The Twentynine Palms City Council on March 23 denied E-Group Solar’s proposal to install 160,000 solar panels the company said are capable of generating 50 megawatts of electricity on 184 acres north of Two Mile Road and west of the Twentynine Palms Public Cemetery.
The decision sets up a showdown between the company, which has given indication it will make use of the legal leverage provided to it by Assembly Bill 205, and the city with regard to whether state law prioritizing clean energy projects requires that the city give, essentially automatic approval to the project.
The matter was complicated by the consideration that the property where E Group wants to build the project is not zoned for industrial scale solar energy projects. What E Group sought was for the city government to amend the Twentynine Palms general plan to establish the renewable energy (e) land use designation and rezone the property in question from that slated for rural living/low density residential development with 5-acre minimum lots to that intended for producing renewable energy, that it alter the property designation and zoning from residential use to renewable energy production use, that it add chapters to the city’s development code and that it approve a conditional use permit authorizing the development of a 184-acre commercial solar field project. In addition, E Group was asking the city council to approve a development agreement for development of the 184-acre commercial solar field project, that it certify an environmental impact report prepared for the project and that it adopt a statement of overriding considerations to the effect that despite some negative implications, impacts, complications and considerations with regard to the project, that the upside of producing renewable energy at the location outweighed them.
Under normal circumstances or those that were applicable prior to the 2022 passage of Assembly Bill 205, the city council, as Twentynine Palms ultimate land use authority, would have had absolute discretion with regard to the project. It would have been, on one hand, at absolute liberty to grant the application and utilize its ability to suspend the city’s code and general plan and make a zone change while signing off on any needed variances and environmental certifications to allow the project to proceed. At the same time, given that the proposal called for constructing an industrial solar power generating plant on land that was not zoned for that use and which was not in keeping with the uses designated for the property where E Group was asking to build it under the city’s general plan and its development code, the council, in its wisdom would have been within its purview to deny the project.
Assembly Bill 205 is aimed at prioritizing and facilitating the production of renewable energy. Among its provisions is a so-called accelerated permitting/opt-in program which allows proponents of renewable energy projects to bypass the land use authority of local jurisdictions in favor of having the California Energy Commission consider and approve such projects.
From the outset of its application with the city for approval of the project, E-Group Solar has insinuated that if the city did not give it go-ahead to proceed, it would trigger the overriding prioritization of clean energy projects provision in Assembly Bill 205 to force the issue, overcoming elements of Twentynine Palms general plan, development code and zoning code which prohibited placing a solar field in that particular location, on property owned by George Mulopulos. Mulopulos, through his company, has entered into an arrangement to lease that land to E-Group Solar, with the understanding it was to be utilized for constructing a solar energy field.
Substantial opposition to the project formed, particularly among residents who live in proximity to the site. In addition to the disturbance of the soil and the destruction of the habitat for native species in the area, residents and others objected to the incompatibility of having a large industrial scale energy facility in proximity to other less intensive land uses. There appeared to be a divergence among city officials with regard to the advisability of granting the land use and zoning variances and city code and general plan amendments to accommodate E Group or having the city stick to its standards that reserved the property for low intensity residential use. Issues relating to those differences were put on display and hashed out during the course of at least two planning commission meetings, amid suggestions that if the city did not go along with the plan, E Group would sue the city or appeal the decision to the California Department of Energy or both.
While advocates for the project have presumed E Group Solar, Mulopulos and their support network are determined to proceed with the undertaking and make full advantage of the prioritization of solar projects contained in Assembly Bill 205 to overcome the resistance of those who do not want an industrial solar project sited at that location, obtaining approval of the project through an appeal to the California Energy commission is not a slam dunk.
Assembly Bill 205’s accelerated permitting/opt-in program provision can be applied only for projects generating a minimum of 500 megawatts of electricity. A 500-megawatt (MW) solar farm typically requires between 2,500 and 5,000 acres of land, assuming a common industry average of five to ten acres per megawatt. While some high-efficiency setups may require less, it would be pushing the technical capability envelope to create a 500 MW facility on property of size less than 2,000 acres while accommodating panels, spacing for maintenance, and infrastructure.
The California Energy Commission has expanded authority to act as the lead agency for siting, offering a 270-day permitting timeline for eligible solar, wind, and storage projects over certain capacities.
At the level of the planning commission, commissioners Jessica Cure, Jim Krushat, and Alexander Garcia down against suspending the city’s zoning and development codes to allow the project to proceed, while Commissioner Max Walker sided with E Group. The city’s planning staff ultimately recommended that the city council go along with E Group and allow it to proceed with the erection of the solar plant.
