco
Tomorrow, supra, 229 Cal.App.4th at p. 515.)
2. Compatibility with LPA
Regarding consistency with the LPA, the Board found the following:
“In the [LPA] designation, the County’s analysis has concluded that solar
development is comparable to other uses specifically allowed, including public
and quasi-public uses, windfarms, utility corridors, and similar uses
compatible with agriculture. The Project, which includes solar arrays,
vegetation, compacted dirt and graveled access roads, as well as sheep
grazing, honeybee foraging, and raising egg-producing chickens, would
promote continued agricultural use of the project site, consistent with the
LPA land use designation.” Further, with specific reference to issues raised
by the plaintiffs in their appeal to the Board, the Board found: “The project is
in conformance with the [ECAP], as amended by Measure D. . . . SEFs like
the project meet the general plan goals and policies and conform to the
allowable uses for the LPA and WM areas. SEFs like the project are similar
in character to other uses explicitly allowed in the general plan designations,
such as windfarms, quarries and public uses. The project does not increase
13
capacity and provides expanded service of renewable energy needed by
customers in Alameda County and is therefore in conformance with the
ECAP. A General Plan Amendment is not required prior to permitting this
project.”
Plaintiffs make three arguments in support of their position that
substantial evidence does not support the Board’s finding that the Project is
consistent with the LPA designation. First, they argue that the Board
improperly relied upon the planning department’s prior determination
(determination D-165) that SEF’s are permitted in LPA areas and are a
conditionally permitted use in the A (agricultural) zoning district. Second,
they contend the Board’s finding that the Project was similar to and
compatible with the LPA’s listed uses was conclusory. Third, they argue the
Board failed to separately analyze whether the battery storage component of
the Project was consistent with the LPA. None of plaintiffs’ contentions have
merit.
a. Determination D-165
One of the Board’s findings is that the Project is permissible in the
A zoning district.7 The finding refers to the Alameda County Planning
Commission’s June 16, 2008 consideration of determination D-165 pursuant
to Alameda County Ordinance Code sections 17.54.050 and 17.54.060, which
provide a procedure for resolving “ ‘doubt as to the district classification of a
use not listed in any part of this title’ . . . .” (Alameda County Ord. Code,
§ 17.54.050.) Alameda County Ordinance Code section 17.54.050, entitled
“Uses not listed—Procedure,” states: “Whenever there is doubt as to the
district classification of a use not listed in any part of this title, the planning
department may refer the matter to the planning commission for action
7 The zoning arguments are further addressed post.
14
pursuant to Section 17.54.060. The referral shall include a detailed
description of the proposed use.” Section 17.54.060 states: “Upon referral as
provided in Section 17.54.050, the planning commission shall consider the
district classification of a use not listed in any part of this title, and shall
make such investigations as are necessary to compare the nature and
characteristics of the use in question with those of the listed uses in the
various districts. If the use is found to be, in all essentials pertinent to the
intent of this title of the same character as a permitted use in any district or
districts, or of the same character as a conditional use in any district or
districts, the commission shall so determine and the order shall be final,
unless a notice of appeal is filed pursuant to Section 17.54.670 within ten
days after the date of such an order. The person requesting the
determination shall be notified forthwith and the final determination shall
become a permanent public record.”
In 2008, the planning director initiated the request for what became
known as determination D-165 in connection with consideration of another
developer’s (Greenvolts, Inc.) application for a CUP for a utility-scale solar
field project on LPA land in the A zoning district. The planning staff
considered the listed land uses in the LPA designation and in the
A (agricultural) zoning district and found that a solar energy land use is
allowable because it is similar to other conditionally permitted uses,
including wind farms and public utility buildings. Planning staff requested
that the planning commission determine that a privately owned solar energy
production facility is (1) consistent with its general plan land use designation
because it would constitute a quasi-public use that is a “similar compatible
use” comparable to landfills, quarries, windfarms and utility corridors and
(2) a conditionally permitted use in the A (agricultural) district because it
15
would be similar to other conditionally permitted uses, including wind farms
and public utility buildings and similar uses.
