(July 22)  The county board of supervisors this week rejected an appeal by a group of Phelan homeowners who had sought to have the county planning commission’s previous approval of a 5.8 megawatt solar field near their homes overturned.
On April 17, 2014, the county planning commission conducted a public hearing at which it considered a Sun E Crest 1, LLC and Sun E Crest 2, LLC’s application for a conditional use permit to establish a 5.8 megawatt photovoltaic solar power generating facility 50-acre site  located on the west side of White Road, the south side of Nielson Road, and the north side of Muscatel Road in the unincorporated community of Phelan.
The planning commission heard testimony from twelve area residents who raised concerns in opposition to the project, including land use incompatibility; adverse impacts to surrounding residents’ views; gneration of blowing dust; potential drainage problems on the west side of the site where an existing illegal access will be eliminated, and alternative access is unimproved; adverse effects to the access of emergency vehicles using surrounding roads; adverse effects to biological resources on the subject site; adverse effects to residents’ access on the west side of the site; adverse effects on surrounding property values; and lack of notice to some area residents.
The planning commission’s discussion focused on the potential “Lake Effect” causing migratory birds to dive into solar panels; land disturbance and vegetation removal; greenhouse gas analysis; reclamation of the project site after facility decommissioning; visual impacts; and public road access along the west property line.
Representatives of AMEC Environmental, a biological consultant to the applicant, spoke to concerns regarding the “Lake Effect” and stated that the technology used in the proposed project is different and more advanced than facilities for which that issue has been raised elsewhere. A detailed technical memorandum on the “Lake Effect” was also submitted as supplemental information and is attached to  the planning commission staff report. The AMEC representatives also addressed other environmental concerns with references to the initial study and supporting documents.In response to concerns regarding residents’ access and drainage issues on the west property line, the applicant offered to improve and maintain a 26-foot graded dirt access road on the west property line. An additional condition of approval was added at the request of the planning commission to require this access, consisting of a proposed road, an extension of Pueblo Trail.
County mining geologist George Kenline addressed the concerns expressed by the planning commission regarding future land reclamation and stated that a decommissioning plan, similar to a mine reclamation plan, is required by the conditions of approval.
At the conclusion of the public hearing, the planning commission voted 3-1 (Commissioner Smith opposed, Commissioner Rider absent) to approve the project.
The White Road Property Owners Association filed a timely appeal of the planning commission’s decision and that appeal was heard by the board this week.
The first grounds for appeal, according to the association is that “The county planning commission failed to meet its responsibilities and obligation to protect our communities, in so much, that our quality of life, the intrinsic value of the desert’s natural and scenic views, the economic value of our homes would all be compromised and negatively affected by their decision to grant this permit to SunEdison.”
In response, Tom Hudson the director of the San Bernardino County Land Use Services Department, said, “The Project has been reviewed and analyzed in compliance with all applicable County policies, ordinances and regulations. Specifically, the initial study was prepared in accordance with all requirements of the California Environmental Quality Act (CEQA). A detailed analysis of key issues was performed by technical experts. Mitigation measures were incorporated where determined appropriate, in compliance with all pertinent CEQA requirements and procedures.
In addition to required mitigation measures, Condition No. 46 imposes the requirement for a landscape buffer/translocation plan, in compliance with Section 88.01.060 of the Development Code, which will result in the relocation of suitable Joshua trees and other species from internal areas on-site to the site perimeter. These measures will provide visual screening. In addition, the project has provided setbacks from all property lines which exceed required county setback standards.”
Hudson continued, “Further, no designated ‘scenic views’ exist on-site or in the adjacent areas. The initial study acknowledges that the project will alter the existing character of the site, and thus, alter the views that may exist over the project site, especially from immediately adjacent residences. Such “view alteration” would, however, occur with any type of land development. The project site is designated ‘IN-Institutional Use’, which could allow many uses far more intense and intrusive than the project.”
The second grounds for appeal, according to the White Road Property Owners Association, is that “The county planning commission failed to comply with the law to properly notify residents who would be directly affected. The planning commission report states that 25 hearing notices were sent out on April 3, 2014. The residents did not receive such said notices. This consequently denied residents the right to voice their position regarding the establishment of  this solar power plant.”
Hudson responded: “Public notices for the planning commission hearing of April 17, 2014, were mailed by first class mail on April 3, 2014, to all property owners of record within a 1,000-foot radius of the subject site, in compliance with Section 84.29.040 of the County Development Code. Additional notice was published in two local newspapers (the San Bernardino Sun and The Daily Press), both newspapers of general circulation in the project vicinity, and was posted outside the San Bernardino Government Center and the High Desert Government Center. All project materials have been made available for review on the county website as well. On occasion, it should be noted that some residents may not be owners of record and, thus,
may not have received a mailed notice. Interested area residents may reside beyond the official notice area. In the case of this project, approximately half the owners of record have addresses outside the local Phelan area. Any resident, owner or interested party may, however, be added to the notice mailing list upon written request.
In addition to public hearings, surrounding residents have had opportunities to comment in response to the initial project notice, and in response to the release of the initial study and mitigated negative declaration. The applicant has also held a number of meetings with area residents.”
According to the White Road Property Owners Association, the third grounds for appeal were that “SunEdison has failed to comply with mandated county policies regarding the establishment of renewable energy generation facilities as described in the amended ordinance Chapter 84.29 and Chapter 810.01.”
Hudson’s response was that “The project has been reviewed in accordance with all pertinent county policies, regulations, and procedures and has been found to comply with all requirements of the county development code, including Chapter 84.29, relating to the regulation of commercial solar energy generation facilities. Findings have been made in compliance with Sections 85.45.050 and 84.24.035 of the County Development Code, respectively addressing conditional use ermits and renewable energy projects. These findings are incorporated in the planning commission staff report dated April 17, 2014.”
The fourth grounds for appeal cited by the White Road Property Owners Association was that “SunEdison has failed to comply with Development Code Section 85.06.040 (3): The proposed use will not have a substantial adverse effect on abutting property or the allowed use of the abutting property, which means that the use will not generate excessive noise, traffic, vibration, or other disturbance. In addition, the use will not substantially interfere with the present or future ability to use solar energy systems.”
In responding to this, Hudson referenced his responses to the first and third appeal grounds and added, “To elaborate, CEQA establishes specific ‘thresholds of significance’ which include potential impacts from ‘noise, traffic, vibration, and other disturbance’. No significant adverse environmental impacts, as defined by CEQA, are anticipated with recommended mitigation measures. As such, the project complies with CEQA and Development Code Section 85.06.040 (3). Findings have been recommended in compliance with Sections 85.46.040 and 84.24.035 of the County Development Code, respectively addressing conditional use permits and renewable energy projects. These findings are incorporated in the planning commission staff report dated April 17, 2014. Further, no impairment to the allowed use of adjacent properties is anticipated. In fact, provision of a new graded road along the westerly property line will substantially improve access to abutting parcels, as well as area drainag e patterns.”
The fifth grounds for appeal cited by the White Road Property Owners Association was that “SunEdison has failed to comply with Development Code Section 85.06.040 (6).”
The association contended the project endangered the public health, safety, and general welfare of the community.
In his response, Hudson said that his responses to objections one, three and four addressed that contentions. Hudson declared, “In summary, staff believes that the claims in this appeal are not supported by substantial evidence and that the board should deny the appeal and approve the project.