BILL ANALYSIS                                                                                                                                                                                                    



                                        
                       SENATE LOCAL GOVERNMENT COMMITTEE
                        Senator Patricia Wiggins, Chair


          BILL NO:  AB 45                       HEARING:  6/17/09
          AUTHOR:  Blakeslee                    FISCAL:  No
          VERSION:  6/10/09                     CONSULTANT:  Detwiler

                           SMALL WIND ENERGY SYSTEMS

                           Background and Existing Law  

          The police power is the authority of governments to  
          regulate private behavior in the public interest,  
          consistent with constitutional rights and procedures.  The  
          California Constitution allows cities and counties to "make  
          and enforce within [their] limits all local police,  
          sanitary, and other ordinances and regulations not in  
          conflict with general laws."  Zoning and use permits are  
          examples of how local officials use their police powers to  
          regulate land uses.

          Concerns about energy costs and greenhouse gases continue  
          to stimulate interest in small wind turbines that generate  
          electricity.  A 10-kilowatt wind turbine with 22-foot  
          diameter blades sits on top of a tower that may be 60 to  
          140 feet tall.  State officials say that 413 small wind  
          energy systems that generate 2.5 megawatts of electricity  
          have qualified for rebates under the California Energy  
          Commission's Emerging Renewables Program.

          In 2001, the Legislature specifically allowed cities and  
          counties to adopt ordinances for installing small wind  
          energy systems outside urbanized areas.  If local officials  
          failed to adopt these ordinances, they had to approve small  
          wind energy systems under 11 conditions.  That law sunset  
          on July 1, 2005 (AB 1207, Longville, 2001).

          Manufacturers say that property owners are still having  
          trouble getting local permits to install small wind energy  
          systems.  The California Wind Energy Collaborative at UC  
          Davis surveyed wind turbine installers about their problems  
          with obtaining local permits.  Nine companies reported  
          installing 64 small wind energy systems in 24 counties in  
          2008.  The installers' most common complaints were  
          inconsistent regulations, high fees, and the processing  
          time.  The UC Davis report recommended a statewide solution  
          to these problems.




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                                   Proposed Law  

          Assembly Bill 45 authorizes --- and in some circumstances  
          requires --- cities and counties to permit the installation  
          of small wind energy systems.

          I.   Ministerial approval  .  AB 45 allows a city or county to  
          require a conditional use permit for a small wind energy  
          system, provided that the city or county:
                 Approves the system with ministerial permit for an  
               application submitted between July 1, 2010 and the  
               adoption of a local ordinance that meets the  
               requirements and conditions for ordinances described  
               below.
                 Reviews applications under the deadlines in the  
               Permit Streamlining Act.
                 Charges processing fees under the standards in the  
               Mitigation Fee Act.

          AB 45 allows a city or county that has not adopted an  
          ordinance for installing small wind energy systems outside  
          an urbanized area by July 1, 2010 to adopt an ordinance at  
          a later date, but the ordinance must reflect the ordinance  
          described below.

          AB 45 exempts ordinances adopted before July 1, 2010.


          II.   Local ordinances  .  AB 45 allows cities and counties to  
          adopt ordinances that provide for the installation of small  
          wind energy systems outside "urbanized areas."

          The ordinance may impose conditions on the installation,  
          including notice, tower height, setback, view protection,  
          aesthetics, aviation, and design safety.  However, the  
          conditions on notice, tower height, setback, noise level,  
          visual effects, turbine approval, tower drawings, and  
          engineering analysis or line drawings can't be more  
          restrictive than the following:
                 The parcel must be at least one acre and outside an  
               "urbanized area."
                 Tower heights up to 80 feet must be allowed on  
               parcels of one to five acres.  Tower heights up to 100  
               feet must be allowed on parcels of larger than five  





