Gonzalez v. Cnty. of Kern

• Decision Date: 27 July 2020
• Docket Number: F078306
• Court: California Court of Appeals Court of Appeals
• Parties: SANTOS GONZALEZ, et al., Plaintiffs and Appellants, v. COUNTY OF KERN, Defendant and Respondent.

SANTOS GONZALEZ, et al., Plaintiffs and Appellants, v. COUNTY OF KERN, Defendant and Respondent.

F078306

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

July 27, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BCV-17-100040)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Stephen D. Schuett, Judge.

Century Law Group and Karen A. Larson for Plaintiffs and Appellants.

Hogan Law, Michael M. Hogan; Margo A. Raison, County Counsel, and Andrew C. Thomson, Deputy County Counsel, for Defendant and Respondent.

-ooOoo-

Appellants Santos Gonzalez and Patricia Serna, who are married (together Gonzalez), and Jose Sanchez and Aracely Sanchez, who are also married (together Sanchez), each own real property in Rosamond, Kern County. Appellants together filed suit against Kern County (Kern); RE Astoria, LLC (Astoria); and First Solar Electric (California), Inc. (First Solar) alleging several causes of action pertaining to Astoria's construction of a 2,000-acre solar energy project (the project) near their properties. Appellants' fourth amended complaint (the complaint) included a cause of action for inverse condemnation against Kern only, and this was the only cause of action brought against Kern.

Appellants' inverse condemnation claim alleges that, although Astoria built the project and contracted with First Solar for construction services, Kern substantially participated in the project's planning and approval, and the project has substantially harmed their properties. The trial court sustained Kern's demurrer to the complaint on the grounds the complaint did not contain sufficient allegations (1) that the project was a public use or improvement for inverse condemnation purposes or (2) that Kern's activities regarding the project were a proximate cause of the harm to appellants' properties. A judgment of dismissal of the complaint as to Kern was thereafter entered, from which appellants appeal.

On appeal, appellants contend they have adequately pleaded a cause of action for inverse condemnation against Kern. We agree, and reverse the judgment of dismissal.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Because this case comes to us after the sustaining of a demurrer, we accept as true the well-pleaded allegations in the complaint. (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (Czajkowski).) We also consider matters that are judicially noticeable. (Ibid.) Thus, the following facts are drawn from the complaint's allegations as well as from matters the trial court judicially noticed.

Appellants Gonzalez purchased a certain parcel of land in Rosamond, Kern County, jointly as a married couple, in 2011. Appellants Sanchez purchased 100 acres of land that is divided into three parcels in Rosamond, Kern County, jointly as a married couple, in 2006.

At some time, Kern "recognized the public demand for cheap energy on a reliable basis." Additionally, the California Global Warming Solutions Act statutorily requiresKern to reduce emissions by 2020 "and to increase its energy for its citizens." Kern also recognized "the need to convert it resources including vast undeveloped flat lands, access to sun, and public easements into a reliable source of revenue."

Astoria is an international company constructing solar projects. At some point, Astoria "entered into a Memorandum of Agreement with Kern" for the construction of a "mutually beneficial 2,000-acre solar project in Kern."¹ Astoria and Kern agreed the project would "serve a public use and provide a public benefit" because it would generate energy for over 40,000 Kern County residents "on a reliable and less costly basis" and "provide Kern with millions of dollars of revenue on a reliable and continuous basis" as the generated electricity could be marketed to various power utility companies. Kern and Astoria described the project on their respective websites "as a major public project to be developed in four phases for the benefit of many residents."²

Kern recognized the project was compatible and consistent with the goals and policies listed in the "Energy Element of the Kern County General Plan." Specifically, the project would further Kern's policy of encouraging domestic and commercial solar energy uses to conserve fossil fuel and improve air quality, and furthered Kern's goal of positioning Kern as "a leader in energy production." Kern also noted the project is near Kern's existing utility transmission and infrastructure, thereby requiring minimal off-site improvements or impacts.

