Mystery and clarity, conversely, attended both of the Twentynine Palms Planning Commission meetings held this month.
What emerged from both meetings was that a predominant number of the city’s residence are opposed to E-Group Solar’s proposal construct solar power field on roughly 172 acres between Canyon Road and Noel’s Knoll Road.
Shrouded in ambiguity is whether the E-Group Solar is on the verge of suing the city or has threatened to sue the city if approval of the project is not given. While there are indicators that is the case, city officials have given no confirmation that the company or its principals will resort to litigation if the project is denied.
While the planning commission generally meets on either the first or the third Tuesday of the month, this month it met on both February 3 and February 17.
The commission’s agenda for the February 3 meeting made no explicit mention of the solar power project. Nevertheless eight residents showed up at the meeting chamber to address the commission, and the gist of their comments pertained to the E-Group plan. The items specified on the agenda were ones that were not publicly discussed or dealt with by the commission, consisting of a matter or matters rarely considered by the planning commission, the potential of litigation. Under California’s open public meeting law, public panels/governmental board are in most cases required to meet in public subject to a published or posted agenda. Exceptions to that exist when the topic of discussion extends to personnel matters, labor negotiations, security matters, providing instructions to real property negotiators and conference with legal counsel regarding pending litigation. In virtually all such cases, such closed-door discussion involve an elected board such as a county board of supervisors, a town or city council, a fire board, water board or school board. The planning commission is not an elected panel but rather one that is appointed and which has no real authority in hiring or firing, meting out discipline to employees, purchasing or selling property or deciding whether to engage in/initiate litigation on behalf of the city or what to do if the city is sued.
The only item on the February 3 planning commission meeting agenda was the commission’s planned discussion with regard to “Anticipated Litigation, Significant Exposure to Litigation, Gov. Code Section 54956.9(d)(2) (2 cases).”
The protocol for public board meetings under the Brown Act is to allow the public to address the panel with regard to the topic scheduled for discussion, irrespective of whether that discussion takes place in public or not. That eight people brought up the E-Group solar project during their comments is an indication or evidence but not necessarily proof that the commission was going to hear from top administrative officials or perhaps the city attorney that E-Group is contemplating filing a lawsuit.
Such speculation is supported by both circumstance and past statements by E-Group corporate officials or the company’s representatives. In previous public discussions about the project, E-Group representatives have repeatedly referenced Assembly Bill 205, sometimes suggesting they would prefer not to utilize its provisions and would rather work with the city to expedite the approval process for the project.
Wile California Assembly Bill 205, which was passed into law by the California legislature and signed into law by Governor Gavin Newsom in 2022, does not explicitly grant solar developers an automatic right to sue if a project is not approved, it does lay out what is supposed to be a specialized, expedited, and streamlined state-level permitting pathway, via the California Energy Commission, allowing large-scale renewable energy projects to bypass local government opposition. The bill set strict, legally binding timelines for the approval process on such renewable energy projects, which could theoretically allow for legal action if those timelines are ignored.
Historically in California, land use decisions have, with only limited exceptions, been the province of local government. In recent years, however, lawmakers and the gubernatorial administration in Sacramento, including several state departments such as the Department of Housing and Community Development and the California Energy Commission, have issued mandates intended to force cities and counties to allow more housing units to be built or allow renewable energy projects to proceed. Generally, the state has taken the position that in any showdown over its authority and the authority of local governments and agencies, its authority takes precedence. Thus, whereas cities previously were able to set a whole host of standards relating to type of land use, zoning, type of housing, intensity and density of development, developers in recent years have legally contested local jurisdictions’ denial of their projects where they could argue that those local zoning, density or land use restrictions were out of step with the state mandates that such projects be facilitated or expedited. In most cases local governments, recognizing that the state has far greater monetary resources than cities as well as command over the court system, have not made a meaningful contesting of those mandates. Nevertheless, a full-scaled knockdown, drag-out fight between the state and a city on this issue, which would set a precedent and make a determination of the extent or limitations of such state mandates has yet to occur.
What many observers believe is that the planning commission was being told on February 3, most likely by the city attorney, was that it should move forward and approve the E-Group’s proposal so the city can avoid an expensive legal battle.
