Opposition To Motion For Order Enforcing Compliance With Peremptory Writ of MandateOppositionCal. Super. - 6th Dist.June 11, 2019AN Ln Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19CV 348838 Santa Clara - Civil OFFICE OF THE CITY ATTORNEY CITY OF SANTA CLARA BRIAN L. DOYLE, City Attorney, SBN 112923 bdoyle @santaclaraca.gov ALEXANDER E. ABBE, Assistant City Attorney, SBN 204782 aabbe @santaclaraca.gov 1500 Warburton Ave. Santa Clara, California 95050 Tel (408) 615-2230 Fax (408) 249-7846 THOMAS LAW GROUP TINA A. THOMAS, SBN 088796 tthomas @thomaslaw.com CHRISTOPHER J. BUTCHER, SBN 253285 cbutcher@thomaslaw.com ANNE L. BAPTISTE abaptiste @thomaslaw.com, SBN 299304 455 Capitol Mall, Suite 801 Sacramento, California 95814 Tel (916) 287-9292 Fax (916) 737-5858 Attorneys for Respondents and Defendants CITY OF SANTA CLARA Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/30/2020 2:35 PM Reviewed By: R. Nguyen Case #19CV348838 Envelope: 4215507 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA BLOOM ENERGY CORPORATION, a Delaware ) Case No. 19CV348838 corporation, ) Petitioner and Plaintiff, ) ) OPPOSITION TO MOTION FOR ) ORDER ENFORCING COMPLIANCE V. ) WITH PEREMPTORY WRIT OF ) MANDATE CITY OF SANTA CLARA, a municipal ) corporation; SILICON VALLEY POWER, anot- ) ACTION BASED ON CALIFORNIA for-profit municipal electric utility; and DOES 1) ENVIRONMENTAL QUALITY ACT through 10, inclusive Respondents and Defendants. Dept: 3 N r N r N e N e N e N e N e Petition Filed: June 11, 2019 Hearing Date: April 10, 2020 Time: 1:30 p.m. R. Ng OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE uyen ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. IOC ON] cum se cams svn om a cms am. sss i 0 24 55 24540 0 4.45 58 S055. FR ES 5 43 A Si 6 II. Factual Back@roUnd ..........cccuooiiiiiiiniiiiie cece eects sae sects sree saber eens 6 Au THE Labi GAO crim 5 cums swssan su snus suns on a acm ss avs sn 58 3555458 44005 0845 R63 53518 SHA 45.08 455545 SES 5.45 5A SAA 48 FAR 6 B. Judge Kuhnle’s Decision on the METIS ........coceeviiiiiiiiiniienie cece eee eer e e 7 C. The Writ Bid JUS SINGH. cur su umuss svn a xamsnss vss os wens sais 45.55 26505058 955355 03 24535545 E5558 55.45 558558 S085 48 ZR 7 D. The City’s Return t0 the WILL .....ccccooiiiiiiiiiiiiiiecie cece eects eres sree sere eee 8 E. The Intel Natural Gas: Fuel Cell PROJECT xu usm ss usuzs acussan sn sesuss svnnsss os casssasn ava ss i5asss seuss 4s sass 8 F. Bloom’s Third-Party Objection to the Intel Project Permitting Requirements............cccccccueenee. 8 IIT. Standard Of REVIEW :«: ss suuusss swsssas se sus svussss sa cas seis avs sm 50 5055558 5250554055 540055518 S5555 55 0 2055548 985 5.58 SHH SA 4 0 RETA. 9 TV ATZUIMEIT «conic eects eee eect ee sae see sates e essa ee sabe ease estes sae sube ease e snes sane eas 9 A. The “enforcement order” sought by Bloom exceeds the scope of the Writ and CEQA.............. 9 B. Non-party Intel is an indispensable party to the claim in Bloom’s Motion..........ccccccevveeunenee. 11 C. Neither Intel nor Bloom has exhausted administrative remedies .........c.ccevveeveeneenneenieeneene. 12 D. Bloom’s claim is premature-the City merely seeks compliance with City Code requirements for the Intel Project; it bas not. “banned” fg] cBllS wwe wmmssmmmememmsssmmmssmmsssamesmmsssmms 12 E. In compliance with City Code requirements, the City is processing - and will continue to process - all fuel cell project applications proposed within the City ..........cccceevveeniiiiciieennen. 12 1. The City has not determined that all fuel cells meet the definition of an electric power plant pursuant to the City COE ........oeiiiiriiiiiiiiiiee eects eects seers sees eaee 13 2. A plain reading of Section 18.060.010(e)(1) demonstrates that the Intel Project meets the City’s definition of ani electric DOWEL PLANE «cuss seuss so sssnsss sswsssn sn semanas awsmsss os susssss susan as swan 13 i. The Intel Project proposes equipment operated in connection with the production of CLECITICIEY ce eutteeuit tect etter este cette este eee ete e sabes eaat ee sates sabe ee sabe ee sabe ee sabe ee sanes 14 ii. The Intel Project proposes to use a source of thermal and steam .........c.ccceeeeeveereennnen. 14 iii. The Intel Project proposes a generation capacity of more than 500 kilowatts and less THATY SO TICE A ATES, x 50 sms sss sn.on wos 55555 5555555 5555557 94. 5553555 SHT5555.96 S45 5553 SHS55 5738 AHO3375 SRSH5 9049 3H535 16 3. Differences between natural gas fuel cells and “traditional power plants” do not allow the City to exclude natural gas fuel cells from the City’s definition of an electric power 5. The City’s prior failure to require a use permit for fuel cell projects does not compel - or even permit - the City to ignore the City Code’s plain language..........cccccevveenveeueeneennnen. 18 2 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE A N nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. The Intel Service Agreement provides no support for Bloom’s Motion ..........ccccceeveenveeneennen. Vo CONCIUSION teeta ee eee eee eee ee eee eee eee ee ee eee eee eee ee eee e eee ee ae aaa ease aa ee ee aaa ase esaaaeeeaenaeeennnaeeennaaaaes 3 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Page(s) Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 CalLAPP-Ath 455... e e eee e e estes sb eesebe ates bee sbee sabe a see esas esae eens 10 Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal. APP. 5th 880... etter eee ete ste eabeeee ete e sate sabe e eet ee shee eens 13 Browne v. County of Tehama (2013) 213 Cal APPA TOA coon rt testes ete sabe atest ee este sabe anaes bee esae eens 12 Cal. Teachers Ass'n v. Governing Bd. (1984) 161 CAL APD FU TID ssi cuson.n smn ons sn 0.550555055055.505555558 255557525 5555555555555 56 S557 E555 597.50 555558 SA 500555 11 Carroll v. Civil Service Commission (1970) 11 CAlLAPP-3A T27 eee eee eee este eae eters st ee sabe este este e see ebbe esas anne e see saae esse anne 10 Center for Biological Diversity v. Department of Fish & Wildlife (2016) 1 CalLAPP.StR 452... eee eee etter teste eater e este e sabes sae e sees bee esas sabe enns 10 Doe v. Albany Unified School Dist. (2010) 190 Cal APP.Ath G08 .......eeeeeeieieeeeee eee rt teste estes e est ee este esse esse e esas esas sane ennes 12 Estate of Madison {TOAS) 26 CAL ZL AST 15 mus ssn sissssis 9555555555550 515505570 355551 S005 508 R68 HSA FSA SA BA 19 Feduniak v. California Coastal Com. (2007) 148 Cal APPA 1346 cnet eee eerste eee st ee sate esate sees beesaae enna anne 19 Fontana v. Atkinson (1963) 212 