Amended in Senate June 18, 2014

Amended in Assembly May 8, 2014

Amended in Assembly May 5, 2014

Amended in Assembly April 21, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2188

Introduced by Assembly Member Muratsuchi

February 20, 2014

An act to amend Section 714 of the Civil Code, and to amend Section 65850.5 of the Government Code, relating to solar energy.

LEGISLATIVE COUNSEL’S DIGEST

AB 2188, as amended, Muratsuchi. Solar energy: permits.

(1) Existing law provides that it is the policy of the state to promote and encourage the use of solar energy systems, as defined, and to limit obstacles to their use. Existing law states that the implementation of consistent statewide standards to achieve timely and cost-effective installation of solar energy systems is not a municipal affair, but is instead a matter of statewide concern. Existing law 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. Existing law requires a solar energy system for heating water to be certified by the Solar Rating Certification Corporation or another nationally recognized certification agency.

This bill would specify that these provisions address a statewide concern. The bill would additionally require a city, county, or city and county to adopt, on or before September 30, 2015, begin insert in consultation with specified public entities end insert an ordinance that creates an expedited, streamlined permitting process for small residential rooftop solar energy systems, as specified. The bill would additionally require a city, county, or city and county to inspect a small residential rooftop solar energy system eligible for expedited review within 5 business days of any request, as specified, and to perform only one inspection, begin insert except end insert as specified. The bill would prohibit a city, county, or city and county from conditioning the approval of any solar energy system permit on approval of that system by an association that manages a common interest development. The bill would require a solar energy system for heating water to be certified by an accredited listing agency, as defined.

begin insert

Because the bill would impose new duties upon local governments and local agencies, it would impose a state-mandated local program.

end insert

(2) Existing law prohibits 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 from effectively prohibiting or restricting the installation or use of a solar energy system. Existing law exempts from that prohibition provisions that impose reasonable restrictions on a solar energy system that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance. Existing law defines the term “significantly,” for these purposes, with regard to solar domestic water heating systems or solar swimming pool heating systems that comply with state and federal law, to mean an amount exceeding 20% of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding 20%, and with regard to photovoltaic systems that comply with state and federal law, an amount not to exceed $2,000 over the system cost or a decrease in system efficiency of an amount exceeding 20%, as specified. Existing law requires a solar energy system for heating water subject to the provisions described above to be certified by the Solar Rating Certification Corporation or another nationally recognized certification agency.

This bill would instead define the term “significantly,” for these purposes, with regard to solar domestic water heating systems or solar swimming pool heating systems that comply with state and federal law, to mean an amount exceeding 10% of the cost of the system, not to exceed $1,000, or decreasing the efficiency of the solar energy system by an amount exceeding 10%, and with regard to photovoltaic systems that comply with state and federal law, an amount not to exceed $1,000 over the system cost or a decrease in system efficiency of an amount exceeding 10%, as specified. The bill would require a solar energy system for heating water subject to the provisions described above to be certified by an accredited listing agency, as defined.

(3) Existing law requires an application for approval for the installation or use of a solar energy system to be processed and approved by the appropriate approving entity in the same manner as an application for approval of an architectural modification to the property and prohibits the approver from willfully avoiding or delaying approval. Existing law requires the approving entity to notify the applicant in writing within 60 days of receipt of the application if the application is denied, as specified.

The bill would instead require the approving entity to notify the applicant in writing within begin delete 30 end delete begin insert 45 end insert days of receipt of the application if the application is denied, as specified.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(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 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.

(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.

SEC. 2.  

Section 714 of the Civil Code is amended to read:

714.  

(a) 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 defined in Section
4150 or 6552, that effectively prohibits or restricts the installation
or use of a solar energy system is void and unenforceable.

(b) This section does 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.

(c) (1) A solar energy system shall meet applicable health and
safety standards and requirements imposed by state and local
permitting authorities, consistent with Section 65850.5 of the
Government Code.