On June 16, 2008, the planning commission voted unanimously to
accept staff recommendations that a privately owned SEF is an allowable use
on LPA lands and a conditionally permitted use in the A (agricultural)
district. Plaintiffs acknowledge that there was no appeal from the
commission’s determination D-165 and, therefore, under Alameda County
Ordinance Code section 17.54.60, the result became final. A month later, on
July 17, 2008, the EBZA approved Greenvolts, Inc.’s application for a CUP for
installation of a utility-scale solar electricity production facility in the
A (agricultural) zoning district.8
The Board’s resolution approving the Project at issue here refers to
both the 2008 determination D-165 and a subsequent approval in 2011 of an
application for a CUP filed by Cool Earth Solar for an SEF. Plaintiffs
contend the Board may not rely on these prior findings because they relate to
different projects. We question whether it is accurate to describe
determination D-165 as relating to a specific project. Although the
determination was presented to the planning commission during the
approval process for a CUP for Greenvolts, Inc., the procedure followed was
that provided under Alameda County Ordinance Code sections 17.54.050 and
17.54.060, which allows for the commission to determine whether a
particular unlisted use is permissible in a zoning district because it is of the
same character as a listed conditional use permitted in the same district.
(Alameda County Ord. Code, §§ 17.54.050, 17.54.060.) In any event, we do
not find it improper for the Board to reference determination D-165 or other
prior approvals of SEF projects in support of its determination that the
8 Although approved, the Greenvolts, Inc., project was not constructed.
16
Project’s uses are similar to other LPA uses. Contrary to the plaintiffs’
argument, the Board made findings related to this specific Project at issue,
which was similar, at least in part, to prior SEF projects. It was not
unreasonable for the Board to reference determination D-165 or a prior CUP
approval for a Cool Earth Solar project as support for its finding that the
current Project is similar to LPA’s listed uses.
The cases plaintiffs cite to support their contention that the Board
erroneously relied on previous findings relating to different projects are
inapposite. Topanga Assn. for a Scenic Community v. County of Los Angeles
(1974) 11 Cal.3d 506 addressed whether an agency’s findings were sufficient
to support a zoning variance, but it did not involve the issue of whether an
agency may refer to prior findings on a similar issue. (Id. at pp. 518–522.)
Dore v. County of Ventura (1994) 23 Cal.App.4th 320 found sufficient board
findings that incorporated factual findings in staff reports. (Id. at pp. 328,
330; see McMillan v. American General Finance Corp. (1976) 60 Cal.App.3d
175, 185–186 [same]; Harrington v. City of Davis (2017) 16 Cal.App.5th 420,
440 [same].)
Nor does Respers v. University of Cal. Retirement System (1985) 171
Cal.App.3d 864 support plaintiffs’ position. In Respers, the board of the
University of California’s retirement system rejected the findings of its
hearing officer but did not make its own findings supporting its rejection of
the hearing officer’s proposed decision. (Id. at pp. 867, 869.) On appeal, the
court first confirmed that an agency “may make findings by incorporating
findings made by others.” (Id. at p. 872.) It then found the record did not
show that the board adopted as its own the findings a review committee
made a year before the hearing officer’s proposed decision. (Id. at pp. 869,
872.) The court explained, “Absent some indication an agency has adopted
17
the findings of others, there is no assurance that findings prepared by others
reflect the view of the agency taking the action.” (Id. at p. 872.) Here, the
Board found that the project was consistent with the LPA designation as a
comparable use to other specifically allowed uses. It further found that the
county previously made similar consistency findings for other SEF projects,
including determination D-165. Thus, unlike in Respers, here, the Board’s
findings indicated it agreed with determination D-165, and it made the same
findings as to this Project. Nothing in Respers precludes the Board from
considering prior similar consistency findings.
