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. AB 45 -- 6/10/09 -- Page 2 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 AB 45 -- 6/10/09 -- Page 3 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 AB 45 -- 6/10/09 -- Page 4 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. AB 45 -- 6/10/09 -- Page 5 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 AB 45 -- 6/10/09 -- Page 6 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 AB 45 -- 6/10/09 -- Page 7 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.