County Hires Law Firm to Handle Litigation Involving Solar Power Companies

RIVERSIDE - The Board of Supervisors today retained a Costa Mesa- based law firm to defend Riverside County in a lawsuit filed by solar energy companies, which are challenging the validity of fees the county intends to impose on them.

In a 4-0 vote -- with Chairman John Tavaglione absent -- the board appropriated $300,000 for a contract with Murphy & Evertz LLP. Half of the funds will be available in the current fiscal year.

The attorneys have already been paid $25,000 for work related to litigation stemming from the civil suit instigated last month by the Independent Energy Producers Association and the Large-scale Solar Association.

The first hearing on the suit was held March 5 at the Indio Courthouse. Another status conference is set for March 28.

The Office of County Counsel recommended Murphy & Evertz, noting in a proposal to the board that the firm is ''uniquely qualified'' and has represented the county on ''numerous occasions.''

''Supervising partner, Douglas J. Evertz, is already familiar with the ... legal action because he has been providing representation in the pending case and related services,'' a preface to the contract states. ''He has 25 years experience specializing in both land-use and taxation law and has represented over 50 public agencies in high-profile litigation cases.''

The contract runs through June 2014.

The IEPA and LSA are suing to stop implementation of county board policy B-29 -- which county officials have referred to as a ''a significant public policy milestone'' -- enacted in November despite stiff opposition from solar industry representatives.

The policy requires that any solar power company -- with the exception of those producing 20 megawatts or less -- enter into development agreements and pay an annual $450 per-acre fee for access to public rights-of-way and for altering desert landscapes.

Critics have labeled it a ''sun tax,'' arguing that solar power companies cannot afford it.

According to the IEPA and LSA, the county's per-acre fee on solar companies requires voter approval because the fee, in fact, amounts to a tax, and under Proposition 26, all taxes must be voter-approved.

The plaintiffs also allege the assessment violates the state Mitigation Fee Act of 1987, which permits local agencies to charge developers a fee for the use of public services. However, according to the law, the fee must compensate for a specific project impact, and it must be reasonable.

If neither of those standards is clearly met, the fee can be declared a special tax, requiring voter approval.

''The money raised (from B-29) would go directly to the (county's) general fund rather than to mitigating any alleged impact,'' LSA Executive Director Shannon Eddy said last month. ''This is a sun tax, not a development fee.''

County officials have noted that photovoltaic projects consume space that might otherwise be used for farming, recreation and housing.

Separately, the Board of Supervisors today approved a $100,000 18-month contract with Orange-based attorney Robert L. Klotz for legal assistance implementing B-29.

County lawyers said Klotz's expertise in land-use and environmental law will be essential as current ordinances are modified to meet the objectives of the policy.

''Mr. Klotz served as a Riverside County deputy county counsel for eight years, during which time he drafted the county's development agreement procedures and requirements and created the county's first model development agreement,'' a preface to the contract states.