b. LPA Consistency Finding Is Not Conclusory
The ECAP lists uses permitted in the LPA designation, including
“public and quasi-public uses, solid waste landfills and related waste
management facilities, quarries, windfarms and related facilities, utility
corridors, and similar uses compatible with agriculture.” The Project will
provide solar power to utility customers by interconnecting to an electrical
grid at an adjacent PG&E substation. In addition, other Project components
include concomitant agricultural uses including sheep grazing and honeybee
forage. The FEIR explained how the Project would promote continued
agricultural use at the project site through sheep grazing and honeybee
forage. In addition, the record includes an agricultural management plan
which outlines the agricultural aspects of the Project. This is sufficient
evidence to support the Board’s determination that the Project was similar to
other listed LPA uses, such as “windfarms, utility corridors, and similar uses
compatible with agriculture.” The LPA consistency finding was not arbitrary
and capricious, and we cannot conclude that no reasonable person would
make these determinations on this record. (San Francisco Tomorrow, supra,
229 Cal.App.4th at p. 515.)
18
c. The Board Considered Battery Storage as a
Component of the Project
Plaintiffs argue that a separate analysis of LPA compatibility was
required for the battery storage component of the Project. They cite no
authority for this position, and their claim seems to ignore the record’s
repeated references to the battery energy storage component of the Project,
including in the EIR, at the Board hearing, and multiple times in the Board’s
resolution. The Project is described as having multiple components,
including solar panels, a substation and transmission line, an operations and
maintenance building, and a battery energy storage system. As explained in
the EBZA’s statement of overriding considerations, the Project’s “four-hour
battery storage system would help to stabilize energy supplies and would
provide energy generated from solar well into the peak-demand evening
hours. This would reduce the need to employ backup generators, thus
improving efficiency of the grid, reducing costs, and reducing the emissions
that would come from the operation of the backup generators. Further, this
project would allow utilities within the Bay Area to secure locally-generated
renewable energy to meet their requirements under the Resource Adequacy
framework adopted by the California Public Utilities Commission in 2004.” A
fair reading of the record is that the Board’s findings that the Project was
similar to other listed LPA uses necessarily includes all of the Project’s
components.
Plaintiffs’ reliance on Ideal Boat & Camper Storage v. County of
Alameda (2012) 208 Cal.App.4th 301 is misplaced. In Ideal Boat & Camper
Storage, the county denied an application by a boat and camper storage
business for a variance to expand its storage facility to add over 700
additional vehicles and boats on 30 acres of land in the LPA designation. (Id.
at pp. 304–305, 307, 308.) County staff recommended denial of the
19
application because it would constitute an expansion of a nonconforming use
and was contrary to Measure D. (Id. at p. 309.) The planning commission
denied the application, and the Board denied the owner’s appeal. (Id. at p.
310.) The trial court denied the owner’s writ petition. On appeal, our
colleagues in Division Four affirmed the Board’s finding that the owner’s
existing storage facility was a nonconforming but preexisting use that could
continue. However, expansion of the storage facility was contrary to
Measure D. (Id. at pp. 313–315.) Plaintiffs assert that because Ideal Boat &
Camper Storage upheld a Board determination that storage of boats and
campers was a nonconforming use, the SEF at issue here is likewise a
nonconforming use because it includes battery storage. We disagree. Ideal
Boat says nothing about whether an SEF is permitted in the LPA
designation, and it does not stand for the position that all types of storage, in
any capacity, are nonconforming uses in the LPA designation.
II. Zoning
In addition to the Board’s findings that the Project was similar in
character to uses explicitly allowed in the ECAP’s LPA and WM areas, such
as windfarms, quarries, and public uses, the Board also found the Project is
allowable under the county’s zoning ordinances. The Board referenced the
planning commission’s prior determination D-165 that SEF’s “like the project
are similar in character to other uses explicitly allowed by the Zoning
Ordinance in the A District . . . .” Plaintiffs argue solar and battery storage
are prohibited in the A (agricultural) zoning district and that
determination D-165’s contrary conclusion is not applicable to the Project.
