To:         Chairperson and Members Board of Supervisors

From:     John Whisenhunt
               Assistant County Counsel

Subject:  Land Use Consistency Determination Relating to Florida Power and Light Power Plant CEC Application

    This memorandum is in response to a request from several Board members for clarification regarding the nature of the determination being requested of the Board of Supervisors in connection with the above-referenced application. There is currently pending before the California Energy Commission ("CEC") an application filed by Florida Power & Light ("FPL") for a natural gas-fired power plant on a 90-acre site in Rio Linda ("subject property"). Public Resources Code §25500 provides the CEC ("CEC") with the following authority over power plant siting:

" [T]he Commission shall have the exclusive power to certify all sites and related facilities in the state, whether a new site and related facility or a change or addition to an existing facility. The issuance of a certificate by the Commission shall be in lieu of any permit, certificate, or similar document required by any state, local or regional agency ... and shall supersede any applicable statute, ordinance, or regulation of any state, local, or regional agency. . ."

    The foregoing provision, therefore, grants the CEC the exclusive authority to certify all new power plants within the State and acts to supercede any local land use regulations to the contrary. However, Public Resources Code §25523 goes on to require a determination by the CEC as to whether a particular facility conforms to local regulatory requirements. To the extent there is not compliance with a local regulation, the CEC is required to meet with the local jurisdiction in an effort to correct or eliminate the noncompliance. If such noncompliance cannot be corrected or eliminated, the CEC is nevertheless authorized to approve the facility if it "determines that such facility is required for public convenience and necessity and that there are not more prudent and feasible means of achieving such public convenience and necessity." (Public Resources Code §25525.) Therefore, while the County has no direct land use authority with respect to proposals to site power plants, the CEC is required to determine whether a proposal is in compliance with the County's land use regulations and, if not, to make certain findings before approving the application. As part of the CEC permitting process, CEC staff has requested a determination by the County as to whether the proposed power plant is consistent with applicable County land use regulations.

    Prior to 1994, the subject property was zoned Industrial Reserve ("IR"). In 1994, Sacramento Ethanol Partners LLC ("SEPCO") proposed to construct a cogeneration facility on the subject property consisting of a power plant and an ethanol manufacturing plant. While a power plant was a conditionally permitted use in the IR land use zone [1], the ethanol manufacturing component of the project was allowed only in the M-2 land use zone. As a result, SEPCO applied for a rezone of the subject property to M-2 that was granted pursuant to a Zoning Agreement approved by the Board of Supervisors on February 1, 1995 ("Zoning Agreement"). The Zoning Agreement included a provision limiting development of the subject property "to a power plant and ethanol manufacturing facility."

    The CEC subsequently approved a permit for the combined power plant and ethanol manufacturing facility. However, this cogeneration facility was never constructed and the CEC permit eventually expired. FPL is now requesting CEC approval of a standalone power plant on the subject property. The issue presently before the Board is whether a stand-alone power plant is consistent with applicable County land use regulations. The determination of this issue turns, in part, on how the Board interprets the Zoning Agreement applicable to the subject property.

    It is important to emphasize at the outset that the rezoning of the subject property to M-2 and the resulting Zoning Agreement was strictly a function of the ethanol component of the SEPCO project. If the original project had not included the ethanol manufacturing plant, there would have been no need for the M-2 rezoning and the resulting Zoning Agreement. The change in the underlying zoning from IR to M-2, likewise, had no impact on the land use status of a power plant on the subject property since a power plant is a conditionally permitted use in both the IR and M-2 land use zones. As a result, any determination that a power plant is not a permitted use on the subject property would have to be based on the language of the Zoning Agreement.

    The Rio Linda/Elverta Community Planning Advisory Committee and other opponents of the project have argued that the Zoning Agreement prohibits the use of the subject property for any purpose other than as a combination power plant and ethanol manufacturing facility. While a literal reading of the language in question would arguably support this interpretation, such a conclusion ignores the context in which the Zoning Agreement was adopted. The language in the Zoning Agreement limiting the use of the property to a "power plant and ethanol manufacturing facility" is a reflection of the particular project that precipitated the underlying rezoning application. The purpose of the Zoning Agreement was to allow the ethanol manufacturing component of the project without authorizing any of the various other industrial uses that would otherwise be permitted as a matter of right in the M-2 land use zone. There is no reason to believe that the Zoning Agreement was intended to preclude conditionally permitted uses in the M-2 land use zone that by definition require further discretionary action in the form of a use permit. It is therefore our opinion that the Zoning Agreement does not serve to override those Zoning Code provisions authorizing a stand-alone power plant on the subject property as a conditionally permitted use.

    It is our recommendation that the Board make a determination as to whether the proposed stand-alone power plant is consistent with applicable County land use regulations. This determination will require two-steps. The first step is to determine whether the proposed power plant is consistent with the underlying zoning for the subject property; i.e.; whether a stand-alone power plant is a conditionally permitted use notwithstanding the Zoning Agreement.[2] If the Board determines that the proposed power plant is inconsistent with the applicable zoning for the subject property, no further Board action is necessary. However, if the Board determines the proposed power plant is a conditionally permitted use on the subject property, it will be required to make a further determination of consistency with applicable General Plan and Community Plan policies. Planning Department staff has outlined a process that identifies the relevant policies and would allow for the Board to make a tentative finding of consistency subject to development of appropriate conditions of approval and consideration of information contained in the environmental document prepared by the CEC. The Board would then make a final determination of General Plan and Community Plan consistency at such time as these conditions have been fully developed and the appropriate environmental document is available for review.
 

 /s/
JOHN F. WHISENHUNT cc: Tom Hutchings
     Tricia Stevens
     Leighann Moffitt
 

[1] The Planning Department classifies a power plant as a public utility use that is permitted in the IR land use zone subject to approval of a use permit by the County Planning Commission. (See Zoning Code Sections 201-02 (Table I D.36.), 201-04(17) and 301-13). Such a use is also a conditionally permitted use in the M-2 land use zone. (See Zoning Code Sections 230-11 (Table IV K.17.), 230-13(15) and 301-13).

[2] If the Board concludes that the proposed power plant is inconsistent with the underlying zoning for the subject property, the only defensible basis for such a conclusion would be an interpretation of the Zoning Agreement that strictly limits the use of the subject property to a combination power plant and ethanol manufacturing facility.

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