BILL ANALYSIS Ó
AB 2188
Page 1
Date of Hearing: April 30, 2014
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 2188 (Muratsuchi) - As Amended: April 21, 2014
SUBJECT : Solar energy: permits.
SUMMARY : Requires every city and county to create an expedited
permitting and inspection process for small, residential solar
energy systems, alters the definition of what is a reasonable
restriction on a solar energy system, and makes additional
changes to the Solar Rights Act. Specifically, this bill :
1)Requires, on or before September 30, 2015, every city, county,
or city and county to adopt an ordinance that creates an
expedited, streamlined permitting process for small
residential rooftop solar energy systems, consistent with the
goals and intent of existing law governing the implementation
of statewide standards to achieve timely and cost-effective
installation of solar energy systems (commonly referred to as
the Solar Rights Act).
2)Requires each city, county, or city and county, in developing
an expedited permitting process, to adopt a checklist of all
requirements with which small rooftop solar energy systems
shall comply to be eligible for expedited review.
3)Requires an application that meets the requirements in the
checklist specified in 2), above, to be reviewed within 24
business hours if submitted during business hours. If
submitted after business hours, such an application must be
reviewed within 24 business hours of the beginning of the next
business day after submittal of the application.
4)Requires the checklist specified in 2), above, and required
permitting documentation to be published on a publically
accessible Internet Web site.
5)Requires a city, county, or city and county to allow for
electronic submittal of a permit application and associated
documentation, and to authorize the electronic signature on
all forms, applications, and other documentation in lieu of a
wet signature by an applicant.
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6)Requires a city, county, or city and county, in developing the
ordinance specified in 1), above, to strive to conform with
standardized checklists based on existing statewide solar
permitting guidelines or best practices, including those
developed through the United States Department of Energy's
SunShot Initiative.
7)Requires, for a small residential rooftop solar energy system
eligible for expedited review, only one inspection and
requires that one inspection to be scheduled within two
business days of a request, if the request is received during
business hours. If the request is received after business
hours, the inspection must be scheduled within two business
days of the beginning of the next business day after receipt
of the request. If a city, county, or city and county is
unable to provide inspection within two business days of a
request, the city, county, or city and county may authorize a
third-party inspection, using a qualified or certified
inspector. If the small residential rooftop solar energy system
fails inspection, a subsequent inspection shall also conform
to the requirements of this provision.
8)Prohibits a city, county, or city and county from conditioning
approval for any solar energy system permit on the approval of
a solar energy system by a nonprofit corporation or
unincorporated association created for the purpose of managing
a common interest development (CID).
9)Specifies that the Solar Rights Act shall apply to every city
in this state, including charter cities.
10)Requires a finding, based on substantial evidence, before a
city or county may require application for a use permit for a
solar energy system, rather than the existing law requirement
of a good faith belief.
11)Provides that existing law requiring a solar energy system to
meet applicable health and safety standards and requirements
imposed by state and local permitting authorities shall be
consistent with the Solar Rights Act.
12)Requires every solar energy system for heating water to be
certified by an accredited listing agency as defined by this
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bill, rather than the Solar Rating Certification Corporation
(SRCC) or other nationally recognized certification agencies,
and deletes language requiring the certification to be for the
entire solar energy system and installation.
13)Provides, for the purposes of reasonable restrictions on
solar energy systems in covenants, conditions or restrictions
(CC&Rs) contained in specified instruments affecting the sale
or transfer of real property, that for solar domestic water
heating systems or solar swimming pool heating systems that
comply with state and federal law, "significantly" means an
amount exceeding 10% of the cost of the system, but in no case
more than $1,000, or decreasing the efficiency of the solar
energy system by an amount exceeding 10%, as originally
specified and proposed.
14)Provides, for the purposes of reasonable restrictions on
solar energy systems in CC&Rs contained in specified
instruments affecting the sale or transfer of real property,
that for photovoltaic systems that comply with state and
federal law, "significantly" means an amount not to exceed
$1,000 over the system cost as originally specified and
proposed, or a decrease in system efficiency of an amount
exceeding 10% as originally specified and proposed.
15)Reduces, from 60 days to 30 days, the period during which an
application required by CC&Rs for the installation or use of a
solar energy system shall be deemed approved, unless that
delay is the result of a reasonable request for additional
information.
16)Defines "Accredited listing agency" to mean a standards or
testing organization that evaluates solar energy systems
according to specified, independent criteria and allows its
mark to be used on qualifying systems as a stamp of approval,
such as the American National Standards Institute or the
American Association for Laboratory Accreditation.
17)Defines "Electronic submittal" to mean the utilization of
Email, the Internet, or facsimile.