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               acres.  Towers can't exceed the Federal Aviation  
               Administration's applicable limits.  Towers can't  
               exceed the manufacturer or distributor's recommended  
               heights.
                 The tower's setback from the parcel's property line  
               can't be more than the system's height.  If the  
               property is classified as a State Responsibility Area,  
               the system must also meet the state's fire setback  
               requirements.
                 Noise measured at the nearest property line can't  
               exceed the lower of  either  60 decibels  or the maximum  
               noise level of the general plan's noise element,  
               except during short-term events.
                 Notice of an application to install a system must  
               be provided to the property owners within 300 feet of  
               the property.
                 The system can't substantially obstruct the  
               adjacent property owners' views.  The system must be  
               placed below any major ridgeline when viewed from a  
               designated scenic highway corridor.
                 The system's wind turbine must  either  be approved  
               by the California Energy Commission as qualifying  
               under the Emerging Renewables Program  or  certified by  
               a national program approved by the Energy Commission.
                 The application must include standard drawings and  
               an engineering analysis of the tower, showing  
               compliance with the current version of the California  
               Building Standards Code  and  certified by a licensed  
               professional engineer.  However, certification is not  
               needed if the application demonstrates that the system  
               meets specific wind, seismic, soil safety, or other  
               normally relevant local conditions.
                 The system must comply with the requirements of the  
               Federal Aviation Administration and the State  
               Aeronautics Act.  A system that meets these  
               requirements must be deemed to meet the applicable  
               civil aviation health and safety requirements.
                 The application must include a line drawing of the  
               system's electrical components, showing that the  
               installation conforms to the National Electric Code.
                 The city or county may require the applicant to  
               demonstrate that the system will be used primarily to  
               reduce the on-site consumption of electricity.  The  
               city or county may also require the application to  
               show that the electricity provider knows that the  
               applicant intends to install an interconnected  





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               electricity generator.
                 If military authorities file a detailed diagram of  
               the R-2515 restricted military airspace with the city  
               or county, local officials must notify the military  
               authority of any applications for a small wind energy  
               system within that area.  Local officials must  
               consider the military authorities' written comments  
               before acting on the application.
                 If the application is within an agricultural area  
               where aircraft operate at low altitudes, the city or  
               county must take reasonable steps to notify registered  
               pest control aircraft pilots.
                 Tower lighting must be prohibited unless required  
               by law or required for pest control aircraft.
                 Climbing apparatus must be prohibited less than 12  
               feet above the ground and the system's design must  
               prevent climbing within the first 12 feet.
                 Signs on the system (except for signs identifying  
               the manufacturer, installer, or owner, and health and  
               safety signs) can't be visible from public roads.   
               Unless approved by the city or county, signs can't be  
               more than four feet square and must be within 10 feet  
               of the ground.
                 A small wind energy system can't be allowed if it's  
               prohibited by the:
                  o         Local coastal program.
                  o         California Coastal Commission.
                  o         Tahoe Regional Planning Agency.
                  o         San Francisco Bay Conservation and  
                    Development Commission.
                  o         Airport land use commission's  
                    comprehensive land use plan.
                  o         Alquist-Priolo Earthquake Fault Zoning  
                    Act.
                  o         Local regulations that protect designated  
                    scenic highway corridors.
                  o         Terms of a conservation easement,  
                    open-space easement, agricultural conservation  
                    easement, or Williamson Act contract.
                  o         Listing of the site on the National  
                    Register of Historic Places or the California  
                    Register of Historical Resources.

          The city or county may give public notice of a specific  
          installation by publishing a one-eighth page display  
          advertisement in a general circulation newspaper.





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          The city or county may condition its approval on a  
          requirement that the small wind energy system must be  
          removed if it's inoperable for 12 consecutive months.  At  
          that time, the system will be subject to nuisance codes and  
          code enforcement.

          III.   Declarations and definitions  .  AB 45 contains  
          legislative findings and declarations to support its  
          substantive requirements.  The bill defines its key terms.


                                     Comments  

          1.   The answer my friend  .  Rising utility rates and  
          concerns about the environmental effects of greenhouse  
          gases make alternative energy sources more attractive.   
          Generating electricity from wind energy avoids the use of  
          finite fossil fuels, which is why the state government  
          provides deep subsidies for installing small wind energy  
          systems.  But archaic and inflexible local land use  
          regulations can thwart property owners who want to install  
          towers for their wind turbines.  AB 45 tells cities and  
          counties that they must either approve permits for small  
          wind energy systems that meet the bill's criteria or adopt  
          local ordinances that meet the bill's criteria.  The need  
          to expand alternative energy sources begs for new answers,  
          not local regulatory obstacles.

