BILL ANALYSIS �
AB 2188
Page 1
ASSEMBLY THIRD READING
AB 2188 (Muratsuchi)
As Amended May 8, 2014
Majority vote
LOCAL GOVERNMENT 7-0 APPROPRIATIONS 14-0
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|Ayes:|Levine, Alejo, Bradford, |Ayes:|Gatto, Bigelow, |
| |Melendez, Mullin, Rendon, | |Bocanegra, Bradford, Ian |
| |Waldron | |C. Calderon, Donnelly, |
| | | |Eggman, Gomez, Holden, |
| | | |Jones, Pan, Quirk, |
| | | |Ridley-Thomas, Weber |
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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 of 1978. 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 deemed approved upon
receipt of the completed application submittal.
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
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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.
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 five 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 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. 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.
9)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.
10)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.
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11)Requires every solar energy system for heating water to be
certified by an accredited listing agency as defined by this 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.
12)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.
13)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.
14)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.
15)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.
16)Defines "electronic submittal" to mean the utilization of email,
the Internet, or facsimile.
17)Defines "small residential solar energy system" to mean all of
the following:
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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
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.
18)Makes findings and declarations regarding the state's distributed
generation and solar energy policies, and makes updating and
conforming changes.
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 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
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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.
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.
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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 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 : According to the Assembly Appropriations Committee:
1)Negligible fiscal impact to the state.
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2)Non-reimbursable costs to cities and counties to streamline their
permitting processes and perform inspections in a shortened time
frame, likely fully offset by fees cities and counties are
authorized to charge for these activities.
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:
a) Require ministerial approval of permit applications for
small, residential rooftop solar energy systems if they meet a
checklist of system requirements that is developed by each
local agency;
b) Require a five-day turnaround on inspections for these
systems, with a limit of only one inspection;
c) Require 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) Reduce the threshold under which restrictions on solar
energy systems are considered reasonable under CC&Rs, and
reduce, 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 city and
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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 Cities 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 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
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an adverse impact on public 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 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 photovoltaic systems on 50% of new homes in
13 years.
5)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
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5 kilowatt 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 other
permitted projects (HVAC [heating, ventilation, and air
conditioning], 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."
6)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 every local
jurisdiction to uniformly issue solar permits and inspect solar
installations within five days of the request would be very
problematic and costly 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. Amendments taken in the Assembly Local Government
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Committee on April 30, 2014, completely eliminate the review
process for solar permits and instead require local jurisdictions
to issue the permit in a ministerial manner upon receipt of a
completed application. Eliminating the permit review process
would prohibit cities from involving their fire department or
utility department in the permit approval process, thus removing a
jurisdiction's ability to verify that no fire hazards are present
and the installation complies with all applicable fire codes.
"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. Additionally, AB 2188 would require cities to provide
those seeking solar permits a higher level of service presently
unavailable to all other permit seekers, creating an unequal
permit playing field."
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958
FN: 0003550