BILL ANALYSIS                                                                                                                                                                                                    



                                                                 AB 45
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                        Senator S. Joseph Simitian, Chairman
                              2009-2010 Regular Session
                                           
           BILL NO:    AB 45
           AUTHOR:     Blakeslee
           AMENDED:    June 23, 2009
           FISCAL:     Yes               HEARING DATE:     July 6, 2009
           URGENCY:    No                CONSULTANT:       Randy Pestor
            
           SUBJECT  :    WIND ENERGY SYSTEMS

            SUMMARY  :    
           
            Existing law  :

           1) Under the California Constitution, authorizes a city or  
              county to "make and enforce within its limits all local,  
              police, sanitary, and other ordinances and regulations not  
              in conflict with general law."

           2) Under Planning and Zoning Law, requires cities and counties  
              to adopt a general plan that includes seven mandated  
              elements (land use, circulation, housing, conservation,  
              open space, noise, safety), and creates special  
              requirements for housing elements.  It also requires cities  
              and counties to adopt zoning ordinances regulating, for  
              example, the use of buildings, structures, and land.

           3) Under the California Environmental Quality Act (CEQA),  
              requires lead agencies with the principal responsibility  
              for carrying out or approving a proposed discretionary  
              project to prepare a negative declaration, mitigated  
              declaration, or environmental impact report (EIR) for this  
              action, unless the project is exempt from CEQA (CEQA  
              includes various statutory exemptions, as well as  
              categorical exemptions in the CEQA guidelines).

           4) Under the Permit Streamlining Act (PSA), requires a lead  
              agency for a development project to approve or disapprove a  
              project within specified time periods (for example, 180  
              days from the date the lead agency certifies an EIR (except  
              90 days for a very low or low income housing project under  
              certain conditions), 60 days from the date of adopting a  








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              negative declaration or determining that a project is  
              exempt from CEQA).

            This bill  , under Planning and Zoning Law, enacts wind energy  
           siting requirements that:

           1) Authorize a local agency to establish a process for issuing  
              conditional use permits for small wind energy systems that  
              must be subject to:  a) review within Permit Streamlining  
              Act timelines, b) fees in accordance with certain  
              provisions of the Mitigation Fee Act, and c) approval  
              through a ministerial permit if an application for a system  
              is submitted between July 1, 2010, and the date of the  
              local agency's adoption of an ordinance meeting certain  
              requirements (#2 below).  Ordinances adopted prior to July  
              1, 2010, are exempt from the requirements of this bill.

           2) Authorize a local agency to provide for installation of  
              small wind energy systems outside an urbanized area subject  
              to conditions relating to notice, tower height, setback,  
              view protection, aesthetics, aviation, and design safety  
              requirements.  The ordinance cannot require conditions on  
              notice, tower height, setback, noise levels, visual  
              effects, turban approval, tower drawings, and engineering  
              analysis, or line drawings that are more restrictive than  
              specified conditions (e.g., 80 feet tower height on 1 to 5  
              acre parcel and 100 feet on parcels over 5 acres, setbacks  
              not farther from property line than system height, 60  
              decibels noise level limit or maximum noise level in  
              general plan, not substantially obstruct views, certain  
              aviation requirements, signage, certain locations).

           3) Authorize a local agency to provide newspaper notice "due  
              to circumstances specific to the proposed installation" and  
              authorize a condition that a small wind energy system must  
              be removed if it remains inoperable for 12 consecutive  
              months.

           4) Requires the State Energy Resources Conservation and  
              Development Commission (CEC) to submit certain information  
              to the Assembly and Senate Local Government committees by  
              January 1, 2016, regarding:  a) number of ordinances  
              adopted on or after July 1, 2010, by local agencies; b)   
              number of applications received and approved during that  








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              period; c) tower heights, system heights, parcel sizes, and  
              generating capacities approved during that period; and d)  
              CEC recommendations for continuation, modification, or  
              termination of the requirements in this bill.

           5) Provides definitions for certain terms and contains related  
              legislative intent.

           6) Sunsets January 1, 2017.

            COMMENTS  :

            1) Purpose of Bill  .  According to the author, "Small wind  
              turbines are an excellent customer-scale renewable energy  
              technology that can reduce greenhouse gas and criteria  
              pollutant emissions, reduce peak electricity demand, and  
              save customers money on their monthly utility bills.  As  
              California continues to advance its renewable energy goals,  
              it is imperative that state policies not only support the  
              market penetration and viability of promising technologies,  
              but that they also support local agencies in the permitting  
              and installation of renewable energy systems."

           The author notes that AB 1207 (Longville) Chapter 562,  
              Statutes of 2001, set requirements for local government  
              approval of small wind energy systems.  AB 1207 became  
              inoperative July 1, 2005, and sunset January 1, 2006.   
              According to the author, "Since then, counties have had to  
              adopt their own permitting regulations.  Some counties have  
              implemented ordinances similar to AB 1207, some have  
              adopted regulations that are more restrictive and more  
              expensive, while others no longer have an ordinance for  
              small wind systems."