18)Defines "Small residential solar energy system" to mean all
of the following:
a) A solar energy system that is no larger than 10
kilowatts alternating current nameplate rating or 30
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kilowatts thermal;
b) A solar energy system that conforms to all applicable
state fire, structural, electrical, and other building
codes as adopted or amended by the city, county, or city
and county and specified provisions of existing law, as
specified.
c) A solar energy system that is installed on a single or
duplex family dwelling; and,
d) A solar panel or module array that does not exceed the
maximum legal building height.
19)Provides that, if a conflict arises between law governing the
implementation of statewide standards to achieve timely and
cost-effective installation of solar energy systems, including
the requirements of this bill, and any requirements in state
fire, electrical, structural, or building codes, the
requirements of this bill and existing law shall apply.
20)Makes updating and conforming changes.
21)Finds and declares that:
a) In recent years, the state has both encouraged the
development of innovative distributed generation technology
and prioritized the widespread adoption of solar power as a
renewable energy resource through programs such as the
California Solar Initiative;
b) Rooftop solar energy is a leading renewable energy
technology that will help this state reach its energy and
environmental goals;
c) To reach the state's Million Solar Roofs goal, hundreds
of thousands of additional rooftop solar energy systems
will need to be deployed in the coming years;
d) Various studies, including one by the Lawrence Berkeley
National Laboratory, show that, despite the 1978 California
Solar Rights Act, declaring that the "implementation of
consistent statewide standards to achieve the timely and
cost-effective installation of solar energy systems is not
a municipal affair ... but is instead a matter of statewide
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concern," the permitting process governing the installation
of rooftop solar energy systems varies widely across
jurisdictions and, contrary to the intent of the law, is
both an "obstacle" to the state's clean energy and
greenhouse reduction goals and a "burdensome cost" to
homeowners, businesses, schools, and public agencies;
e) The United States Department of Energy, through its
SunShot Initiative, has distributed millions of dollars in
grants to local and state governments, including California
jurisdictions, and nonprofit organizations to reduce the
costs of distributed solar through streamlined and
standardized permitting; and,
f) A modernized and standardized permitting process for
installations of small-scale solar distributed generation
technology on residential rooftops will increase the
deployment
of solar distributed generation, help to expand access to
lower-income households, provide solar customers greater
installation ease, improve the state's ability to reach its
clean energy goals, and generate much needed jobs in the
state, all while maintaining safety standards.
EXISTING LAW :
1)Provides that the implementation of consistent statewide
standards to achieve the timely and cost-effective
installation of solar energy systems is not a municipal
affair, as that term is used in the California Constitution,
but is instead a matter of statewide concern.
2)Provides that it is the intent of the Legislature that local
agencies not adopt ordinances that create unreasonable
barriers to the installation of solar energy systems,
including, but not limited to, design review for aesthetic
purposes, and not unreasonably restrict the ability
of homeowners and agricultural and business concerns to install
solar energy systems.
3)Provides that it is the policy of the state to promote and
encourage the use of solar energy systems and to limit
obstacles to their use, and that it is the intent of the
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Legislature that local agencies comply not only with specified
provisions of law, but also the legislative intent to
encourage the installation of solar energy systems by removing
obstacles to, and minimizing costs of, permitting for such
systems.
4)Requires a city or county to administratively approve
applications to install solar energy systems through the
issuance of a building permit or similar nondiscretionary
permit.
5)Requires review of an application to install a solar energy
system to be limited to the building official's review of
whether it meets all health and safety requirements of local,
state, and federal law.
6)Requires the requirements of local law to be limited to those
standards and regulations necessary to ensure that the solar
energy system will not have a specific, adverse impact upon
the public health or safety.
7)Allows a city or county to require an applicant for the
installation of a solar energy system to apply for a use
permit if the building official of the city or county has a
good faith belief that the solar energy system could have a
specific, adverse impact upon the public health and safety.
8)Prohibits a city or county from denying an application for a
use permit to install a solar energy system unless it makes
written findings based upon substantial evidence in the record
that the proposed installation would have a specific, adverse
impact upon the public health or safety, and there is no
feasible method to satisfactorily mitigate or avoid the
specific, adverse impact. The findings must include the basis
for the rejection of potential feasible alternatives of
preventing the adverse impact.
9)Allows the decision of the building official regarding
building or use permits for solar energy systems to be
appealed to the planning commission of the city or county.
10)Requires any conditions imposed on an application to install
a solar energy system to be designed to mitigate the specific,
adverse impact upon the public health and safety at the lowest
cost possible.