CaALAPP.2A 499... eee eee etter sates beatae b ee eae esate sates bee esas sabe ennes 19 lone Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal. APP-STI 105 n ice eee eerste sete eae e tee t ae sabe esse esse esses esas enna anne 10 Lindstrom v. California Coastal Com. (2019) AD Cal ADSI TB) camino cusssnn ssn ons sn 0.550558055055.505555558 2550557555 5555555555555 56 S587 E555 59%.50 55558 SA 500555 13 Los Angeles Internat. Charter High School v. Los Angeles Unified School Dist. (2012) 209 Cal APP.Ath 1348... ete tee sates atest ee sbbe sabe anse estes shee esse eneennnees 9 Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Auto Ins. Co. (1983) 4603 U.S. 29... cies eee sees eset tees eta e estas esses eas aeesbaeesnsaeerssaeesssaeesnsaeessaeessreeessbeaenes 18 San Franciscans for Reasonable Growth v. City and County of San Francisco (1989) 209 Cal APP.3A 1502... eee eee et teeter eet ae sabes nbe esse esas esas enna anne 10 Siskiyou County Farm Bureau v. Department of Fish & Wildlife (201.5) 237 Calle APF. AUB ALN]. «ossin.n ssn ons sn swmsnse wns. on mm5ms 2550557555 5555555555555 56 555575 E55559750 555558 S5A035 5956555 19 Smith v. Duarte (1964) 228 CaALAPP-2A 267 neice ste eae eter st teste sabe e see e ste esate esata see e see eaae esse ennes 12 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Templeton Action Committee v. County of San Luis Obispo (201.4) 228 CAL ATA ALT sn.0 mms ssnsn so somos cwsssnoo505558 2555555.58 5055555 S45555% 18 5555557 55035.50. 3555 5508 $5 5555738 RATHER A555 11 Tower Lane Properties v. City of Los Angeles (2014) 224 Cal APP.Ath 202... eee eee etter sateen st ae sate seb e reat 13, 18 Statutes and Regulations Page(s) Government Code, Section 65000 EF SEQ veeuvvveennrreeriieeiie eters eres eee sees 11 Public Resources Code, Section 21000 €F SEQ. +veeuvreeenirieeireeeitee ete ee sites sre sie e esr ee as 10 21168.9, SUB: (BY sn. smssninsnssnsn is sumsnss swsmmmis msn ns 7,10, 11 21168.9, SUDA. (C).eevueeeeieriieeieeieeiee ciat 9,11 Cal. Code Regs., tit. 20, Section L1302(D)(14) neice eee eee 18 VFO NIA) ss usm summa o sess s535.30. 5358350 SHR3 30549 05555 18 L302(D)(57) weeeueeeeeeiie eects eee eee ees 18 1304(D)(2)(D) eevee eee eee 18 Miscellaneous Page(s) City Code section 18.06.0T0(€)(1)..cuueeuieiiiiiieiieeieeieetee rises eees 8,13, 14, 15, 16, 17 City Code section 18.60.050).........couriiiiiiiiiiie eects ete eters sabes sarees 8,12, 13,17 5 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LL Introduction Petitioner Bloom Energy Corporation’s (Bloom) Motion for Order Enforcing Compliance with Peremptory Writ of Mandate (Motion) is flawed both procedurally and substantively. The Peremptory Writ of Mandate (Writ) issued by Judge Kuhnle directs the City to set aside the City Council’s legislative act updating Silicon Valley Power’s (SVP) Rules and Regulations until such time as the City complies with the California Environmental Quality Act (CEQA). Bloom’s Motion, however, challenges an administrative decision of the City’s building division relating to application of the City Code to Intel Corporation’s (Intel) proposed 5-megawatt fuel cell project (Intel Project). This is an entirely different administrative act unrelated to the writ proceeding and involving wholly different legal considerations. Thus, the Motion - which purports to seek to enforce the Writ - addresses a matter and requests relief that far exceeds the scope of the Writ. For this reason alone, the Motion must be denied. Moreover, Intel is not a party to the underlying litigation and has not sought to intervene in this matter. Furthermore, neither Intel nor Bloom pursued any available administrative remedies before Bloom filed this Motion, and the Intel Project remains pending with the City. Finally, even if this Court considers the substantive merits of Bloom’s Motion, the City’s action is not a “Fuel Cell Ban”, as alleged by Bloom. The City is simply complying with the plain language of the City Code by requiring Intel to submit a use permit application for the Intel Project. Nothing more, nothing less. The City Code is not ambiguous. A fuel cell that meets the definition of an electric power plant (like the Intel Project) requires a use permit. Bloom’s Motion is meritless. II. Factual Background A. The Litigation On June 11, 2019, Bloom filed a Petition for Writ of Mandate (Petition) challenging the City’s approval of Resolution No. 19-8701 (Resolution). (Petition, {J 1, 11.) The Resolution amended SVP’s Rules and Regulations to mandate that SVP customers seeking to interconnect a new self-generation facility use a renewable electric generation facility. (/d. at q 1.) The City reasoned that the SVP grid emitted fewer greenhouse gases than non-renewable self-generation facilities. On that basis, the City concluded that the Resolution was exempt from CEQA. (Id. at 44.) As Bloom’s natural gas fuel cells are not renewable electric generation facilities, Bloom argued 6 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that the Resolution is a fuel cell ban and that the Resolution was not exempt from CEQA. (Petition, 47, 81.) Specifically, Bloom’s Petition includes two causes of action. (Id. at 87-104.) The first alleges that the City “violated CEQA by failing to perform any environmental analysis on the Resolution” and requested that the Resolution be set aside. (Petition, {{ 95, 99.) The second seeks a declaration that the City “violated CEQA by foregoing environmental review of the Resolution....” (Petition, 104.) B. Judge Kuhnle’s Decision on the Merits On January 9, 2020, Judge Kuhnle issued an eighteen (18) page Order on Bloom’s Petition (Order). (Declaration of Marc T. Campopiano in Support of Bloom’s Motion (Campopiano Decl.), Exh. E, pp. 149-166.) In the Order, Judge Kuhnle rejected Bloom’s argument that “the Resolution may impact the environment by increasing CO. emissions” because substantial evidence supported the City’s conclusion that average COze (i.e. greenhouse gas) emissions from Bloom’s natural gas fuel cells exceed emissions from SVP’s grid. (Id. at p. 165 [Order, p. 17]; see also id. at pp. 161-162 [Order, pp. 13-14].) However, Judge Kuhnle also found that the “Resolution may impact the environment by causing NOx and SOx emissions and related health, water quality, and noise impacts to increase, and by increasing reliance on diesel generators.” (Id. at p. 165 [Order, p. 17].) As a result, Judge Kuhnle concluded that “the Resolution - the activity in question - may have a significant effect on the environment.” (/d. at p. 166 [Order, p. 