Eldorado resident accuses Santa Fe County of violating open meetings law in fight over solar facility

Aug. 20—An Eldorado resident and former state employee who opposes a large commercial solar energy system planned south of Santa Fe has accused county staff of violating New Mexico's open meetings law more than a year ago.

Ashley Schannauer said he believes the 96-megawatt Rancho Viejo Solar facility, proposed for an 800-acre site near his home, required a small change to a Santa Fe County code that was improperly approved.

In an Aug. 14 letter to County Manager Greg Shaffer and County Attorney Jeffrey Young, Schannauer alleged staff violated the Open Meetings Act in 2022 by "burying" a change to the definition of commercial solar facilities in an ordinance on community solar projects.

Shaffer wrote in an email Friday county staff "strongly disagrees" the consideration and adoption of the ordinance "in any way" violated the law. Shaffer also noted the county printed a legal ad in the newspaper in advance of the meeting notifying the public the proposed change to the definition was being considered.

The ordinance, approved by county commissioners in July 2022, established standards for community-based solar facilities developed through a new state program intended to provide residents and businesses with opportunities to buy into renewable energy projects to offset their electricity bills. Included in the ordinance was the addition of three words to the definition of "commercial solar production facility" that paved the way for storage capacity at such energy plants.

The change defined a commercial solar production facility in the county's Sustainable Land Development Code as "a renewable energy production facility that uses sunlight to generate, and may store, energy for sale or profit."

Schannauer, a retired lawyer who recently worked for the New Mexico Public Regulation Commission, argues the words allowing solar energy storage were added specifically to accommodate a battery storage system planned for the solar development in the works by global energy firm AES Corp.

Rancho Viejo Solar, which would be built on private land about a mile off N.M. 14, northeast of the Rancho San Marcos subdivision and west of Eldorado, has drawn opposition from several residents in the area, in particular because of plans for a 48-megawatt battery storage system.

Opponents have raised concerns about the potential for the lithium-ion battery system to overheat in a "thermal runaway" event and cause a fire. They have cited such incidents at other solar farms in recent years, including one at an AES facility in Chandler, Ariz., in 2022.

The pushback from residents prompted the county to hire an outside firm to review AES' plans.

Shannauer said he requested public records of communications between the county and AES and discovered even before the community solar ordinance was introduced to the County Commission in May 2022, the energy company had been meeting with county staff in preparation to apply for a permit to build its facility, including the lithium-ion battery storage.

Shaffer wrote in his email AES' permit for a solar facility was unrelated to the amended definition of a commercial solar facility.

"The amendment was initiated so that the definitions of Commercial Solar Energy Production Facility and Community Solar Facility were consistent — both contain the 'and may store' language," Shaffer wrote. "Moreover, that language was included to avoid any arguable ambiguity over whether either type of facility could include storage."

The ordinance appeared on agendas for two County Commission meetings and one Planning Commission meeting between May and July of 2022. Schannauer argues the county ran afoul of the open meetings law by failing to note on the agendas the ordinance included changes to the commercial solar definition.

"The agendas for each meeting included only the title of the Community Solar Ordinance," Schannauer wrote in his letter last week, "which was specific but in fact limited in its description of what the Ordinance accomplishes. The title indicated that it was adding a definition of 'Community Solar,' but it did not mention any changes to the then-current definition of Commercial Solar Energy Production Facility."

Shaffer said, however, a legal ad printed in The New Mexican in advance of the ordinance's consideration and adoption stated it "would also amend Appendix A, Part 2, Definitions, of the [Sustainable Land Development Code] to amend the Commercial Solar Energy Production Facility definition."

"In other words, anybody interested in the definition of Commercial Solar Energy Production Facility was given clear and unequivocal legal notice that the proposed ordinance was something in which they should be interested," Shaffer wrote in the email.

The county land use administrator's opinion was that storage would be allowed in such a facility even without the language change, he added.

County staff will elaborate on its position that it did not commit an Open Meetings Act violation at an upcoming County Commission meeting Aug. 29, Shaffer wrote.

Schannauer maintains the legal notice wasn't sufficient to comply with the state's Open Meetings Act.

"The only thing the public sees is the agenda notice and that agenda notice was extremely misleading," Shannauer said in an interview Friday.

The amendment to the commercial solar definition should be rendered invalid, he said, adding the county also should declare a moratorium on permitting commercial solar facilities.

"The inclusion of battery storage facilities at utility-scale solar farms represented a significant change to the definition of Commercial Solar Energy Production Facilities, especially given the history of fires at AES battery storage facilities and battery storage facilities of other companies," Schannauer wrote in his recent letter.

Schannauer said he had not yet received a response from county officials regarding his letter.