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The first time San Bernardino County applied its Renewable Energy Ordinance, the result was a loss for solar energy and skilled workers in the middle of an economic crisis.
The ordinance was used to deny Clean Focus Corporation its application to build a job-creating solar generation facility on 23 acres in unincorporated Apple Valley, when the San Bernardino County Board of Supervisors upheld a denial for a conditional land use permit on August 5. The initial denial was voted on by the County Planning Commission in June, and a second hearing was granted when Clean Focus appealed the decision. After representatives from Clean Focus and Laborers International Union Local 783 spoke in favor of the project, the board cast a 3-2 vote that put a stop to its development once and for all.
Now, it appears to be the end of the road for a project that was initially embraced by both the county and the town where the development was to be adjacent. “Most of the money was spent after we received positive feedback from the county, as well as the town of Apple Valley itself,” said Matt Coleman, executive vice president of project development at Clean Focus. “Moreover, we’ve already spent half a million dollars on this project.”
LIUNA Local 783 president Richard Sierra stated his support for the project on behalf of the union members that would be hired by Clean Focus to build the facility. “Job creation is and should be the highest priority of the county,” he said.
Are the County’s Actions Legal?
According to the town of Apple Valley’s development code, solar power generating facilities may only exist in industrial zones or dry lake beds, and not areas that are zoned as rural/residential, which is the zoning classification that applies to the land on which Clean Focus proposed building its facility.
But because the Clean Focus solar facility was to be built in an unincorporated area of Apple Valley not within city limits, some are calling into question the legality of applying the development standards of a surrounding city to a decision that falls under county jurisdiction. “Because we’re not in the town, it’s impossible for Apple Valley to look at the project and say (whether) we meet their development code,” Matt Coleman said during the hearing. Coleman referenced a letter sent by Apple Valley officials to Clean Focus earlier this year, which stated that the project was “not necessarily within the town.”
Interpreting the Sphere of Influence
The initial planning commission denial of Clean Focus’ application for a conditional use permit was on the grounds that the project was within Apple Valley’s “sphere of influence,” a term used in the county ordinance that supporters of the project say is open to interpretation. One legal analyst told IE Business Daily that the only legal definition of the term is “an area that can be annexed into a town or city.”
“It seems to me that in unincorporated Apple Valley, the county is supposed to preside over land use,” he said. “By applying the surrounding city’s ordinance to a project – something that has never been done for any other land use purpose – there may be a real legal case there.” Sources have told IE Business Daily that litigation is being considered.
During the hearing, supervisor Josie Gonzales appeared to question the term as well. “If we are to interpret the solar ordinance in such a way that it requires cities with sphere of influence to zone for solar in the unincorporated areas,” Gonzales said, “then are we not essentially saying that there will never be a commercial solar project in unincorporated, in this case, Apple Valley – because the town has pre-zoned for it?” Before the votes were cast, Gonzales added, “Is there something that needs to take place in the town’s planning commission so that when we move forward on these items, there is a consistency?”
In the end, Gonzales cast the deciding vote to uphold the denial. Dissenting votes were cast by supervisors Janice Rutherford and Gary Ovitt.
Despite her vote, Gonzales summed up the county’s predicament in a way that is nearly consistent with that of the project’s supporters. “It seems quite important that we address these land use zoning issues with different cities that have a sphere of influence in our unincorporated areas,” she said. “Otherwise, it would seem to me that any proposed solar project within their sphere would become a moot point.”
Why Did the County Move Forward?
Gonzales also questioned the county’s initial openness to the project in the early stages of Clean Focus’ proposal. “Why, then, did we accept the application from the applicant,” she said before casting her vote. “And why did we process it? Why did we take the money and move forward?”
After investing $500,000 in the project, Clean Focus Corporation may also wish to hear the answer to that question – as would 50 union members that were eager to begin work on constructing the facility.