(2) Every solar energy system for heating water shall be certified
by an accredited listing agency as defined in Section 65850.5 of
the Government Code.

(3) A solar energy system for producing electricity shall also
meet all applicable safety and performance standards established
by the National Electrical Code, the Institute of Electrical and
Electronics Engineers, and accredited testing laboratories such as
Underwriters Laboratories and, where applicable, rules of the
Public Utilities Commission regarding safety and reliability.

(d) For the purposes of this section:

(1) (A) 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 percent of the
cost of the system, but in no case more than one thousand dollars
($1,000), or decreasing the efficiency of the solar energy system
by an amount exceeding 10 percent, as originally specified and
proposed.

(B) For photovoltaic systems that comply with state and federal
law, “significantly” means an amount not to exceed one thousand
dollars ($1,000) over the system cost as originally specified and
proposed, or a decrease in system efficiency of an amount
exceeding 10 percent as originally specified and proposed.

(2) “Solar energy system” has the same meaning as defined in
paragraphs (1) and (2) of subdivision (a) of Section 801.5.

(e) (1) Whenever approval is required for the installation or
use of a solar energy system, the application for approval shall be
processed and approved by the 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.

(2) For an approving entity that is an association, as defined in
Section 4080 or 6528, and that is not a public entity, both of the
following shall apply:

(A) The approval or denial of an application shall be in writing.

(B) If an application is not denied in writing within begin delete 30 end delete begin insert 45 end insert 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.

(f) Any entity, other than a public entity, that willfully violates
this section shall be liable to the applicant or other party for actual
damages occasioned thereby, and shall pay a civil penalty to the
applicant or other party in an amount not to exceed one thousand
dollars ($1,000).

(g) In any action to enforce compliance with this section, the
prevailing party shall be awarded reasonable attorney’s fees.

(h) (1) A public entity that fails to comply with this section
may not receive funds from a state-sponsored grant or loan program
for solar energy. A public entity shall certify its compliance with
the requirements of this section when applying for funds from a
state-sponsored grant or loan program.

(2) A local public entity may not exempt residents in its
jurisdiction from the requirements of this section.

SEC. 3.  

Section 65850.5 of the Government Code is amended
to read:

65850.5.  

(a) 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 Section 5 of Article XI of the California Constitution, but is
instead a matter of statewide concern. 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.
It is the policy of the state to promote and encourage the use of
solar energy systems and to limit obstacles to their use. It is the
intent of the Legislature that local agencies comply not only with
the language of this section, 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.

(b) A city or county shall administratively approve applications
to install solar energy systems through the issuance of a building
permit or similar nondiscretionary permit. Review of the
application to install a solar energy system shall be limited to the
building official’s review of whether it meets all health and safety
requirements of local, state, and federal law. The requirements of
local law shall 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. However,
if the building official of the city or county makes a finding, based
on substantial evidence, that the solar energy system could have
a specific, adverse impact upon the public health and safety, the
city or county may require the applicant to apply for a use permit.

(c) A city, county, or city and county may not deny 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 shall include the basis for the rejection of
potential feasible alternatives of preventing the adverse impact.

(d) The decision of the building official pursuant to subdivisions
(b) and (c) may be appealed to the planning commission of the
city, county, or city and county.

(e) Any conditions imposed on an application to install a solar
energy system shall be designed to mitigate the specific, adverse
impact upon the public health and safety at the lowest cost possible.

(f) (1) A solar energy system shall meet applicable health and
safety standards and requirements imposed by state and local
permitting authorities.

(2) Every solar energy system for heating water shall be certified
by an accredited listing agency.

(3) A solar energy system for producing electricity shall meet
all applicable safety and performance standards established by the
National Electrical Code, the Institute of Electrical and Electronics
Engineers, and accredited testing laboratories such as Underwriters
Laboratories and, where applicable, rules of the Public Utilities
Commission regarding safety and reliability.

