BILL ANALYSIS �
AB 2188
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2188 (Muratsuchi)
As Amended August 14, 2014
Majority vote
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|ASSEMBLY: |58-8 |(May 27, 2014) |SENATE: |22-6 |(August 20, |
| | | | | |2014) |
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Original Committee Reference: L. GOV.
SUMMARY : Requires every city or county to adopt an ordinance
that creates an expedited permitting process for small,
residential rooftop 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.
The Senate amendments :
1)Specify that a city or a county consult with the local fire
department or district and the utility director, if the city
or county operates a utility, in adopting the ordinance
required by this bill.
2)Specify that an application that satisfies the information
requirements in the checklist required by this bill, as
determined by the city or county, shall be deemed complete.
3)Require a city or county to approve an application and issue
all required permits or authorizations, upon confirmation by
the city or county of the application and supporting documents
being complete and meeting the requirements of the checklist,
and consistent with the ordinance.
4)Require, upon receipt of an incomplete application, a city or
county to issue a written correction notice detailing all
deficiencies in the application and any additional information
required to be eligible for expedited permit issuance.
5)Specify that the checklist and required permitting
documentation shall be published on a publicly accessible Web
site only if the city or county has a website.
6)Require a city or county to state, in the ordinance required
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under this bill, the reasons for its inability to accept
electronic signatures.
7)Provide that acceptance of an electronic signature shall not
be required, if a city or county determines that it is unable
to authorize the acceptance of an electronic signature on all
forms, applications, and other documents in lieu of a wet
signature by an applicant.
8)Require a city or county, in developing the ordinance required
by this bill, to substantially conform its expedited,
streamlined permitting process with the recommendations for
expedited permitting, including the checklists and standard
plans, contained in the most current version of the California
Solar Permitting Guidebook (Guidebook) and adopted by the
Governor's Office of Planning and Research. A city or county
may adopt an ordinance that modifies the checklists and
standards found in the Guidebook due to unique climactic,
geological, seismological, or topographical conditions.
9)Delete language requiring a single inspection within five
business days, and instead require an inspection to be done in
a timely manner.
10)Allow a consolidated inspection, except that a separate fire
safety inspection may be performed in a city or county that
does not have an agreement with a local fire authority to
conduct a fire safety inspection on behalf of the authority.
11)Delete language allowing a city or county that determines
that it is unable to provide an inspection within five
business days to hold a public hearing and adopt an ordinance
or resolution providing for a different time period or
different means for scheduling inspections.
12)Delete language requiring, in the case of a failed
inspection, subsequent inspections to conform to this bill's
requirements for an initial inspection and instead specify
that subsequent inspections need not conform to this bill's
requirements for an initial inspection.
13)Require solar energy systems used for heating water in single
family residences and solar collectors used for heating water
in commercial or swimming pool applications to be certified by
an accredited listing agency as defined in the Plumbing and
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Mechanical Codes.
14)Make technical and clarifying 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 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
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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 Solar Ratings and Certification Corporation
(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
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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 the covenants,
conditions, or restrictions (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.
AS PASSED BY THE ASSEMBLY , this bill:
1)Required, 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)Required each city, county, or city and county, in developing
an expedited permitting process, to adopt a checklist of all
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requirements with which small rooftop solar energy systems
shall comply to be eligible for expedited review.
3)Required 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)Required the checklist specified in 2) above, and required
permitting documentation to be published on a publically
accessible Internet Web site.
5)Required 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.
6)Required 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)Required, 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)Prohibited 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
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purpose of managing a common interest development.
9)Required 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)Provided 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.
11)Required every solar energy system for heating water to be
certified by an accredited listing agency as defined by this
bill, rather than SRCC or other nationally recognized
certification agencies, and deletes language requiring the
certification to be for the entire solar energy system and
installation.
12)Provided, 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 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)Provided, 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)Reduced, 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)Defined "accredited listing agency" to mean a standards or
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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)Defined "electronic submittal" to mean the utilization of
email, the Internet, or facsimile.
17)Defined "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
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)Made findings and declarations regarding the state's
distributed generation and solar energy policies, and makes
updating and conforming changes.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS :
1)Purpose of this bill. This bill requires every city and
county to adopt an ordinance that creates an expedited
permitting process for small, residential rooftop 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
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small, residential rooftop solar energy systems if they
meet a checklist of system requirements that is developed
by each local agency;
b) Require inspections for these systems "in a timely
manner," and generally require only one inspection, with
specified exceptions;
c) Require, before a city or county may require a use
permit for a solar energy system, a finding based on
"substantial evidence," 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 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
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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 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
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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 City of Oakland, in support,
states, "Recently, costs related to solar materials and
components have fallen dramatically, thus expanding access to
solar energy. The remaining impediment to access remains the
local permitting process that may be long, costly or difficult
to navigate. AB 2188 would establish a means for
municipalities to determine manageable criteria for future
solar energy permitting applications in a timely manner. In
the bill's current form we believe there is ample flexibility
for both municipalities and individuals to file and respond to
permitting requests electronically, which only furthers the
state's environmental efforts."
6)Arguments in opposition. The California Municipal Utilities
Association, in opposition, writes, "While the bill has been
amended to provide greater flexibility on how each local
jurisdiction can comply with an expedited permit process, the
nature of the legislation favors one product over all others
that are pending a permit review. Additionally, the bill
fails to recognize that not all cities receive the same
magnitude of sunshine. Some jurisdictions along the coast are
at their most cloudy during peak times, while other
jurisdictions are surrounded by tall trees. AB 2188 requires
every city and county to comply, irrespective of any evidence
demonstrating delays in small solar installation permits."
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958
FN: 0004859