“Similar to an agency’s interpretation of its own general plan, ‘an
agency’s view of the meaning and scope of its own [zoning] ordinance is
entitled to great weight unless it is clearly erroneous or unauthorized.’ ”
20
(Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173,
1193 (Anderson First Coalition).) We find the Board’s determination that the
Project is consistent with uses permitted in the A (agricultural) zoning
district is not clearly erroneous or unauthorized, and the record contains
substantial evidence supporting the Board’s determination.
As stated in the Board’s findings, the A (agricultural) district’s intent is
“to promote implementation of general plan land use proposals for
agricultural and other nonurban uses, to conserve and protect existing
agricultural uses, and to provide space for and encourage such uses in places
where more intensive development is not desirable or necessary for the
general welfare.” (Alameda County Ord. Code, § 17.06.010.) Conditional
uses permitted in the A district include drilling for oil, gas or other
hydrocarbon substances, public utility building or uses, and privately owned
wind-electric generators. (Id., § 17.06.040.)
Plaintiffs argue that the Board’s reliance on determination D-165 to
find that the Project was conditionally permitted in the A (agricultural)
district was improper because determination D-165 was not a legislative
determination but, instead, was “quasi-judicial.” According to plaintiffs,
determination D-165 has no general application to other SEF projects. As
discussed ante, determination D-165 was made pursuant to Alameda County
Ordinance Code sections 17.54.050 and 17.54.060, and although the
Greenvolts, Inc., 2008 application was the impetus for determination D-165,
the determination was made separately from the approval of the
Greenvolts, Inc., application. Defendants argue that determinations made
under section 17.54.060, such as determination D-165, generically determine
whether an unlisted use is suitable in a particular zoning district and if they
become final they are a matter of “ ‘permanent public record . . . .’ ” Neither
21
party cites case authority addressing the reach or precedential value of a
planning commission’s determinations under section 17.54.060 or similar
ordinances allowing for a determination of compatibility of an unlisted use in
a particular zoning district.9
We need not decide whether determination D-165 is a binding
determination applicable to all applications for SEF’s in the A (agricultural)
zoning district because the record contains substantial evidence supporting
the Board’s finding that the Project is “similar in character to other uses
explicitly allowed by the Zoning Ordinance in the A District, such as
windfarms and public utility uses.” (Alameda County Ord. Code,
§ 17.06.040.) As discussed ante, the Project will provide solar power to utility
customers by interconnecting to an electrical grid at an adjacent PG&E
substation. The FEIR states that county counsel determined solar facilities
constitute quasi-public uses consistent with windfarms and utility corridors.
The Board relied on the staff reports and agreed that the Project was a public
utility use. The FEIR further provides that the Project will continue
agricultural use through sheep grazing and honeybee forage at the Project
site. On this record, we do not find that the county’s interpretation of its
zoning ordinance is clearly erroneous or unauthorized. (Anderson First
Coalition, supra, 130 Cal.App.4th at p. 1193; see City of Rancho Cucamonga,
supra, 135 Cal.App.4th at p. 1387 [“ ‘[a]n agency may . . . rely upon the
opinion of its staff in reaching decisions, and the opinion of staff has been
recognized as constituting substantial evidence’ ”].)
9 Plaintiffs cite Bringle v. Board of Supervisors (1960) 54 Cal.2d 86 as
support for their position that determination D-165 is limited to the
Greenvolts, Inc., project. But Bringle involves a zoning variance and does not
discuss a zoning ordinance with a procedure similar to Alameda County
Ordinance Code section 17.54.060. (Bringle, at p. 90.)