18] (emphasis added).) Consistent with Bloom’s Petition, the Order does not address issues beyond the adequacy of the City’s CEQA compliance for the Resolution. C. The Writ and Judgment On February 10, 2020, Judge Kuhnle entered a Judgment Granting Petitioner’s Petition (Judgment). (Campopiano Decl., Exh. E, pp. 146-147 [Judgment]; id. at pp. 168-169 [Writ].) The Judgment directs a Writ to issue requiring the City to (1) void the Resolution and (2) stop enforcing the Resolution unless reapproved in compliance with the Writ and CEQA. (Id. at p. 147 [Judgment, 2].) It also explains that the “Court shall retain jurisdiction pursuant to Public Resources Code section 21168.9, subdivision (b).” (Ibid. [Judgment, {4].) In addition, the Writ states that, “this Writ does not direct [the City or SVP] to exercise their lawful discretion in any particular way.” (Id. at p. 169.) By separate filing, the City requested that this matter be returned to Judge Kuhnle because he expressly retained continuing jurisdiction; however, the City does not “object” to Judge Lucas hearing the matter. 7 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. The City’s Return to the Writ On March 4, 2020, the City filed Respondents’ Initial Return to the Writ (Return) explaining the manner in which the City complied with the Writ. Specifically, the City’s Return explains that (1) “[u]pon issuance of the Writ, the City immediately stopped enforcing [the] Resolution”; (2) on February 25, 2020, the City adopted Resolution No. 20-8812, which removed all requirements previously implemented by the Resolution at issue in the underlying litigation; and (3) the City commenced further environmental review of the policies previously implemented by the Resolution. (Return, p. 2.) E. The Intel Natural Gas Fuel Cell Project On October 17, 2019, Intel submitted a building permit application for the 5-megawatt Intel Project. (Declaration of Edwin Pho in Support of Bloom’s Motion (Pho Decl.), Exh. D; Motion, p. 9:23- 24.) Based on City staff’s review of the application, the City’s building division determined that the Intel Project meets the definition of an electric power plant pursuant to City Code section 18.06.010(e)(1). (Pho Decl., | 13; Declaration of Kevin Kolnowski in Support of City’s Opposition (Kolnowski Decl.), {4.) City Code section 18.60.050 requires a property owner to obtain a use permit in order to operate an electric power plant. (Campopiano Decl., Exh. F, p. 172.) Thus, on February 11, 2020, the City’s Director of Community Development (Development Director) informed Intel that a use permit is required for the Intel Project. (Pho Decl., Exh. D, p. 30 [City e-mail to Intel].) To date, Intel has not submitted a use permit application for the Intel Project or filed an administrative appeal of the Development Director’s determination. (Kolnowski Decl., 6-7.) F. Bloom’s Third-Party Objection to the Intel Project Permitting Requirements On February 18, 2020, Bloom sent a letter to the City objecting to the Development Director’s determination that the Intel Project requires a use permit. (Campopiano Decl., Exh. A, pp. 6-9 [Bloom Letter]; Declaration of Christopher J. Butcher in Support of City’s Opposition (Butcher Decl.), 3.) In Bloom's letter, Bloom demanded that the City “approve Intel’s interconnection application” or else Bloom would “file an ex parte application with the Santa Clara Superior Court by the end of this week....” (Campopiano Decl., Exh. A, p. 7 [Bloom Letter, p. 2]; Butcher Decl., {4.) Shortly thereafter, Bloom’s counsel informed the City’s counsel that Bloom intended to make an ex parte appearance on Monday, February 24, 2020. (Butcher Decl., {[5, Exh. 1 [Email from J. Arnone].) 8 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On February 21, 2020, the City sent a letter to Bloom explaining why the Intel Project meets the City’s definition of an electric power plant. (Campopiano Decl., Exh. B, pp. 11-102 [City Letter]; Butcher Decl., 6.) The City also explained that, because Intel - not Bloom - is the property owner, “the City recommends that Intel Corporation address its concerns [if any] with the City directly.” (Campopiano Decl., Exh. B, p. 12 [City Letter, p. 2]; Butcher Decl., 6.) On February 22, 2020, Bloom informed the City that it would not make an ex parte appearance on February 24, 2020. (Butcher Decl., { 7, Exh. 2.) Instead, Bloom stated that it would follow up with the City on February 24, 2020 to discuss the matter further in an effort to avoid judicial involvement. (Ibid.) However, Bloom did not follow up with the City on February 24, 2020 or after. (Id. at 7.) Aside from filing two public records act requests, the next time the City or its counsel heard from Bloom regarding this matter was three weeks later on March 16, 2020 when Bloom served the City with the Motion. (Id. at q 8.) Despite this three week delay by Bloom, Bloom refused to stipulate to any continuance of the hearing during the COVID-19 crisis notwithstanding that, based on this Court’s General Order re: Implementation of Emergency Relief, the current April 10, 2020 hearing is less than 16-court days from Bloom’s filing of the Motion. (Id. at |] 10-11.) III. Standard of Review When considering a challenge to a lead agency’s compliance with a writ, a court should focus on the agency’s response to the writ. (See Los Angeles Internat. Charter High School v. Los Angeles Unified School Dist. (2012) 209 Cal. App.4th 1348, 1355 (LA High).) A court should uphold the agency’s action “unless it is devoid of evidentiary support.” (Ibid.) Furthermore, CEQA does not “authorize[] a court to direct any public agency to exercise its discretion in any particular way.” (Pub. Resources Code, § 21168.9, subd. (c).) “Where, as here, the statute leaves room for discretion..., [courts] must determine whether the action taken by the [agency] pursuant to the writ was ‘so palpably unreasonable and arbitrary as to indicate an abuse of discretion as a matter of law.”” (LA High, supra, 209 Cal.App.4th at pp. 1355-1356 (citation omitted).) IV. Argument A. The “enforcement order’ sought by Bloom exceeds the scope of the Writ and CEQA. The Court’s Order and associated Writ and Judgment concern the City’s compliance with CEQA 9 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in approving the Resolution. (See supra Section 1.B-C.) Bloom’s Motion seeks to improperly extend the scope of the Writ beyond the Resolution (i.e. “the activity in question” [Order, p. 18]) in an effort to control the City’s discretion as to a separate project proposed