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Arterberry v. County of San Diego

March 23, 2010

WILLIAM C. ARTERBERRY, PLAINTIFF AND APPELLANT,
v.
COUNTY OF SAN DIEGO ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from an order of the Superior Court of San Diego County, Richard E. L. Strauss, Judge. Affirmed. (Super. Ct. No. 37-2007-00064601-CU-WM-CTL).

The opinion of the court was delivered by: McCONNELL, P. J.

CERTIFIED FOR PUBLICATION

Civil Code*fn1 section 714 prohibits a public entity from willfully delaying the approval of an application to install or use a solar energy system. (§ 714, subd. (e)(1).) William C. Arterberry, doing business as Farm ACW, appeals an order denying him attorney fees under subdivision (g) of section 714 in his action against the County of San Diego, the County of San Diego Department of Planning and Land Use, and Jeff Murphy (collectively the County), for damages caused by the County's delay in issuing a certificate of occupancy for the farm's solar energy system. Arterberry contends the trial court erred by finding subdivision (f) of section 714 immunizes a public entity from a private right of action for damages, and thus he cannot be the prevailing party under section 714 for purposes of an attorney fees award. The plain language of section 714, subdivision (f) shows there is no private right of action against a public entity, and thus we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Arterberry owns Farm ACW, a large avocado farm located in Fallbrook, California. In 2006 the farm constructed a one megawatt photovoltaic energy system to create electricity directly from sunlight. The system is intended to meet the majority of the farm's needs and to allow the farm to sell excess power to the utility company, adding to the state's energy supply during peak hours of demand.

It is undisputed that the County refused to conduct a final inspection or issue a certificate of occupancy for the solar energy system on the ground Farm ACW had not resolved outstanding code violations unrelated to the system. The County relied on section 51.0103.4 of San Diego County Code of Regulatory Ordinances, which provides that the "Building Official may suspend or refuse to issue any building permit... if the Building Official determines that there is a violation of this Ordinance or any other ordinance or regulation." (San Diego County Ord. No. 9040 (new series), § 51.0103.4.)

On April 6, 2007, Arterberry filed a verified petition for writ of mandate and complaint for injunctive relief against the County. Arterberry alleged the County, through the San Diego Regional Energy Office, offered significant rebates to private parties that install photovoltaic systems, and the "$7.8 million system planned by Farm ACW qualifies the farm for a rebate... of approximately $3.5 million"; to receive the rebate the system "must be permitted for connection to the local utility grid"; the County had a ministerial duty to inspect and permit the system, and Farm ACW repeatedly asked it to do so; but, the County refused to send an inspector or issue a final permit "until Farm ACW remedies alleged code violations at other buildings on [its] property." (Original italics.) The petition alleged that because the County had not performed its duty, the farm was unable to obtain a rebate or a permit, and was "incurring thousands of dollars per day in losses due to carrying costs and inflated utility bills."

Arterberry's theory was that several statutory provisions supersede San Diego County Ordinance No. 9040, section 51.0103.4. The petition cited Government Code section 65850.5, subdivision (a), which provides, "It is the policy of the state to promote and encourage the use of solar energy systems and to limit obstacles to their use." The petition also cited subdivision (b) of Government Code section 65850.5, which pertains to the administrative approval of applications for solar energy systems, and subdivision (e) of the statute, which provides that "[a]ny conditions imposed on an application to install a solar energy system shall be designed to mitigate the specific, adverse impact upon the public health and safety at the lowest cost possible."

Further, the petition cited Health and Safety Code section 17959.1, subdivision (a), which requires a city or county to "administratively approve applications to install solar energy systems through the issuance of a building permit or similar non-discretionary permit." Subdivision (b) of the statute prohibits a city or county from denying "an application for a use permit to install a solar energy system unless it makes written findings based upon substantial evidence in the record that the proposed installation would have a specific, adverse impact upon the public health or safety."

Additionally, the petition cited Civil Code section 714, former subdivision (e) (now subd. (e)(1)); Historical and Statutory Notes, 6A West's Ann. Civ. Code (2009 supp.) foll. § 714, p. 48), which provides: "Whenever approval is required for the installation or use of a solar energy system, the application for approval shall be processed and approved by the appropriate approving entity in the same manner as an application for approval of an architectural modification to the property, and shall not be willfully avoided or delayed."

The first cause of action prayed for a writ of mandate commanding the County to inspect the solar energy system and approve the system if it met required criteria. The second cause of action prayed for an injunction enjoining the County from "taking any retaliatory action against [Arterberry] for the bringing of this action." Further, Arterberry sought a damages award on both causes of action, and attorney fees under section 714, subdivision (g).

On April 17, 2007, the court scheduled a hearing for May 11 on Arterberry's request for an order requiring the County to inspect and approve the solar energy system. On or about April 26, however, the County inspected and approved the solar energy system. Arterberry asked the court to take the hearing off calendar because the County had performed as requested.

The County then demurred to the petition, arguing it and its employees are immune from liability for damages, and injunctive relief is unavailable because Arterberry did not allege any facts suggesting any retaliation. On June 6, 2007, Arterberry filed a first amended petition for writ of mandate and complaint for injunctive relief, which added a separate cause of action for damages under Government Code section 815.6, which contains no attorney fees provision.

The County demurred to the amended pleading on the same grounds it raised in its original demurrer. As to Arterberry's damages claim, the court overruled the demurrer on the ground he "has pled sufficient facts to overcome the immunities asserted by Defendants for purposes of the pleadings stage of the ...


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