22
Nor are we persuaded by plaintiffs’ argument that the battery storage
component of the Project is prohibited in the A (agricultural) zoning district.
As discussed ante, battery storage was a part of the overall Project, and no
separate subfindings of compatibility are required. (Young, supra, 10
Cal.App.5th at pp. 421–422.) The county staff explained to the Board that
the battery storage component was an ancillary part of the Project,
comprising five acres of the total 347-acre Project site. Further, the EBZA’s
statement of overriding considerations explains the importance of the battery
energy storage component: to allow utilities to secure locally generated
renewable energy. Substantial evidence supports the Board’s finding that
the entire Project, including the battery storage component, is a conditionally
permitted use similar to other uses permitted in the A (agricultural) zoning
district, such as windfarms and utility uses.
III. CEQA
Plaintiffs complain that the EIR failed to adequately analyze the
Project’s water needs and wildfire risks. Our CEQA review is based on
section 21168.5, which states that our “inquiry shall extend only to whether
there was a prejudicial abuse of discretion. Abuse of discretion is established
if the agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial evidence.” We
review the adequacy of an EIR under the same abuse of discretion standard.
(Sequoyah Hill Homeowners Assn., supra, 23 Cal.App.4th at p. 712.) “It is
not our function to pass on the correctness of the EIR’s environmental
conclusions, but only upon its sufficiency as an informative document. We
look ‘not for perfection but for adequacy, completeness, and a good faith effort
at full disclosure.’ (Guidelines, § 15151.)” (Ibid.) Further, we presume the
county’s decision to certify the EIR was correct; plaintiffs bear the burden of
23
establishing otherwise. (Sierra Club v. City of Orange (2008) 163 Cal.App.4th
523, 530.)
A. Water Analysis
Plaintiffs acknowledge that the EIR assessed the Project’s water needs
and relied on a water supply assessment and hydrology study (WSA) which
was attached to the EIR. The FEIR concluded that the Project would not
have a significant impact on water supplies available to serve the Project,
which include groundwater pumped from the Livermore Valley Groundwater
Basin, surface water imported to the project area via the Zone 7 Water
Agency, and local groundwater banking operations. The WSA analyzed the
water demands of each aspect of the Project, including during construction,
operation, and decommissioning.
Plaintiffs’ first argument regarding the water supply is that the EIR
failed to adequately account for the water needed for the agricultural
landscape buffer. The WSA explains that the Project will include a demand
for irrigation water to establish native and drought-resistant landscaping
plants, which would be fully established within three years. After this
period, the WSA states, “irrigation would cease and landscape plants would
be sufficiently established to be supported by the natural environment.” The
FEIR states the proposed landscaping would be irrigated via an on-site water
storage tank and that all plants would be drought-tolerant.
Plaintiffs argue that the EIR’s analysis failed to consider additional
water needs that may be required based on the EBZA’s imposition of an
additional condition to plant agricultural crops on the landscaping buffer.
Plaintiffs characterize this condition as “a significant new agricultural crop
landscaping requirement” and state that the EBZA required the Project
developer to “ ‘plant agricultural crops such as olive trees and/or grape
24
vines’ ” on the Project’s eastern and northern boundaries. According to
plaintiffs, the county prejudicially abused its discretion when it approved the
EIR because the EIR did not assess “this significant life-of-the-Project
agricultural landscaping and irrigation requirement in its discussion of the
Project’s water supply needs or their potential environmental impacts.”
There are several problems with plaintiffs’ argument. First, plaintiffs
selectively quote from the EBZA resolution, which leads to a
mischaracterization of the new condition. The full quote of the additional
condition imposed by the EBZA resolution states: “WHEREAS, based on
facts in the record regarding the significant effects of the project on scenic
qualities and preservation of agriculture as a quality of open space, the Board
determined than [sic] an additional condition of approval is necessary and
proper providing for increased setbacks of 100 feet from the public rights-of-
way of North Livermore Avenue and Manning and Hartman Roads, and 80
feet from the western project boundary, within which, instead of decorative
trees and landscaping the project developer shall plant agricultural crops
such as olive trees and/or grape vines to the extent that such species are native
to California, drought-resistant, avoid excessive irrigation requirements and
maintain the prevailing visual and and [sic] agricultural character.”
