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
AB 45
Page 2
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
AB 45
Page 3
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
AB 45
Page 4
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
AB 45
Page 5
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
AB 45
Page 6
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