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.