by Intel. (Motion, p. 6:9-11.) Bloom suggests that extending the Writ to cover the City’s processing of the Intel Project is appropriate because requiring Intel to obtain a use permit “is de facto enforcement of the Fuel Cell Ban” (Motion, p. 6:12-13) and “this Court ruled that the City’s Fuel Cell Ban was illegal....” (Motion, p. 17:9- 10). Preliminarily, in asserting that the Court ruled that a Fuel Cell Ban is illegal, Bloom does not include a citation to Judge Kuhnle’s Order, Judgment or Writ. (Motion, p. 17:9-10.) The reason for this omission is simple. Judge Kuhnle’s Order, Judgment and Writ do not conclude that the City imposed a “Fuel Cell Ban” or that such a “Ban” would be illegal. Instead, consistent with the causes of action in Bloom’s Petition (Petition, 87-104), Judge Kuhnle’s Order, Judgement and Writ focus solely on the adequacy of the City’s CEQA compliance for the Resolution (i.e. “the activity in question” [Order, p. 18]). Statutory remedies allowed under CEQA do not include the enforcement action sought by Bloom. Public Resources Code section 21168.9, subdivision (b), provides that a writ issued pursuant to CEQA “shall include only those mandates which are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division.” (Emphasis added; see also Center for Biological Diversity v. Department of Fish & Wildlife (2016) 1 Cal. App.5th 452, 459 [CEQA “limits the authority of a court to ‘include only those mandates which are necessary’ to achieve compliance with the California Environmental Quality Act (§ 21000 et seq.).”]; Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 480 [retained jurisdiction pursuant to CEQA “is limited to ensuring compliance with the peremptory writ of mandate]; lone Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165, 173 [writ requiring agency to bring a decision into compliance with CEQA did not require the agency to address issues not raised in the underlying litigation]; San Franciscans for Reasonable Growth v. City and County of San Francisco (1989) 209 Cal.App.3d 1502, 1517-1518 [same].) Even outside the context of CEQA, all orders issued by a court to enforce compliance with a writ must be consistent with the terms of the writ. (See, e.g., Carroll v. Civil Service Commission (1970) 11 Cal.App.3d 727, 733-734 [enforcement order reversed where it went far beyond terms of original writ]; 10 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 see also Cal. Teachers Ass'n v. Governing Bd. (1984) 161 Cal.App.3d 393, 400 [explaining relief requested would be properly denied if “outside the scope of ‘enforcement’ of the writ].) Here, Bloom’s Motion asks this Court to intervene in the City’s processing of the pending Intel Project application. (Motion, p. 20:4-5.) This request has absolutely no relationship to the City’s compliance with CEQA in approving the Resolution. The Resolution and the Intel Project are clearly separate activities. While the Resolution amended SVP’s Rules and Regulations relating to interconnecting self-generating facilities to SVP’s electrical grid, the Intel Project is a land use project - a natural gas fuel cell project - proposed by non-party Intel. (See Kolnowski Decl., { 8.) An order directing the City to exercise its discretion in a particular manner as to the Intel Project is not “necessary” to ensure that the City’s Resolution “achieve[s] compliance with” CEQA. (See Pub. Resources Code, § 21168.9, subd. (b).) Bloom’s attempt to challenge the City’s land use permitting process for the Intel Project as a Writ enforcement action in this litigation far exceeds the scope of the Order, Writ, and the plain language of Public Resources Code section 21168.9, subdivision (b). Moreover, as explained in the Writ, CEQA does not authorize a “court to direct any public agency to exercise its discretion in any particular way.” (Pub. Resources Code, § 21168.9, subd. (c).) Yet, that is precisely what Bloom seeks. Bloom requests that this Court direct the City to exercise its discretion on the Intel Project in a particular way by prohibiting the City from requiring a use permit for the Intel Project and requiring the City to approve the Intel Project. (Motion, p. 20:4-5.) Such relief may be pursued by Intel under a separate Planning and Zoning Law claim (Government Code section 65000 et seq.) after Intel exhausts its administrative remedies. In the underlying litigation, however, Bloom exclusively challenged the City’s approval of the Resolution pursuant to CEQA. (Petition, Jq 87-104.) Thus, Bloom’s Motion seeks relief that is unavailable based on the causes of action raised in its Petition. B. Non-party Intel is an indispensable party to the claim in Bloom’s Motion. Bloom filed this Motion in response to the City informing Intel that the Intel Project requires a use permit. (Motion, p. 6:9-11.) Intel is not a party to the underlying litigation resulting in Judge Kuhnle’s Writ. For this additional reason, Bloom’s request for this Court to intervene in the City’s land use permitting process for the Intel Project is improper. As the property owner pursuing the Intel Project, Intel is an indispensable party in litigation relating to the Intel Project. (See Templeton Action Committee 11 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. County of San Luis Obispo (2014) 228 Cal. App.4th 427, 431 [“when a plaintiff seeks affirmative relief that would injure or affect a third person’s interest, the third person is an indispensable party”].) C. Neither Intel nor Bloom has exhausted administrative remedies. A “party must first exhaust administrative remedies before seeking a writ of mandate to compel agency action.” (Doe v. Albany Unified School Dist. (2010) 190 Cal. App.4th 668, 685.) Here, to exhaust administrative remedies, Intel - as the property owner pursuing the Intel Project - should either file a use permit application to allow the City to take final action on the project or file an administrative appeal of the Development Director’s determination regarding the City Code requirements. (See Kolnowski Decl., q 6-7; Butcher Decl., Exh. 5.) As Intel has not pursued either administrative remedy, Intel (and by extension third-party Bloom) cannot pursue a judicial remedy relating to the City’s processing of the Intel Project. (See, e.g., Smith v. Duarte (1964) 228 Cal. App.2d 267, 269-270 [property owners did not have standing to challenge a zoning ordinance because they failed to exhaust administrative remedies].) D. Bloom’s claim is premature-the City merely seeks compliance with City Code requirements for the Intel