At the March 23 council meeting, the city council, with the exception of Steve Bilderain, who did not participate because he resides near the proposed site, heard presentations from planning staff and E Group’s representative, Robert Smith, with regard to the project. City residents, who were present in large numbers, were given an opportunity to offer their input, but needed to confine their comments to two minutes rather than the normal three to prevent the meeting from running to as late as midnight. Adding to their burden, E-Group Solar spokesman Robert Smith gave indication that if the city did not give the project go-ahead, it would seek at the very least a rehearing on the matter before the California Energy Commission, potentially invalidating the city’s denial of the project if that were to occur.
That issue was itself complicated and complexified by at least two considerations. One of those was the question of whether the solar field would achieve the 500 megawatt generation threshold needed to qualify for having the California Energy Commission second guess the city council. The second was conflicting state mandates that in this case with regard to the land in question might be applicable. Another California law, Senate Bill 9 requires that local jurisdictions – cities and counties – make extraordinary efforts to overcome the state’s housing crisis by accommodating residential construction and refraining from discouraging the building of homes, duplexes, four-plexes, six-plexes, eight-plexes, 12-plexes, apartments and multifamily residences. By converting property that was zoned for residential use as well as placing an industrial scale energy plant next to other land zoned for residential use, Twentynine Palms might run the risk of defying the state with regard to its housing mandates and Senate Bill 9.
In this way, E Group’s threat of appealing the city council’s decision to the California Energy Commission did not have the punch that was intended. There was the possibility that the California Energy Commission might not hear the appeal at all if the project did not meet the 500 MW threshold. And even if Assembly Bill 205’s accelerated permitting/opt-in program provision were brought to bear, the city would have grounds to contest being forced to accommodate the power plant by claiming its adherence to Senate Bill 9 trumped Assembly Bill 205’s mandate.
Councilman Octavious Scott said the council was being put in the position of having to make a “tough” call, and he alluded to conflicting mandates and the city being pushed and pulled in different directions by the state as well as by the project proponent and the city’s residents. He said the meeting was an illustration of “democracy in action.” Scott said that Planning Commissioner Jim Krushat had pointed out that in 2012, the city had put a moratorium on large solar power projects into place.
He said that he wanted to “get on the record” that “we’re not lifting that moratorium” and that it was his position the city and city officials strive “to be consistent with the city’s general plan.”
Mayor Dan Mintz noted how contentious the issue was but complimented both sides in the debate for maintaining equanimity. “It was really important to have a civil meeting tonight, and make sure we could have some frank discussion.”
Mintz referenced the 2012 moratorium on solar power fields put in place by the city council as it was then composed. “I was on the council I 2012 when we voted this in and I had various reasons then,” he said. “When we made that decision at the time… [and] we discussed it, basically we were hoping that this we hoped someone would come in and start doing these [solar projects] east of town in the hills and the rocks where no one’s ever going to build,” where he said the closest neighbors would be the cement plant, the county dump and the desert race track. “Now we’re getting a lot more folks moving to Twentynine Palms and they’re building houses in remote areas. I’m a firm believer in a property owner being able to do something with his property but I’m also a firm believer that it effects people around them. I’ve struggled with this because when I asked Mr. Gardner [Twentynine Palms Community Development Director Keith Gardner] to show me all the lots around it, basically they were useless because no one’s going to want to build a house living in the city next to a bunch of solar panels.”
Mintz, alluding to the conflict between Senate Bill 9 and Assembly Bill 205, said, “I struggle with this. I don’t trust the state [in] what they’re going to do either way. It is almost like rolling the dice. It could go either way.” Approving the project, Mintz said, “is not something I could support.”
Councilman McArthur Wright made a motion to deny the project, saying, “Ever since I’ve been on this council, I always went by listening to the citizens.”
Wright said he contemplated the matter from all of its angles. “I had a long hard struggle,” he said. “I did a whole lot of reading. I read so much I think my eyes started crossing.”
Scott seconded his motion to deny the project.
Before the vote was made, Councilwoman April Ramirez said she was going to support E Group and George Mulopulos, the principal of the company leasing the land to E-Group because she did not want to run afoul of Assembly Bill 205.
“I struggle because I do not like making emotional decisions,” Ramirez said. “I am a person who likes facts, evidence trends and laws, case studies, if you’re talking bout medicine. My issue with this in general is AB 205 is what the people wanted. That is what the people voted for, for the State of California, number one. Number two, Dr. Mulopoos, your property is your property. You’re free to do what you want with it. It is your constitutional right. I have some people here telling me that I need to not sell out and where is my integrity. I have a really hard time weighing that when those same people talking about integrity can find themselves on Megan’s Law website. I do not make emotional decisions and the Constitution of America is the Constitution of America.”
-Mark Gutglueck