On October 31, 2011, the California Farm Bureau Federation petitioned the Superior Court in Fresno County for a peremptory writ of mandate and filed a complaint for injunctive relief to force the County to reverse its recent cancellation of a Williamson Act contract. The County had canceled the contract to facilitate the development of the Westlands Solar Park. If built as envisioned, the Westlands Solar Park will cover approximately 30,000 acres and generate up to 2.7 gigawatts in renewable solar power.
Cal. Farm Bureau Fed’n v. Cnty. of Fresno, No. 11-CECG-03780 (Cal. Super. Ct.), is a notable clean-energy project challenge in two respects. First, unlike most other challenges to clean energy projects in California, this case does not involve the California Environmental Quality Act (CEQA), its federal law analogue (the National Environmental Policy Act or NEPA), or endangered species issues under California state laws or the federal Endangered Species Act (ESA). Second, the California Farm Bureau Federation is not the typical challenger. Environmental protection groups, such as the Center for Biological Diversity or the Sierra Club, and local community action groups have typically initiated challenges to utility-scale clean energy projects.
The Williamson Act, also known as the California Land Conservation Act of 1965, empowers local governments to contract with private landowners to restrict the use of the land to agricultural use. These contracts create binding and enforceable restrictions on the land, for both the landowners and the local government. A local government may cancel a Williamson Act contract if the cancellation is “consistent with the purposes” of the Williamson Act or if cancellation is “in the public interest”. In order to cancel a Williamson Act contract “in the public interest”, the local government must find that other public concerns “substantially outweigh” the objectives of the Williamson Act. In addition, the local government must find either (1) that there is “no proximate, noncontracted land” that is available and suitable for the proposed nonagricultural use or (2) that development of the contracted land would provide “more contiguous patterns of urban development” than development of proximate noncontracted land.
The California Farm Bureau Federation alleged that the Board of Supervisors for Fresno County violated the Williamson Act when it canceled a 90-acre portion of a 156-acre parcel protected by a Williamson Act contract. The Federation alleged that the Board of Supervisors failed to make the findings for cancellation required by the Williamson Act. The Federation also alleged that “prime” agricultural soil comprised the land at issue, not “marginal” land that may be more appropriate for solar power development.
Although CEQA, NEPA, and the ESA are the typical flashpoints for controversy over utility-scale clean energy projects, other laws—and other interests—can light the fire of litigation as well. Although the 90 acres at issue in this case represents less than one-half of 1% of the total acreage planned for this project, this case highlights the need to be finely attuned to the concerns of the local area when siting a project, including the importance of protecting the agricultural operations that are critically important to many Californians. Project proponents should consider siting projects to avoid interference with these contracts. The Westlands Solar Park appears to enjoy relatively broad support, but even a popular project can run into trouble even if only one established interest group opposes it.