Project; it has not “banned” fuel cells. Even if the Writ and Judgment could be interpreted to expand beyond a CEQA challenge to the Resolution to prohibit any action by the City that results in a “Fuel Cell Ban” (i.e. “prevent[s] installation of new [natural gas] Fuel Cells”) (Motion, p. 6:27-28), the City has taken no such action. The City has not refused to process applications for fuel cell projects. The City merely informed Intel that the Intel Project meets the City’s definition of an electric power plant and, therefore, requires a use permit. Requiring that a developer, such as Intel, comply with zoning requirements “is clearly not a ban.” (Browne v. County of Tehama (2013) 213 Cal.App.4th 704, 721 [explaining that an ordinance regulating the quantity and location of marijuana cultivation did not constitute a ban on cultivation].) Thus, the very premise of Bloom’s Motion - that the City’s request that Intel submit an application for a use permit “is de facto enforcement of the Fuel Cell Ban” (Motion, p. 6:12-13) - is incorrect as a matter of law. E. In compliance with City Code requirements, the City is processing - and will continue to process - all fuel cell project applications proposed within the City. The City Code provides that in specified zoning districts a use permit is required to operate an electric power plant. (Campopiano Decl., Exh. F, p. 172 [City Code, § 18.60.050].) Bloom does not dispute the fact that the City Code requires a use permit for an electric power plant. (Motion, p. 12:11- 12 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 [*“Municipal Code Section 18.60.050 requires use permits for ‘the construction or operation of electric 999 power plants.””’].) Instead, Bloom argues that “[t]he Municipal Code’s use permit provision for ‘electric power plants’ does not apply to fuel cells.” (Id. at p. 12:3-4.) As demonstrated below, Bloom is incorrect. 1. The City has not determined that all fuel cells meet the definition of an electric power plant pursuant to the City Code. The City’s Development Director informed Intel that the Intel Project requires a use permit. (Pho Decl., Exh. D, p. 30.) This determination was made in the context of, and based on, an evaluation of the Intel Project as proposed by Intel and the City Code. (Ibid.; see Kolnowski Decl., 4.) As with all project applications submitted to the City, the City will review any natural gas fuel cell project application submitted by an applicant on its own merits. Depending on the scope and scale of a natural gas fuel cell project, the project may or may not meet the City’s definition of an electric power plant. For example, as discussed further in Section IV.E.2.1ii below, a natural gas fuel cell project with a generating capacity of less than 500 kilowatts or more than 50 megawatts does not meet the City’s definition of an electric power plant. As a Bloom fuel cell project can be configured to have a generating capacity of as little as 300 kilowatts (Pho Decl., 14) or as large as “many tens of megawatts” (Campopiano Decl., Exh. B, p. 99), a fuel cell project could be proposed - based on generating capacity alone - that does not meet the City’s definition of an electric power plant. 2. A plain reading of Section 18.060.010(e)(1) demonstrates that the Intel Project meets the City’s definition of an electric power plant. The City and Bloom agree that the City’s definition of an electric power plant is not ambiguous. (Motion, p. 15:10-12.) For this reason, the court “need not resolve” the appropriate level of deference to afford to the City. (Lindstrom v. California Coastal Com. (2019) 40 Cal.App.5th 73, 96.) “When the intent is unambiguous, the plain meaning controls and there is no need for construction.” (Tower Lane Properties v. City of Los Angeles (2014) 224 Cal. App.4th 262, 269 (Tower Lane); Motion, p. 15:10-12.) City Code section 18.060.010(e)(1) defines an electric power plant as: [A]ll equipment, fixtures, and personal property operated or maintained in connection with "However, should this Court conclude that the definition is ambiguous, the “[Clity’s interpretation of its own ordinance ‘is entitled to great weight unless it is clearly erroneous or unauthorized.” (Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal. App. 5th 880, 896.) As discussed further, infra Section IV.E.5, Bloom’s claim that the City is owed no deference because it has invented a new interpretation of its City Code is meritless. 13 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 production of electricity using any source of thermal, steam, wind, or solar energy with a generating capacity of more than five hundred (500) kilowatts and less than fifty (50) megawatts, including all conduits, ducts, or other devices, materials, apparatus, or property used or to be used for the transmission of the electricity so produced. As demonstrated by the plain language above, the City’s definition of an electric power plant has three elements. An electric power plant includes: (1) All equipment, fixtures, and personal property operated or maintained in connection with production of electricity; (2) that uses any source of thermal, steam, wind, or solar energy; and (3) that has a generation capacity of more than 500 kilowatts and less than 50 megawatts. (City Code, § 18.060.010(e)(1) (emphasis added).) As demonstrated below, the Intel Project meets all three elements of the City’s definition. i. The Intel Project proposes equipment operated in connection with the production of electricity. Bloom acknowledges that the Intel Project proposes to “produce electricity...” (Motion, p. 12:20-22.) Bloom also admits that its fuel cell projects require installation of equipment, fixtures or personal property. (Declaration of Joseph Hower in Support of Bloom’s Motion (Hower Decl.), { 10 [providing a picture of the equipment included in “[a]n array of 42 Bloom fuel cells”].) Thus, the Intel Project meets this first portion of the City’s definition of an electric power plant because the Intel Project consists of “equipment, fixtures, and personal property” that will be “operated or maintained in connection with production of electricity.” (City Code, § 18.060.010(e)(1); Declaration of Thomas Cameron in Support of the City’s Opposition (Cameron Decl.), | 15.) ii. The Intel Project proposes to use a source of thermal and steam. Bloom argues that the Intel Project does not meet the City’s definition of an electric power plant because it does not use steam and heat as “the source of the electricity generation.” (Motion, p. 13:4-6; Hower