(Boldface omitted, italics added.) The Board resolution included the same
statement, and the Board’s authorization of the Project required an
“agricultural planting and screening buffer within [the] setbacks, and on
which native drought-resistant agricultural crops shall be planted pursuant
to an agricultural plan . . . .” Further, the Board required that the
agricultural plan be approved by the planning director. The Project
developer submitted an agricultural plan describing the use of “drought
tolerant [plants], requiring no additional water sources after planting &
25
establishment.” The Board resolution includes a mitigation measure
requiring the agricultural buffer to be “adequately irrigated to establish the
long-term viability of the buffer . . . .”
Second, plaintiffs’ argument is based on an unfounded assumption that
the additional agricultural crop landscaping condition imposed by the EBZA
requires irrigation to continue throughout the 50-year life of the Project,
which was not analyzed in the WSA. Contrary to plaintiffs’ contention, the
record shows that the EBZA and the Board consistently discussed an
agricultural landscape buffer as including “drought-resistant” plants that
would “avoid excessive irrigation . . . .” While the precise details regarding
the specific plants in the buffer area remain an open question, it is certain
that they will be drought-tolerant and not require significant water needs.
Thus, the WSA’s analysis of irrigation needed to establish the landscape
buffer is consistent with the contemplated landscape buffer and is sufficient
evidence to support the Board’s findings.
Plaintiffs next argue that the WSA relied on speculative water sources.
As noted ante, the WSA was attached to the FEIR, and it analyzed the water
demands for the Project during construction, operation and decommissioning.
The FEIR concluded that the Project would not have a significant impact on
water supplies available to serve the Project, which include groundwater
pumped from the Livermore Valley Groundwater Basin, surface water
imported to the Project area via the Zone 7 Water Agency, and local
groundwater banking operations. It further provides estimates of water
usage over the Project’s 50-year operations period. Plaintiffs argue that the
WSA failed to consider the water needs and supply for the full 50 years of the
Project. They cite one portion of a footnote contained in the WSA, which
states, “Due to the project’s lifetime being anticipated at 50 years, it would be
26
highly speculative to characterize water supply or reliability conditions at
this time,” and contend the WSA inadequately analyzed water needs. When
read in context, it is clear that the footnote is referring to possible potential
water demands to operate the Project if it is repowered after 50 years. The
WSA states that in the event of repowering rather than decommissioning,
additional CEQA review and permitting would likely be required and
therefore the WSA did not analyze water demands associated with possible
repowering after the Project’s 50-year lifespan.
However, the WSA did consider the Project’s water needs over its 50-
year lifespan. Regarding supply, the WSA referred to the Alameda County
Zone 7 Urban Water Management Plan (UWMP), which provides 20-year
supply projections under normal-, single-dry-, and multiple-dry-year
scenarios. The current UWMP is from 2015 and projects water availability
through 2035. The WSA explains that the UWMP projects a surplus water
supply under all considered drought scenarios, including normal-year, single-
dry-year, and multiple-dry-year conditions. The WSA concluded that because
the site’s primary use as a solar project is less water-intensive than
agricultural uses, the actual water demands for the Project will be lower than
planned for the site in the UWMP. The FEIR summarized the WSA and
concluded that it is anticipated that sufficient water would be available to
serve the Project.