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11)Requires a solar energy system to meet applicable health and
safety standards and requirements imposed by state and local
permitting authorities.
12)Requires a solar energy system for heating water to be
certified by the SRCC or other nationally recognized
certification agency, as specified, and requires the
certification to be for the entire solar energy system and
installation.
13)Declares that any covenant, restriction, or condition
contained in any deed, contract, security instrument, or other
instrument affecting the transfer or sale of, or any interest
in, real property, and any provision of a governing document,
as specified, that effectively prohibits or restricts the
installation or use of a solar energy system is void and
unenforceable.
14)Provides that the provisions of 13), above, do not apply to
provisions that impose reasonable restrictions on solar energy
systems. However, it is the policy of the state to promote
and encourage the use of solar energy systems and to remove
obstacles thereto. Accordingly, reasonable restrictions on a
solar energy system are those restrictions that do not
significantly increase the cost of the system or significantly
decrease its efficiency or specified performance, or that
allow for an alternative system of comparable cost,
efficiency, and energy conservation benefits.
15)Provides that, for solar domestic water heating systems or
solar swimming pool heating systems that comply with state and
federal law, "significantly" means an amount exceeding 20% of
the cost of the system or decreasing the efficiency of the
solar energy system by an amount exceeding 20%, as originally
specified and proposed.
16)Provides that, for photovoltaic systems that comply with
state and federal law, "significantly" means an amount not to
exceed $2,000 over the system cost as originally specified and
proposed, or a decrease in system efficiency of an amount
exceeding 20%, as originally specified and proposed.
17)Requires, whenever approval is required by CC&Rs for the
installation or use of a solar energy system, the application
for approval shall be processed and approved by the
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appropriate approving entity in the same manner as an
application for approval of an architectural modification to
the property, and shall not be willfully avoided or delayed.
If an application is not denied in writing within 60 days from
the date of receipt of the application, the application shall
be deemed approved, unless that delay is the result of a
reasonable request for additional information.
FISCAL EFFECT : This bill is keyed fiscal.
COMMENTS :
1)Purpose of this bill . This bill requires every city and
county to create an expedited permitting and inspection
process for small, residential solar energy systems, alters
the definition of what is a reasonable restriction on a solar
energy system, and makes additional changes to the Solar
Rights Act. The major provisions of this bill include:
a) A 24-hour turnaround on permit applications for small,
residential rooftop solar energy systems;
b) A two-day turnaround on inspections for these systems,
with a limit of only one inspection;
c) Requiring a finding, based on substantial evidence,
before a city or county may require a use permit for a
solar energy system, rather than the existing law
requirement of a good faith belief; and,
d) Reducing the threshold under which restrictions on solar
energy systems are considered reasonable under CC&Rs, and
reducing, from 60 days to 30 days, the period during which
an application required by CC&Rs for the installation or
use of a solar energy system shall be deemed approved,
unless that delay is the result of a reasonable request for
additional information.
This bill also contains a number of conforming and updating
changes. The provisions of this bill would apply to all
cities and counties in California, including charter cities.
This bill is author-sponsored.
2)Author's statement . According to the author, "Currently,
California's solar permitting structure is a patch work of
various regulations and requirements that vary from city to
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city and county to county. This results in a lack of
certainty and hinders the ability of companies to scale and
reduce costs. Requirements in one city can differ drastically
from a neighboring city even though the same solar system is
being installed on a similar home.
"Several jurisdictions, such as the City of Los Angeles, San
Jose, Richmond, Oakland, and San Diego County have already
developed streamlined permitting requirements for small
residential projects that meet certain criteria. These local
governments have demonstrated that we can reduce permitting
timeframes while maintaining important safety protections.
"By improving the efficiency of solar permitting statewide, AB
2188 will help lower the cost of solar installations and
further expand the accessibility of solar to more California
homeowners who want to control their electricity bills and
generate their own clean energy. In addition, making solar
more affordable will help the state reach its renewable energy
and greenhouse gas reduction goals, and create more jobs while
maintaining the safety of solar systems."
3)Background . The California Legislature enacted the Solar
Rights Act in 1978 to protect a homeowner's right to install a
solar energy system by limiting a homeowner association's
(HOA) ability to object to such installations through its
CC&Rs. The Solar Rights Act allows CC&Rs to include
provisions that impose reasonable restrictions on solar energy
systems. Reasonable restrictions include those that: do not
significantly increase the cost
of the solar system; do not significantly decrease the system's
efficiency or specified performance; and, allow for an
alternative system of comparable cost, efficiency and
benefits. "Significant" is further defined as those
restrictions that increase the system's cost by more than 20%
or decrease the system's efficiency by more than 20%.