Decl., 9.) However, the City’s definition is not limited to technology in which steam and heat are the “source of the electricity generation.” The City’s definition only requires that the equipment, fixtures, or personal property operated or maintained in connection with the production of electricity use “any source of thermal, steam, wind, or solar energy....” (City Code, § 18.060.010(e)(1).) The Intel Project meets this definition because, as Bloom admits, “Bloom’s fuel cells use steam and heat, which are byproducts of the fuel cell process, to convert natural gas into the hydrogen that is 14 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 used to actually generate the electricity.” (Hower Decl., 9; see also id. at | 16 [“steam and heat are used to convert natural gas into the hydrogen needed for a fuel cell to generate electricity”’].) Without the use of “heat (thermal) and steam” the Intel Project could not make the “feedstock” necessary for it to generate electricity. (Declaration of Kit Bowen in Support of Bloom’s Motion (Bowen Decl.), | 4- 5; Campopiano Decl., Exh. B, pp. 90 [a Bloom Natural Gas Fuel Cell Facility “generate[s] both electrical energy as well as steam and useful heat that are then used in the Facility to produce hydrogen]; id. at p. 87 [“Bloom’s Facilities utilize heat and steam”]; Declaration of Brewster Birdsall in Support of the City’s Opposition (Birdsall Decl.), 9; see Kolnowski Decl., 4b; Cameron Decl., 12.) Bloom attempts to carve the Intel Project out of the definition by arguing that only the “reforming portion of the device involves heat (thermal) and steam....” (See, e.g., Motion, p. 14:18-23; see also Bowen Decl., { 5; Birdsall Decl., 7.) However, the City Code adopts the 2019 California Electrical Code definition of a “fuel cell system” which includes “[t]he complete aggregate of equipment used to convert chemical fuel into usable electricity and typically consisting of a reformer, stack, power inverter, and auxiliary equipment.” (Kolnowski Decl., {4a (emphasis added). Butcher Decl., Exh. 6.) This definition is logical. Bloom's fuel cells are an integrated “pre-packaged, natural gas-fueled ‘Stationary Fuel Cell Power Systems’....” (Birdsall Decl., 4-5.) Thus, “[t]he complete power system integrates the hydrogen-powered fuel cells with other equipment to produce electricity from the methane in the natural gas.” (Id. at | 5; see also Cameron Decl., { 12-13 [“[F]uel cell power plants are not evaluated as individual process components. ... The methane reformer and solid oxide fuel cell form an interdependent, not independent, system in the fuel cell power plant”].) Based both on the City’s definition of a “fuel cell system” - which includes the “complete aggregate of equipment” (Kolnowski Decl., | 4a) - and the City’s definition of an electric power plant - which includes “all equipment, fixtures, and personal property” (City Code, § 18.06.010(e)(1)) - the plain language of the City Code requires the City to consider whether the integrated system meets the definition. (Emphasis added.) Moreover, “[bJecause Bloom’s natural gas-to-hydrogen fuel cell power systems require thermal energy and steam to produce the hydrogen feedstock, the reforming portion of the system is fundamentally connected with the production of electricity.” (Birdsall Decl., 9; see Cameron Decl., 12-13; Kolnowski Decl., §4b.) Given the integral role of the reformation process used by some fuel cells, 15 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in characterizing performance efficiency of fuel cells, the American Society of Mechanical Engineers considers both the electrochemical cells and the associated subsystem including any fuel processor or reformer when characterizing the performance efficiency of fuel cells. (Birdsall Decl., 10.) Finally, Bloom’s interpretation of the City Code - to disaggregate different functions within Bloom’s complete system - could be used to exclude many electric power plants from the City’s definition. (Kolnowski Decl., { 5.) For example, traditional gas turbines or steam power plants use thermal or steam energy to rotate a turbine; the turbine, in turn, drives electric generators to generate electricity. (Ibid; Hower Decl., {q 11-14.) Thus, these traditional power plants use thermal or steam energy as a step (rotating a turbine) in the process leading up to the function of driving the electric generator. (Kolnowski Decl., 5.) Using thermal energy is just one of the many steps that occur together to achieve the ultimate goal of generating electricity. (/bid.; see also Birdsall Decl., {{ 6, 9; Cameron Decl., 12, 15.) In this way, the Intel Project is similar to a traditional power plant, as it proposes to use thermal or steam energy as a step (hydrogen reformation) in the process required by the Intel Project to generate electricity from the fuel cell. (Kolnowski Decl., { 5.) Therefore, as proposed, the Intel Project meets the City’s definition of an electric power plant because it uses steam and thermal energy in the process of producing electricity. (Ibid.; see City Code, § 18.060.010(e)(1); Cameron Decl., | 15.) iii. The Intel Project proposes a generation capacity of more than 500 kilowatts and less than 50 megawatts. The Intel Project consists of a fuel cell array with a S-megawatt generating capacity. (Motion, p. 6:18-19.) Therefore, the Intel Project proposes a generating capacity that is within the range (i.e., 500 kilowatts to 5 megawatts) necessary to constitute an electric power plant pursuant to the City Code. (City Code, § 18.060.010(e)(1); see Kolnowski Decl., { 4c.) Bloom attempts to avoid Intel’s express request to install a 5-megawatt fuel cell project by suggesting that the Intel Project is made up of many fuel cells and that the individual fuel cells included within the Intel Project each only have three hundred (300) kilowatts of generating capacity. (Motion, p. 14:5-7.) Even if each individual fuel cell included within the Intel Project has a generating capacity of under 500 kilowatts as asserted by Bloom, the Intel Project would still meet the City’s definition of an electric power plant because the Intel Project has a total generating capacity of 5 megawatts. (Motion, 16 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 p. 6:18-19; see Kolnowski Decl., { 4c.) This conclusion is mandated by the plain language of the City Code, which provides that an electric power plant includes “all equipment, fixtures, and personal property” making up the project. (City Code, § 18.060.010(e)(1).) In other words, when evaluating whether a project - no matter if it is a fuel cell or a solar array - meets the City’s definition of an electric power plant, the City does not consider the generating capacity of a single fuel cell or single solar panel. Pursuant to the City Code, the City considers the generating capacity of the project as a whole. In the case of the Intel Project, that means the project proposes a S-megawatt generating capacity. 