Kern "substantially participated" in the planning and development of the project in several ways. With respect to the preparation of an Environmental Impact Report (EIR) in compliance with the California Environmental Quality Act (CEQA), Kern did the following: (a) designated its Planning and Community Development Department as thelead agency to draft the EIR; (b) prepared and authorized the EIR; (c) prepared and issued several Notices of Preparation from years 2014 to 2016 advising property owners and other governmental agencies; (d) held public meetings and considered the input of participants; and (e) certified the final draft of the EIR.³

Regarding the project's public benefits, the complaint alleged:

"29. KERN concluded in public documents and at meetings at which the PROJECT was discussed that the ASTORIA PROJECT is a public use and provided a major public benefit for KERN'S residents by providing, inter alia, the following public benefits:

"(a). It would establish solar facilities and solar storage facilities large enough to produce and store a reliable and renewable source of electricity to the public in an economically feasible and commercially financeable manner that could be marketed to different power utility companies;

[¶] ... [¶]

"(c). It would result in emissions reduction by 2020 as required.

"(d). It would comply with the County's requirements for increasing energy use.

[¶] ... [¶]

"(g). It would use largely undeveloped land including that owned by KERN for the public benefit.

"(h). It would provide revenue."

Kern concluded in the final EIR that but for a few "scattered residences" the project would have a minimal impact since it would be constructed in a largely undeveloped area. The final EIR contained mitigation requirements for certain factors identified as potentially having significant environmental impact unless mitigated, but theEIR also stated the project would have some unavoidable "changes to the environment" that could not be mitigated. In the Notice of Determination, Kern stated the project in its approved form "will have a significant effect on the environment" and that mitigation measures were made as conditions of the project's approval.

The complaint further alleged:

"34. KERN conceded that in approving the PROJECT the County would have to balance the benefits to the public at large, including 175 megawatts of power, reduction of emissions, construction and permanent jobs, increase of sales tax, revenue vs the negative impact the PROJECT would have on the property rights of a few.

"35. But KERN deemed that the PROJECT as a whole served a public use with large benefit to the whole with possibly disproportionate negative impact on only a few.

"36. KERN approved the PROJECT because it decided that the Project is a legitimate public use. To wit, the PROJECT concerned the whole community and promoted Kern's general interest in relation to a legitimate object of government: The PROJECT would provide its 40,000 residents a reasonably priced and reliable source of electricity and its tax base an annual source of revenue.

"37. After approving the ASTORIA PROJECT and as demonstrative of the public use the project served KERN did all of the following:

"38. KERN vacated all of its public easements across the 2000 acres to ASTORIA that it needed for the PROJECT.

"39. KERN rezoned all of the land previously zoned agricultural to industrial commercial.

"40. KERN approved major changes to KERN's General Master Plan and Zoning Ordinance exclusively for the PROJECT.

"41. KERN granted 8 conditional uses to the PROJECT.

"42. KERN approved five zone changes.

"43. KERN granted private easements to ASTORIA."⁴

Astoria contracted with First Solar for construction of the project. Also, "Kern and Astoria contracted with First Solar to mitigate conditions resulting from the construction and from the project." Construction has commenced on the project, and such mitigation has not been implemented. The construction activities have resulted in continuously present severe glare as well as an ongoing problem of "dust and air particle contaminants entering [appellants'] properties." The dust and dirt cover appellants' homes and clog their air conditioning systems and vents.

First Solar has also "stripped" over 2,000 acres of vegetation from around appellants' properties and leveled the land to drain towards the dirt roads that provide access to their properties. When it rains, the dirt roads become difficult to traverse, and emergency vehicles are not able to access the roads until they dry up in the spring season. The project has also obstructed the vistas from appellants' homes, which has "substantially and permanently changed the existing visual character of the landscape."

Appellants explain the project has permanently and negatively impacted appellants' properties by causing: a permanent glare, permanent erosion patterns resulting in road flooding and impassibility, a loss of vegetation, reduction of scenic vistas and loss of view, ongoing dust and release of toxic pollutants, invasion of privacy, a substantial loss in marketability of their properties, a...