(g) On or before September 30, 2015, every city, county, or city
and begin delete county end delete begin insert county, in consultation with the local fire department
or district and the utility director, if the city, county, or city and
county operates a utility, end insert shall adopt an ordinance, consistent with
the goals and intent of subdivision (a), that creates an expedited,
streamlined permitting process for small residential rooftop solar
energy systems. In developing an expedited permitting process,
the city, county, or city and county shall adopt a checklist of all
requirements with which small rooftop solar energy systems shall
comply to be eligible for expedited review. An application that
begin delete meet the end delete begin insert satisfies the information end insert requirements in the begin delete checklist end delete
begin insert checklist, as determined by the city, county, and city and county, end insert
shall be deemed begin delete approved upon receipt of the completed
application submittal. end delete begin insert complete. Upon confirmation by the city,
county, or city and county of the application and supporting
documents being complete and meeting the requirements of the
checklist, a city, county, or city and county shall, consistent with
subdivision (b), approve the application and issue all required
permits or authorizations. Upon receipt of an incomplete
application, a city, county, or city and county shall issue a written
correction notice detailing all deficiencies in the application and
any additional information required to be eligible for expedited
permit issuance. end insert The checklist and required permitting
documentation shall be published on a publically accessible Internet
Web begin delete site end delete begin insert site, if the city, county, or city and county has an Internet
Web site, end insert and the city, county, or city and county shall allow for
electronic submittal of a permit application and associated
documentation, and shall authorize the electronic signature on all
forms, applications, and other documentation in lieu of a wet
signature by an applicant. In developing the ordinance, the city,
county, or city and county shall 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.

(h) For a small residential rooftop solar energy system eligible
for expedited review, only one inspection shall be required and
that one inspection shall be scheduled within five business days
of a request, if the request is received during business hours. If the
request is received after business hours, the inspection shall be
scheduled within five business days of the beginning of the next
business day after receipt of the request. If a city, county, or city
and county determines that it is unable to provide an inspection
within five business days of a request, the city, county, or city and
county may hold a public hearing and adopt an ordinance or
resolution providing for a different time period or different means
for scheduling inspections. begin delete If the small residential rooftop solar
energy system fails inspection, a subsequent inspection shall also
conform to the requirements of this subdivision. end delete

(i) A city, county, or city and county shall not condition approval
for any solar energy system permit on the approval of a solar
energy system by an association, as that term is defined in Section
4080 of the Civil Code.

(j) The following definitions apply to this section:

(1) “A feasible method to satisfactorily mitigate or avoid the
specific, adverse impact” includes, but is not limited to, any
cost-effective method, condition, or mitigation imposed by a city,
county, or city and county on another similarly situated application
in a prior successful application for a permit. A city, county, or
city and county shall use its best efforts to ensure that the selected
method, condition, or mitigation meets the conditions of
subparagraphs (A) and (B) of paragraph (1) of subdivision (d) of
Section 714 of the Civil Code.

(2) “Accredited listing agency” means 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.

(3) “Electronic submittal” means the utilization begin delete any end delete begin insert of one or
more end insert of the following:

(A) Email.

(B) The Internet.

(C) Facsimile.

(4) “Small residential solar energy system” means all of the
following:

(A) A solar energy system that is no larger than 10 kilowatts
alternating current nameplate rating or 30 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 paragraph (3)
of subdivision (c) of Section 714 of the Civil Code.

(C) A solar energy system that is installed on a single or duplex
family dwelling.

(D) A solar panel or module array that does not exceed the
maximum legal building height.

(5) “Solar energy system” has the same meaning set forth in
paragraphs (1) and (2) of subdivision (a) of Section 801.5 of the
Civil Code.

(6) “Specific, adverse impact” means a significant, quantifiable,
direct, and unavoidable impact, based on objective, identified, and
written public health or safety standards, policies, or conditions
as they existed on the date the application was deemed complete.

SEC. 4.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
a local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.