3. Differences between natural gas fuel cells and “traditional power plants’ do not allow the City to exclude natural gas fuel cells from the City’s definition of an electric power plant. Bloom argues that “Section 18.60.050 applies to gas turbines and steam generators, not fuel cells.” (Motion, p. 16:9-10; see also Hower Decl., {| 11-16 [contrasting “traditional power plants” and natural gas fuel cells].) The City does not dispute that there are differences between “traditional power plants” and natural gas fuel cells. However, for the purposes of the City’s land use permitting requirements, the relevant question is only whether a proposed project meets the City’s definition of an electric power plant; not whether a proposed project meets the definition of a “traditional power plant.” Bloom’s own declarations illustrate the irrelevance of the comparison between natural gas fuel cells and “traditional power plants.” For example, traditional steam power plants typically generate between 100 and 1,000 megawatts. (Hower Decl., |] 12-13.) Thus, traditional steam power plants generally would not meet the City’s definition of an electric power plant. (See supra Section IV.E.2.iii [definition requires a generating capacity of 500 kilowatts to 50 megawatts].) A comparison between natural gas fuel cells and large traditional power plants (see Hower Decl., qq 13, 15) - projects that do not meet the City’s definition of an electric power plant - has no relevance to the City’s determination whether the Intel Project or any other project meets the City’s definition of an electric power plant. 4. The City’s definition of an electric power plant is not unusual. Bloom also argues that “[f]uel cells... are nor commonly considered electric power plants by industry standards.” (Motion, p. 13:17-19 (emphasis original).) The fact that a fuel cell may meet the City’s definition of an electric power plant is not unusual. For example, the State Energy Resources Conservation and Development Commission’s regulations adopted to implement the Warren-Alquist 17 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 State Energy Resources Conservation and Development Act require utility distribution companies to collect data on “all power plants” in their service area. The regulations define “power plants” to include “fuel cell[s].” (Cal. Code Regs., tit. 20, § 1304(b)(2)(D); see also id. at §§ 1302(b)(54) [defining power plants to include “prime movers” and “electric generators], 1302(b)(57) [defining “prime movers” to include “fuel cells], 1302(b)(14) [defining “electrical generators” to include “fuel cells].) 5. The City’s prior failure to require a use permit for fuel cell projects does not compel - or even permit - the City to ignore the City Code’s plain language. Bloom argues that the City’s “prior interpretation... [that] Section 18.60.050 applies to gas turbines and steam generators, not fuel cells” is correct. (Motion, p. 16:9-10.) However, Bloom cites to no evidence of any prior City interpretation. The City has not changed its interpretation of the City Code. For the few natural gas fuel cell projects installed in the City to date, the City mistakenly failed to consider whether those fuel cell projects met the definition of an electric power plant. Therefore, in issuing building permits for those projects, the City never reached a determination as to whether the projects met the definition. But, the City’s failure to consider whether these past fuel cell projects met the City’s definition does not compel the City to ignore the City Code’s plain language now and exclude future fuel cell projects from the City’s definition of an electric power plant. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Auto Ins. Co. (1983) 463 U.S. 29 (Motor Vehicles) and Tower Lane, supra, 224 Cal. App.4th 262 are readily distinguishable. (See Motion, pp. 15:27 to 16:24.) Motor Vehicles concerned the standard of review applicable to an agency’s decision to rescind a formal rule that had been the subject of approximately 60 prior rulemaking notices. (Motor Vehicles, supra, 463 U.S. at pp. 34, 41-42.) Tower Lane concerned an interpretation of a city ordinance that “require[d] no technical expertise” and where conflicting declarations from the city’s own officials showed the city interpreted the ordinance inconsistently. (Tower Lane, supra, 224 Cal.App.4that pp. 276-279.) Here, in contrast, the City never adopted a formal (or even an informal) rule or interpretation exempting fuel cells projects from the City’s definition of an electric power plant.” 2 Bloom suggests that a statement by the City’s Chief Utility Electric Officer (AR 147), M. Pineda, demonstrates that the City cannot require fuel cells to obtain use permits. (Motion, pp. 16:27 - 17:3.) However, the Chief Utility Electric Officer's comment was made during a hearing on proposed amendments to SVP’s Rules and Regulations. (AR 146.) In that context, the Electric Officer stated that when a property owner does not interconnect with SVP’s grid, then “we [i.e., SVP] really don’t 18 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Furthermore, in the context of a city’s failure to enforce its city code, past error does not excuse future compliance. (See Siskiyou County Farm Bureau v. Department of Fish & Wildlife (2015) 237 Cal. App. 4th 411, 443 [An agency's prior failure to enforce a statute, “is an insufficient basis on which to find the statute precludes it from doing so.”] (original italics); see also Fontana v. Atkinson (1963) 212 Cal.App.2d 499, 509 [failure to enforce zoning ordinance does not estop later enforcement]; Estate of Madison (1945) 26 Cal.2d 453, 463 [“Mere failure to act ... does not constitute an administrative construction.”]; Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1369 [“the mere failure to enforce the law, without more, will not estop the government from subsequently enforcing it”].) Therefore, notwithstanding the City’s past error, the plain language of the City Code requires fuel cell projects meeting the definition of an electric power plant to obtain a use permit. F. The Intel Service Agreement provides no