Plaintiffs argue that the FEIR fails to demonstrate the long-term
sufficiency of the water supply for the entire 50 years of the Project because it
relies on the UWMP supply projection through 2035. This, they claim,
amounts to reliance on speculative water sources that are an inadequate
basis for decision making under CEQA. (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412,
27
432.) We are not persuaded. The FEIR and the attached WSA explained the
Project’s projected water needs and analyzed the water supply projections
under the UWMP. They further explained zone 7’s diversified water supply
portfolio, including groundwater and banking efforts that receive surplus
water during wet years, and surface water. The FEIR and WSA properly
relied upon the available information contained in the most recent UWMP to
identify and analyze “future water supplies [that] bear a likelihood of
actually proving available.” (Vineyard Area Citizens for Responsible
Growth, Inc., at p. 432 [“Requiring certainty [of sufficient future water
supplies] when a long-term, large-scale development project is initially
approved would likely be unworkable, as it would require water planning to
far outpace land use planning”]; Guidelines, § 15151 [“the sufficiency of an
EIR is to be reviewed in light of what is reasonably feasible”].) We find
substantial evidence supports the finding that the Project will have an
adequate water source. Plaintiffs, who offer no explanation as to why the
water supply for zone 7 is likely to change significantly after 2035, fail to
meet their burden of demonstrating that the EIR was not adequate.
(§ 21167.3; Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010)
190 Cal.App.4th 316, 327–328 [persons challenging EIR bear burden of
proving it is legally inadequate and that agency abused its discretion in
certifying it].)10
10 For the first time on appeal, plaintiffs assert the EIR failed to
analyze potential environmental impacts of having to truck water onto the
site. Further, plaintiffs include no record citations or reasoned analysis of
this issue. Thus, the claim is forfeited. (Friends of the Eel River v. Sonoma
County Water Agency (2008) 108 Cal.App.4th 859, 878 [a reviewing court
“may treat an issue as waived ‘when an appellant makes a general assertion,
unsupported by specific argument’ ”]; Family Health Centers of San Diego v.
State Dept. of Health Care Services (2021) 71 Cal.App.5th 88, 98.)
28
B. Wildfire Risks
Finally, plaintiffs argue the EIR did not adequately analyze the
Project’s impact on wildfire risks. They acknowledge that they did not raise
this issue in the trial court and offer no explanation for their omission. Even
if we were inclined to consider plaintiffs’ claim for the first time on appeal, we
would still find the claim forfeited because plaintiffs fail to set out all
relevant evidence regarding the EIR’s wildfire risk analysis. (Tracy First v.
City of Tracy (2009) 177 Cal.App.4th 912, 934–935 [“ ‘As with all substantial
evidence challenges, an appellant challenging an EIR for insufficient
evidence must lay out the evidence favorable to the other side and show why
it is lacking. Failure to do so is fatal. A reviewing court will not
independently review the record to make up for appellant’s failure to carry
his burden’ ”].)
To the extent plaintiffs’ claim is limited to whether the EIR was
procedurally inadequate because it omitted required information in its
assessment of wildfire risk, plaintiffs again fail to meet their burden. They
ignore much of the EIR’s wildfire analysis. They assert the EIR’s conclusion
that the Project’s impact on wildfire risk was less than significant was based
on the Project site’s classification as a moderate fire hazard zone and that
vegetation on the site would be managed through sheep grazing. They
further assert the EIR did not consider wind impacts or that the Project site
will include solar batteries. Plaintiffs are wrong. The EIR specifically
considered the site’s topography and wind conditions and explained: “The
project substation would be constructed to provide the necessary circuit
breakers, switches, protection relays, and other necessary equipment to
reliably and safely protect the electrical infrastructure. Additionally, each
battery unit in the battery storage system would be constantly monitored by
29
a battery management system to ensure safe operations. . . . If there were to
be multiple failures in this multi-level safety system, an automatic fire
suppression system would kick in. Emergency fire kits would be kept on site
during construction and operation, and a 250,000-gallon water storage tank
for fire suppression would be located adjacent to the battery storage
system . . . .”
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal.
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Chou, J.
A165768/Save North Livermore Valley v. County of Alameda
30