            2) Brief background on CEQA  .  CEQA provides a process for  
              evaluating the environmental effects of a project, and  
              includes statutory exemptions, as well as categorical  
              exemptions in the CEQA guidelines.  If a project is not  
              exempt from CEQA, an initial study is prepared to determine  
              whether a project may have a significant effect on the  
              environment.  If the initial study shows that there would  
              not be a significant effect on the environment, the lead  
              agency must prepare a negative declaration.  If the initial  
              study shows that the project may have a significant effect  








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              on the environment, the lead agency must prepare an EIR.

           Generally, an EIR must accurately describe the proposed  
              project, identify and analyze each significant  
              environmental impact expected to result from the proposed  
              project, identify mitigation measures to reduce those  
              impacts to the extent feasible, and evaluate a range of  
              reasonable alternatives to the proposed project.  Prior to  
              approving any project that has received environmental  
              review, an agency must make certain findings.  If  
              mitigation measures are required or incorporated into a  
              project, the agency must adopt a reporting or monitoring  
              program to ensure compliance with those measures.

           If a mitigation measure would cause one or more significant  
              effects in addition to those that would be caused by the  
              proposed project, the effects of the mitigation measure  
              must be discussed but in less detail than the significant  
              effects of the proposed project.

            3) A source for bill  .  AB 45 sets various limitations that can  
              be placed on conditions, and is based on a March 2009  
              report by the California Wind Energy Collaborative ("Small  
              wind permitting challenges - findings from a survey of  
              small wind installers").  According to the report  
              "Inconsistency in the regulations and time to process can  
              be partially addressed by developing a model ordinance that  
              counties can refer to as they develop or change their  
              ordinances.  These issues and others can be fully addressed  
              by adopting a statewide standard.  Statewide standards  
              should streamline the process solving many of the other  
              issues and reduce some of the fees."

           Should state law be changed based on a survey relying on only  
              nine companies that installed 64 small wind energy systems  
              in 2008?  If so, would it be more appropriate for a state  
              agency to develop a model ordinance, and provide an  
              opportunity for a local government to adopt a model  
              ordinance?

            4) Potential for conflicts that cannot be resolved by local  
              governments .  Because AB 45 prevents conditions that are  
              more restrictive than those specified under the bill if a  
              local government does not currently have a small wind  








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              energy system ordinance, there may be circumstances where  
              local governments will be unable to avoid conflicts.

           For example, AB 45 requires approval of 80 foot wind system  
              towers on parcels of 1 to 5 acres - and taller towers on  
              larger parcels.  In a typical downtown like Sacramento, one  
              city block represents 2.35 acres.  Therefore, the height of  
              a tower under AB 45 would be about the height of a 7 or 8  
              floor building on a parcel size less than  city block.

           Under AB 45, noise cannot exceed 60 decibels or the general  
              plan maximum noise level for the zoning classification -  
              which is equivalent to conversation or a dishwasher, while  
              moderate rainfall is 50 decibels and busy traffic or a  
              vacuum cleaner is about 70 decibels.  Also, the maximum  
              allowed noise level for a zoning classification may not be  
              something one prefers to experience on an ongoing basis.

            5) Need to ensure compliance with CEQA for small wind energy  
              systems  .    AB 45 seeks to limit application of CEQA by:   
              a) requiring approval through a ministerial permit if an  
              application for a wind energy system is submitted between  
              July 1, 2010, and the date of the local agency's adoption  
              of an ordinance meeting the bill's requirements; and b)  
              prohibiting small wind energy system ordinances from  
              requiring conditions that are more restrictive than the  
              bill's conditions.

           Although AB 45 exempts ordinances adopted prior to July 1,  
              2010, from the limitations in this bill, six months is  
              unlikely to provide sufficient time for a local government  
              to adopt an ordinance and comply with CEQA for that  
              ordinance.

           To ensure compliance with CEQA for small wind energy systems,  
              amendments are needed to:  a) provide the necessary time  
              for local governments to adopt ordinances, and to comply  
              with CEQA for those ordinances, in order to be exempt from  
              the bill's requirements (i.e., January 1, 2011, rather than  
              July 1, 2010); b) clarify the status of permits submitted  
              between that date and the adoption of an ordinance required  
              under this bill's restrictions (e.g., something other than  
              "ministerial", requirements that apply to those permits);  
              c) clarify those matters that are not subject to conditions  








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              as described under 65896(b); d) clarify that the size of a  
              sign attached to a system may be as approved by the local  
              agency but the sign must be within 10 feet of the ground;  
              e) clarify that this bill is not a limitation on mitigation  
              requirements or compliance with other provisions of law;  
              and f) include various technical and clarifying amendments.

           There are also concerns about allowing 80 foot tower heights  
              on parcels of 1 to 5 acres.

            SOURCE  :        Assemblymember Blakeslee  

           SUPPORT  :       None on file  

           OPPOSITION  :    None on file