Interestingly, however, despite suspicions the city is being straitjacketed into accepting the placement of the solar field within city limits, the planning commissioners themselves, on balance at both the February 3 and February 17 meetings, left the impression that they are not ready to, and actually somewhat reluctant, to rubberstamp the solar project.
After spending most of the first 27 minutes and seven seconds of the February 3 meeting hearing public comment, the commission adjourned into a closed session, which lasted roughly 37 minutes and 40 seconds. Chairwoman Jessica Cure announced that no reportable action had been taken.
While all five of the commission members were present on February 3, on February 7, only Cure and commissioners Jim Krushat, Max Walker and Alexander Garcia were present. Commissioner Leslie Paahana was absent.
E-Group representative Robert Smith said the project would consist of 130,000 to 160,000 solar panels on ground-mounted solar panel racks that would be between six and ten feet above the ground with the panels set at fixed angle facing south.
Smith sounded confident that the entire solar field will generate 50 megawatts of electricity.
A recurrent them among those who addressed the commission was concern that the grading of the property would result in inducing valley fever in the population living in proximity to the plant.
Valley fever is caused by a soil dwelling fungus that can become airborne when an area where the fungus resides is scraped, graded or disturbed in circumstances where there are windy conditions with will circulated the spores so they are inhaled by humans or other mammals.
Peter Lang called upon the commission and the city to “shut down this big ugly plant,” saying the proposal “must not move forward as currently presented. The public and commissioners have not had adequate time to review what’s being approved. This is not a small permit. This package includes a developmental agreement, a conditional use permit, rezoning, and major general plan changes, hundreds of pages of complex environmental material and yet it was delivered only days before a vote over a holiday weekend. That’s not enough time for meaningful review. This decision will lock in permanent consequences. The development agreement grants vested rights. Once those are granted, the city loses leverage. Once rights are vested, the project becomes extremely difficult to change , even if impacts turn out worse than predicted. That’s not acceptable for granting permanent entitlements. The community benefits are modest and do not justify the overriding permanent harm. The applicant’s capacity and accountability are unclear. He grew up as a small foreign firm with no verified record of completing projects in the U.S. This will reshape our landscape permanently. The city should not approve a project of this scale with unresolved questions, inadequate responses and a rushed timeline. Slow down and demand complete answers.”
Aden Marshall, speaking on behalf of Citizens for Responsible Development, said, “We are asking the planning commission to continue this hearing to a later date until the project’s environmental review is actually complete. Tonight’s hearing is premature. The planning commission is being asked to recommend certification of a final environmental impact report when in fact it has not yet been prepared. The staff report confirms the city has not prepared responses to the 47 comment letters it received on the draft EIR. Mitigation measures and project alternatives are still being considered. Essentially, recommending approval under these circumstances violates CEQA [the California Environmental Quality Act].
Pat Flanagan said, “I take issue with the fact that they are doing massive grading and and then they say they will do habitat revegetation. They are not going to be able to reveg. Desert vegetation does not happen that easily. Go to any solar project where they said they would reveg and you will see it not to have happened.”
Russ Khan referenced the December decision by the California Energy Commission to uphold Shasta County in its denial of the Fountain Wind Project which contested Assembly Bill AB 205, “the same Assembly bill that E-Group has threatened to use if the City of Twentynine Palms does not approve their solar project in the city.” We have precedent. The reasons for denial was environmental and tribal concerns. I do believe that the City of Twentynine Plams has a great chance of getting this denied by the CEC.”
Gina Kohn said, “This industrial solar project poses a real and measurable threat to the health and welfare of our community. Clean energy is important but so is clean air. I urge you to prioritize the health and welfare of the people you represent.”
Mary Sherry said the endangered species survey the project proponent had done on the project property was inadequate.
“There are more than two desert tortoise in that area,” Sherry said. Sherry said the project would impact the viability of residential development on the adjoining parcel.
David Fick referenced past changes of ownership of solar projects in the region. He said that E-Group not having a power purchase agreement for the electricity to be generated constituted “a sketchy situation for going forward.”
Fick said the project would be water-use intensive requiring at a minimum 5,000 gallons of water per day to be used for subduing the dust from the project.