AB 2473 (Wolk), Chapter 789, Statutes of 2004, updated the
Solar Rights Act by specifying standards for what constitutes
"significant" increases in solar energy system costs or
decreases in those systems' efficiency. The bill also
declared that solar energy system installation is a matter of
statewide concern, and made a local government's grant of
permission to install a solar energy system ministerial rather
than discretionary unless the permitting agency has good cause
to believe doing so would create an adverse impact on public
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health or safety, in which case an application for a
discretionary permit may be required. The local government
cannot refuse to approve that application unless it makes
detailed written findings based on substantial evidence that
granting the permit will create specific adverse impacts on
public health or safety. If conditions are placed on an
approval to mitigate public health or safety impacts, the
required mitigation must be designed to accomplish its goal at
the lowest possible cost.
4)Solar Energy Initiative : In 2005, the California Public
Utilities Commission through regulations established subsidy
programs for the installation of solar photovoltaic systems
(PV) administered by the California Energy Commission. These
programs, known collectively as the California Solar
Initiative (CSI), provide $3.2 billion in subsidies through
rebates for the installation of photovoltaic projects. In
2006, the Legislature passed SB 1 (Murray), Chapter 132,
Statutes of 2006, the Governor's Million Solar Homes Program,
which established the goal of installing 3,000 megawatts of
solar generation capacity, establishing a self-sufficient
solar industry, and placing PV systems on 50% of new homes in
13 years.
5)Previous legislation . AB 1801 (Campos), Chapter 538, Statutes
of 2012, prohibited a city or county from basing the
calculation of a permit fee for the installation of a solar
energy system on the valuation of the system, or any other
factor not directly associated with the cost to issue the
permit, and required the city or county to separately identify
each fee assessed on the applicant for the installation of the
system on the invoice provided to the applicant.
SB 1222 (Leno), Chapter 614, Statutes of 2012, placed a cap on
the amount of permit fees charged by a city or county for both
residential and commercial rooftop solar energy systems,
unless a city or county makes written findings and adopts a
resolution or ordinance providing substantial evidence of the
reasonable cost to issue the permit and why the cost exceeds
the specified caps.
AB 1892 (Smyth), Chapter 40, Statutes of 2008, provided that a
prohibition or restriction on the installation or use of a
solar energy system in any of the governing documents of a CID
is void and unenforceable.
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AB 2180 (Lieu), Chapter 539, Statutes of 2008, required an HOA
in a CID to respond to a request from a member to install a
solar energy system in his/her separate interest within 60
days.
AB 2473 (Wolk), Chapter 798, Statutes of 2004, required cities
and counties to permit the installation of solar energy
systems if the system meets specified requirements, and
redefined the term "significantly" in regard to restrictions
on solar systems that raise costs or decrease efficiency.
6)Arguments in support . The California Solar Energy Industries
Association, in support, states, "Permitting at the local
level in California is a patchwork quilt of rules,
requirements and timelines that differ within as well as
between, the hundreds of jurisdictions in the state. Although
the solar industry has greatly standardized the equipment of
rooftop solar systems - meaning a residential system installed
in Sacramento is basically identical to the system installed
in Palm Springs - the rules and procedures can vary wildly
from one city to another. As a result, solar companies have
to employ cadres of staff whose job is solely to keep up with
the various rules and regulations needed to essentially permit
the same solar system.
"According to a recent Lawrence Berkeley Labs (LBL) study, the
time delays and procedural variations associated with the
issuance of building permits keeps the installed price of
solar higher than it should be. These higher prices frustrate
the ability of installers to achieve economies of scale and
prevents solar from becoming more affordable. Specifically,
LBL reports that streamlined permitting practices at the city
level can reduce the cost of residential solar systems by
$1,350-$3,850 for the average 5 kW system.
"Further adding to the cost of solar power, permitting and
inspection timelines can be long. While it can take just one
day to install a small residential solar system, it can take
up to two months in some situations to just get through the
initial permitting process, not to mention to get inspected.
Again, LBL's research suggests that the best permitting
practices can shorten development times by 24 days.
"The time delays associated with permitting create a unique
cost burden on the industry. This is because unlike many
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other permitted projects (HVAC, new roof, etc.), solar systems
cannot be interconnected to the grid until a permit is issued
by the local jurisdiction. The solar installer won't even
contact the local utility company until the permit has been
issued. Unlike a new roof or an HVAC system that can be used
and useful while waiting for a permit, the solar system just
sits there on the customer's roof, unable to generate a single
electron.
