Judge Grants Request To Move Sun Tax Lawsuit to Riverside

An Indio judge today granted a request by Riverside County to move proceedings in a lawsuit filed against the county by two associations representing California power companies from Indio to Riverside.

The suit, filed by the Independent Energy Producers Association and the Large-scale Solar Association, alleges that a per-acre fee imposed on solar electricity providers is an illegal “sun tax.”

Attorneys for the county filed a motion on March 5 to transfer the case to Riverside, and Superior Court Judge Randall D. White granted the motion following a hearing at the Larson Justice Center in Indio.

White ruled that the county seat was a proper venue, according to court records.

The IEP and the Large-scale Solar Association, both Northern California- based, filed suit in the desert branch of county Superior Court on Feb. 3, asking that Board of Supervisors’ policy B-29 be invalidated.

The policy, approved by the board in November, requires that any solar power company — with the exception of those producing 20 megawatts or less — pay an annual $450 per-acre fee for access to public rights-of-way and for altering desert landscapes.

The fee was unanimously approved by the board despite resistance from solar industry representatives and an avalanche of criticism by union interests and some community leaders, who argued it would scare away prospective projects.

According to the IEP 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 pass muster with voters. Proposition 26, the “Stop Hidden Taxes” initiative, was approved on Nov. 2, 2010.

The plaintiffs also allege the imposition of the fee 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 associations further argue that the county is trying to override the state’s property tax exemptions provided to renewable energy producers by enacting per-acre fees.

The county Transportation and Land Management Agency originally proposed a $640 per-acre fee, while industry interests countered that a $140 assessment would be all they could afford.

Around 20 solar projects are in the works, planned within a 118,000-acre area extending east from Desert Center to Blythe.

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