Fick said he did not believe the solar arrays would have the capacity to attain the 50 megawatts E-Group was claiming the project would provide. He calculated the the juice would be produced at the rate of five acres per megawatt, he said, “which puts them at 36 megawatts.”
Elliot Balsley said, “I’ve heard a lot of talk about this AB205 as a Plan B to circumvent the city’s wishes. Starting with their original presentation, they mentioned it two years ago. They say it’s Plan B and they don’t want to do it, but then why do they keep bringing it up, over and over again? It’s a threat. They’re trying to intimidate the city into capitulating because they know that we don’t want this project here. This AB 205 threat is a hoax, because they know it can’t qualify for AB 205 because it doesn’t generate the minimum 50 megawatts. This is going to generate 51 megawatts of DC power coming off the panels and 38 megawatts of AC power. Those numbers are not disputed. The question is: which number is used by the CEC for their measurement? Every power generating project is always measured in alternating current because that’s what connects to the grid.”
Carlos Blandon said the project would be better located a mile-and-a-half east where it would be contiguous with the more intensely developed areas
Ted Mayer said scraping 180 acres would inevitably result in the local population being afflicted with valley fever.
Jeff Johnson, said, “The terrain of this proposed project is not right for a very large solar field. It is quite a sizable watershed held together and secured by the roots of all the plants. It is difficult to imagine the volume of earth grading necessary to accommodate a solar field of any size, especially as large as this proposal. I wonder if the developers understand how at times water floods and moves tons of soil, especially on these slopes. Just because the developers purchased the land doesn’t mean our city should breach our ordinance, which was set in place to ensure the quality of these spaces within our city limits.”
Gretchen Grunt said the project would increase the degree of debris and dust in the air. “The mass grading is an environmental impact on its own,” she said. “In our case, the land is pristine soil. Vegetation, including creasote, provide habitat and forage for wildlife and provide breaks for water and wind. Many, many desert plants would be killed. Best practice for solar projects mandates using land that has been previously disturbed. We all know this has not been previously disturbed in any way shape or form. Biological crust holds soil grains in place, mitigating dust. Removing it is an environmental impact with permanent consequences.”
Kurt Keplar said, “I support solar power if it is responsibly planned and situated, but this proposed location couldn’t be more unsuitable for a large solar farm. Solar farms are almost always located on flat terrain, and for good reason. It minimizes the amount of soil disruption and maximizes sun exposure. The site for this project is made up of desert hills and washes with numerous rocky outcroppings It will require large sections of the desert to be bulldozed flat and graded. Mass grading would result in the removal of vegetation and desert crust that hold the earth in place.”
Perry Ford, speaking on behalf of the Sanctuary Church, which owns property at 4751 Adobe Road and 72254 Indian Trail and the Hope Center at 5792 Adobe Road in Twentynine Palms, said, “Clean and renewable energy projects like this will help protect the environment in the long run long term while also creating opportunities for people in the community to earn a living through good-paying local jobs. We are encouraged by the potential for this project to benefit the city, including funding that can support public services and infrastructure relied on by many of our local families. We also appreciate the developer’s intention to engage in the community, not just as a builder but as partner and member. From a faith perspective, thoughtful development that balances economic opportunity, environmental responsibility and community wellbeing is worth supporting.”
Heidi Heard said, “You need to stop letting developers decide the zoning of our city and start listening and asking the residents. Instead of denuding more land, why not put solar over parking lots?” She said the project was not right for the land it will be built upon, which, she said, is “zoned residential. It baffles me why we are letting this happen.”
Smith disputed the assertion that solar projects should only be build on idle property that has already been developed. He said E-Group had, at the city’s behest, already looked at alternative sites. Those locations were rejected because of their visibility from Joshua Tree National Park, shadows from the mountains would interrupt solar access and the the line carrying the power would have to go through several residential neighborhoods.
Only Commissioner Max Walker was sold on E-Group’s plan, saying the project itself and the incentives the company is offering, consisting of
With Walker dissenting, Cure, Krushat and Garcia voted to extend the commission’s examination of the project proposal before making a recommendation to the city council on whether it should certify an environmental impact report for the solar project.