"Last but not least, the barriers in some local jurisdictions
can also create a market barrier for consumers interested in
going solar. There are some jurisdictions that make it so
difficult to get a permit that solar contractors simply refuse
to do business there."
7)Arguments in opposition . The League of California Cities, in
opposition, writes, "While we remain supportive of expanding
access to renewable energy resources, including residential
solar, we do not believe that the rigid solar permit and
inspection process as mandated in
AB 2188 is the right approach. Requiring local jurisdictions to
uniformly issue solar permits in an "over the counter" fashion
within 24 hours and inspect solar installations within two
days of the request would be very problematic for many local
governments still recovering from the historic economic
downturn. A local jurisdiction's ability to process a permit
application and complete an inspection in an expedited manner
is largely driven by available funding and trained staff.
Furthermore, many municipalities still impose mandatory
furloughs on Fridays, which limit their ability to provide
services under a specified timeline.
"It should also be noted that AB 2188 could pose a threat to
public safety. During the permit review process, many cities
perform an onsite inspection, prior to issuing the permit, to
ensure structural soundness. This most often occurs when a
city lacks adequate building records of the dwelling. AB
2188, as amended April 21, 2014, would limit a city to one
inspection, thus essentially prohibiting a city from visually
inspecting a dwelling prior to installation. Additionally,
due to this measure's 24 hour permit approval mandate, local
fire departments may no longer have the ability to participate
in the "plan check" phase of the permit approval process to
verify that no fire hazards are present and the installation
complies with all applicable fire codes.
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"Building permits and inspections are required by state law,
regulations, and local ordinances to help ensure public
safety. By enforcing these laws, local governments
essentially act as a
consumer protection agency. AB 2188 could jeopardize this
proven process by forcing cities and counties to potentially
overlook shortcomings in solar permit applications or
installations in order to comply with the bill's highly
restrictive approval timeline."
8)Committee amendment . In order to maintain consistency with
identical provisions in the Health and Safety Code, remove
redundancies, and correct drafting errors, the Committee may
wish to adopt the following amendments:
a) Amend Health and Safety Code section 17959.1 to conform
to the provisions of this bill.
b) On page 6, in lines 35 and 36, delete "therefore, this
section shall apply to every city in this state, including
charter cities"
c) On page 10, in lines 2-5, delete "If a conflict arises
between the requirements in this section and any
requirements in state fire, electrical, structural, or
building codes, the requirements in this section shall
apply."
REGISTERED SUPPORT / OPPOSITION :
Support
1st Light Energy
Arise Solar
ASI Hastings, Inc.
Aztec Solar, Inc.
BMC Solar
Booth Construction
Brightline Defense Project
California League of Conservation Voters
California Solar Energy Industries Association
Chico Electric
City of Oakland
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Clean Power Finance
Clean Solar
Cobalt Power Systems
Commission on the Environment of the City and County of San
Francisco
Cosmic Solar, Inc.
Delta Solar Electric, Inc.
Enphase Energy
Environment California
Support (continued)
Environmental Defense Fund
FAFCO, Inc.
Freedom Solar
HelioPower
Home Energy Systems, Inc.
Horizon Solar Power
Hot Purple Energy
Insoltech Solar
Luminalt
Marin Clean Energy
Mayor Gayle McLaughlin, City of Richmond
Mayor Tom Bates, City of Berkeley
Oakland Metropolitan Chamber of Commerce
One Block Off the Grid
Presente.org
Real Goods Solar
Renova Energy Corp.
Rising Sun Energy Center
Sierra Club California
Sierra Pacific Home & Comfort, Inc.
Skyline Innovations
Solar Census
Solar Energy Industries Association
Solar Roof Dynamics
Solar Universe, Inc.
SolarCity
SolarCraft
Solartronics
Sonoma Clean Power
Spectrum Energy Development, Inc.
Stellar Solar
Sullivan Solar Power
Sun Light & Power
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Sun Pacific Solar Electric, Inc.
Suncrest Solar
Sungevity
Sunrun
TerraVerde Renewable Partners
Unique Solar
Vote Solar
Westcoast Solar Energy
Zep Solar
Individual letters (8)
Opposition
American Planning Association, California Chapter
California Association of Electrical Workers
California Building Officials
California Coalition of Utility Employees
California Fire Chiefs Association
California Municipal Utilities Association
California State Association of Counties
California State Pipe Trades Council
Cities of Beaumont, Lompoc and Thousand Oaks
County of Orange
Elevator Constructors Union
Fire Chiefs Association of Santa Barbara County
League of California Cities
Northern California Power Agency
Rural County Representatives of California
Urban Counties Caucus
Western States Council of Sheet Metal Workers
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958