          2.   Anecdotes and evidence  .  A former State Senate leader  
          once famously admonished his colleagues that, "the plural  
          of anecdote is not evidence."  When the Legislature passed  
          the 2001 Longville bill, the sponsors said that perhaps as  
          many as half of the property owners who wanted to put wind  
          turbines on towers found themselves thwarted by local  
          regulations.  A recent UC Davis report that recommended a  
          statewide solution relied on a survey of just nine  
          companies that installed 64 small wind energy systems.  Is  
          the small size of the survey clear evidence of a statewide  
          problem?  The Committee may wish to consider the need for  
          the Legislature to override local officials' traditional  
          regulation of local land uses.

          3.   The blame game  .  AB 45 requires local officials to  
          approve 80-foot towers on one-acre parcels.  That's taller  
          than the State Capitol's six-story East Wing Annex.  Local  





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          officials must approve even taller towers on bigger  
          parcels.  Although the towers must be outside federally  
          identified "urbanized areas," the parcels could still be in  
          suburban and semi-rural areas.  Even when neighbors  
          complain, local officials will have no recourse but to  
          follow the state law.  The Committee may wish to consider  
          if the bill sets the stage for angry confrontations among  
          neighbors and county supervisors over height limits,  
          aesthetics, and the scope of local control.

          4.   Not just blowing in the wind  .  AB 45 is not the first  
          bill that proposes to limit local authority over particular  
          land uses.  The Legislature has limited (or even preempted)  
          local land use regulations for: 
                 Manufactured housing in residential zones (AB 3735,  
               Bornstein, 1994).
                 Sexually oriented businesses (AB 2055, Gallegos,  
               1998).
                 Second units in residential zones (AB 1866, Wright,  
               2002).
                 Amateur radio station antenna structures (AB 1228,  
               Dutton, 2003).
                 Solar energy systems (AB 2473, Wolk, 2004).
                 Wireless telecommunications collocation facilities  
               (SB 1627, Kehoe, 2006).
          The Committee may wish to consider whether small wind  
          energy systems similarly qualify for state preemption.

          5.   Military airspace  .  Concerned with civilian land uses  
          that compromise the use of sensitive military airspace, the  
          Legislature required public officials to notify military  
          officials about applications for nearby development  
          projects (SB 1462, Kuehl, 2004).  Since then, local  
          planners and military officials have established productive  
          working relationships, particularly where private property  
          lies below military airspace.  Relying on the language  
          written for the 2001 Longville bill, AB 45 requires local  
          officials to work with military officials on applications  
          to install small wind energy systems on sites under the  
          restricted military airspace known as "R-2515."  But the  
          2001 Longville language predated the 2004 Kuehl  
          legislation.  These days, local planners and military  
          officials talk to each other about civilian projects under  
          several other areas of military airspace, not just R-2515.   
          The Committee may wish to consider amendments that require  
          consultation on small wind energy systems proposed below  





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          any sensitive military airspace.  Should the bill require  
          local officials to deny a permit if military officials  
          object?

          6.   It's about time  .  When the Legislature passed the 2001  
          Longville bill, it insisted on a 3 year sunset clause.   
          When July 1, 2005 came, legislators didn't extend the  
          statute.  More commonly sunset clauses allow new statutes  
          to operate for seven years, giving property owners and  
          public officials enough time to implement and operate a new  
          law.  Some sunset clauses ask for an evaluation report  
          after six years, so that the Legislature will have  
          information in time to act on any bill seeking to make the  
          statute permanent.  The Committee may wish to consider an  
          amendment that sunsets AB 45 on January 1, 2017.  Who  
          should evaluate the bill: the California Energy Commission  
          or the Governor's Office of Planning and Research?

          7.   Double-referred .  The Senate Rules Committee has  
          ordered the double-referral of AB 45.  First to the Senate  
          Local Government Committee which has policy jurisdiction  
          over bills affecting local land use decisions, and then to  
          the Senate Environmental Quality Committee which hears  
          bills affecting environmental reviews and the California  
          Environmental Quality Act (CEQA).


                                 Assembly Actions 

          Assembly Local Government Committee:  6-0
          Assembly Floor:                    78-0


                         Support and Opposition  (6/11/09)

           
          Support  :  Unknown.

           Opposition  :  Unknown.