support for Bloom’s Motion. In 2017, the City entered an electric service agreement between the City and Intel (Intel Service Agreement). (Administrative Record (AR) 125-136 [Intel Service Agreement].) The Intel Service Agreement “provides for certain obligations to be undertaken by the Parties, with the intent that SVP will provide Customer with certain discounts on Customer’s charges for electric service in consideration of Customer entering into a long term contract with SVP.” (AR 126 [Intel Service Agreement, p. 2].) Bloom argues that the Intel Service Agreement “grandfathers” the Intel Project and exempts the project from the City’s use permit requirement. (Motion, pp. 18:1 - 19:28.) Bloom’s argument is meritless. First, the Intel Service Agreement is an Agreement between the City, doing business as SVP, and Intel. Bloom is not a party to the agreement. The agreement provides that it “shall not be construed or deemed to be an agreement for the benefit of any third Party or parties, and no third Party or parties shall have any claim or right of action hereunder for any cause whatsoever.” (AR 129 [Intel Service Agreement, p. 5].) Therefore, Bloom lacks standing to assert that the Intel Service Agreement somehow compels the City to exempt the Intel Project from the City’s use permit requirement. Second, the Intel Service Agreement includes the following remedies provision: Customer is bound to exhaust all administrative remedies by the Rules and Regulations have a say on what you’re doing, but if you want to interconnect with our [i.e., SVP’s] system, you should meet the same requirements that we’re [i.e., SVP] is trying to meet.” (AR 159-160.) 19 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adopted by the City of Santa Clara from time to time, as well as any other administrative remedies required by law. In the event that the Customer exhausts all administrative remedies, but continues to dispute items, then, prior to commencing any litigation against the City of Santa Clara or SVP, Customer shall engage in Alternative Dispute Resolution.... (AR 130 [Intel Service Agreement, p. 6].) Intel has not taken any of the steps required to either exhaust administrative remedies or engage in Alternative Dispute Resolution as required by the Intel Service Agreement. Therefore, Intel has not completed - or even commenced - any of the steps required before Bloom brought this Motion. Third, even if Bloom could properly seek to enforce the agreement using this Motion, Bloom’s interpretation of the agreement is incorrect. The agreement does not commit the City to exempt the Intel Project from the City’s use permit requirements. The agreement concerns SVP’s utility customer rates as set forth in SVP’s Rules and Regulations and not the City’s land use permitting requirements. For this reason, the Intel Service Agreement only overrides terms of SVP’s Rules and Regulations in the event of a conflict. (AR 128 [Intel Service Agreement, p. 4, {12].) SVP’s Intel Service Agreement does not purport to override, or even address, the City’s zoning requirements. In an effort to expand the Intel Service Agreement to somehow override the City’s land use permitting requirements, Bloom’s Motion cites to subsequent actions taken, and statements made, by the City. (Motion, p. 18:5-28.) However, as explained in the Intel Service Agreement, the terms of the “Agreement, its Exhibits and the City’s Rules and Regulations embody the entire agreement between SVP and Customer and its terms and conditions.” (AR 129 [Intel Service Agreement, p. 5].) Thus, the arguments advanced by Bloom in reliance on actions taken, and statements made, by the City outside of the four corners of the Intel Service Agreement provide no support for the argument that the Intel Service Agreement prohibits the City from exercising land use authority over the Intel Project. V. Conclusion For all of the reasons addressed herein, Bloom’s Motion is meritless. Therefore, the City respectfully requests that the Court deny the Motion in its entirety. Dated: March 30, 2020 THOMAS LAW GR( Pr J By: % Ps 1 Zz? 7 Tina A. Thomas Attorneys for Respondents and Defendants CITY OF SANTA CLARA 20 OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE AN nn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bloom Energy Corp. v. City of Santa Clara et al. Santa Clara County Superior Court Case No. 19CV348838 PROOF OF SERVICE I am a resident of the United States, employed in the City and County of Sacramento. My business address is 455 Capitol Mall, Suite 801, Sacramento, California 95814. I am over the age of 18 years and not a party to the above-entitled action. On March 30, 2020, I served the following: OPPOSITION TO MOTION FOR ORDER ENFORCING COMPLIANCE WITH PEREMPTORY WRIT OF MANDATE 0 On the parties in this action by causing a true copy thereof to be placed in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing mail addressed as follows; or o On the parties in this action by causing a true copy thereof to be delivered via Federal Express to the following person(s) or their representative at the address(es) listed below; or 0 On the parties in this action by causing a true copy thereof to be delivered by facsimile machine number (916) 737-5858 to the following person(s) or their representative at the address(es) and facsimile number(s) listed below; or o On the parties in this action by causing a true copy thereof to be hand-delivered to the following person(s) or representative at the address(es) listed below; or X On the parties in this action by causing a true copy thereof to be electronically delivered via the internet to the following person(s) or representative at the address(es) listed below: SEE ATTACHED SERVICE LIST I declare under penalty of perjury that the foregoing is true and correct and that this Proof of Service was executed this 30th day of March 2020, at Sacramento, California. Stephanie Richburg PROOF OF SERVICE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bloom Energy Corp. v. City of Santa Clara et al. Santa Clara County Superior Court Case No. 19CV348838 SERVICE LIST James L. Arnone Attorneys for Petitioner and Plaintiff: james.arnone @lw.com BLOOM ENERGY CORPORATION LATHAM & WATKINS LLP 355 South Grand Ave., Suite 100 Los Angeles, California 90071 Telephone: 213-485-1234 Facsimile: 213-891-8763 Marc T. Campopiano marc.campopiano@lw.com Lucas I. Quass lucas.quass @lw.com LATHAM & WATKINS LLP 650 Town Center Drive, 20th Floor Costa Mesa, California 92626 Telephone: 714-540-1235 Facsimile: 714-755-8290 PROOF OF SERVICE
