AB 2188 Implementation Requirements For Rooftop Solar Systems League of California Cities City Attorneys Spring Conference Monterey, CA May 6, 2015 By: Stephen Velyvis
Agenda Introduction and Welcome Evolution of PV Solar Energy AB 2188 Summary of Solar Rights Act & Related Laws Review of AB 2188 s Key Amendments to the Solar Rights Act Step-By Step Implementation Guide: from development of required expedited permitting ordinance, to application and approval/denial process and final inspection Questions and Answers 1
Introduction and Welcome Stephen Velyvis Burke, Williams & Sorenson, LLP Partner: Public Law, Education Law and Litigation Practice Groups Chair: Environmental/Land Use Law Practice Team svelyvis@bwslaw.com (510) 273-8780 2
Evolution of PV Solar Energy 1976 First solar PV cell used in calculator 2014 Largest U.S. rooftop PV solar installation at Mandalay Bay (20 acres, 6.4 mw) 3
Evolution of PV Solar Energy As price goes down... 4
Evolution of PV Solar Energy Installation/capacity goes up. Globally, and... 5
Evolution of PV Solar Energy in California, including on residential rooftops 6
Evolution of PV Solar Energy Growth in 3 rd -party owned residential rooftop solar in CA 7
Evolution of PV Solar Energy Leading CA Solar Companies (offer solar lease) 8
Evolution of PV Solar Energy Impetus for AB 2188 LBNL Studies demonstrate that patchwork of varying local permitting regulations add an estimated $1,500- $3,500 in costs and a month of delay to solar permitting Solar companies, solar industry trade groups and public interest environmental organizations lobby for Statemandated streamlined rooftop solar permitting process 9
AB 2188 Summary of Solar Rights Act Solar Rights Act (1978): is comprised of Civil Code 714, 714.1, 801 and 801.5; Health and Safety Code 17959.1; and Gov t Code 65850.5, 66473.1 and 66475.3. Legislative intent: Promote and encourage solar energy systems, limit obstacles to their use and prohibit local agencies and homeowners associations from creating unreasonable barriers thereto. Intent language restricting local agency control (precursor to AB 2188) 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.
AB 2188 Summary of Solar Rights Act Prior to AB 2188, the key provisions of the Act: Voided CC&Rs from prohibiting and limited CC&Rs from unreasonably restricting solar energy systems (CC 714, 714.1). Created solar easement rights, permitted cities to require dedication of solar easements in certain subdivisions (CC 801, 801.5; GC 66475.3). Limited local government restrictions on solar energy systems and required use of non-discretionary permitting process (GC 65850.5, H&SC 17959.1), required compliance with Act to get state solar funds (CC 714). Created passive solar opportunities by requiring specified subdivisions to provide for future passive and natural heading/cooling opportunities (GC 66473.1). 11
AB 2188 Summary of Related Laws/Programs Solar Shade Control Act (1978), codified in PRC 25980-25986, restricts planting/growing of trees/shrubs that cast shade on a neighbor s solar collector by prohibiting shading on > 10% of panel between 10 a.m. and 2 p.m. CA Solar Initiative Program Product of Governor Schwarzenegger s Million Solar Roofs vision and SB 1 (2006), administered by CPUC and provides rooftop solar system subsidies for customers of PGE, SCE and SDGE. CEQA Statutory Exemption (SB 226, 2011) - PRC 21080.35 exempts solar projects proposed on existing buildings/parking lots [designated and used for parking for at least 2 prior years] that do not require native tree removal and where associated equipment meets size, location and other conditions. 12
AB 2188 s Key Provisions Minimum Eligibility Criteria* for Expedited Permitting Solar energy system that is no larger than 10 kw alternating current or 30 kw thermal; Solar energy system that conforms to all applicable fire, structural, electrical and other building codes; Solar energy system that is to be installed on a single or duplex family dwelling; and Solar panel/module will not exceed maximum legal building height. * From definition of small residential rooftop solar system in GC 65850.5(j)(3); which uses definition of solar energy system from CC 801.5(a).
AB 2188 s Key Provisions Ordinance: Requires every city/county to adopt an ordinance by September 30, 2015 creating an expedited, streamlined permitting process for small residential rooftop solar systems (GC 65850.5(g)(1)). Checklist/Standard Plan: Every city/county must adopt a checklist of all requirements that applicants shall comply with as well as a standard plan and other submittal documents necessary to be eligible for expedited review, and must publish the checklist, standard plan and other permitting documents on the City s website (GC 65850.5(g)(1) and (2)). Electronic Submittal: Every city/county must allow for electronic submittal (Web, email or fax) of permit application and associated documentation. (GC 65850.5(g)(2)). Electronic Signatures: Requires cities/counties to allow (if able) electronic signatures on all required forms in lieu of original/wet signature (GC 65850.5(g)(2)). 14
AB 2188 s Key Provisions (Cont d) Non-Discretionary Ministerial Approval: Administrative approval/ministerial issuance of permit required for most (see below) applications satisfying all checklist requirements (GC 65850.5(g)(1)). Prohibits COA Requiring HOA Approval (GC 65850.5(i)). Inspection: Only one, timely inspection required for systems eligible for expedited review (prohibiting pre- or roughinspections) (GC 65850.5(h)). Tightening of HOA Approval Process: Lowers HOA allowable impact on cost/efficiency of solar hot water and PV systems (impact on cost can t exceed 10% or $1,000, impact on efficiency can t exceed 10%, down from 20% or $2,000) and shortens time an applicant seeking HOA approval must wait for a written denial from 60-45 days. (CC 714(d)(1)(A)-(B), and (e)(2)(b). 15
AB 2188 Implementation Guide Ordinance Expedited permitting process must be consistent with Act and substantially conform with the recommendations, standard plans and checklists found in the most updated version of the California Solar Permitting Guidebook. (GC 65850.5(g)(2)). Consult and consider agreement with fire dep t/district, model MOU available at: http://energycenter.org/sites/default/files/docs/n av/policy/research-andreports/toolkit_document_6.docx Per AB 2188 s author, use of substantially conform language permits discretion to modify checklist, standards and other Guidebook recommendations, including if necessary due to unique climatic, geological, seismological or topographical conditions.
AB 2188 Implementation Guide Application and Approval/Denial Process If application is deemed incomplete, a written correction notice listing all deficiencies and any additional info required to be eligible for expedited permit issuance must be issued (GC 65850.5(1)). In addition to the Act s requirement to allow electronic submittal of application documents, the Guidebook recommends facilitation of over-the-counter or same day plan review and permit issuance (or automatic approval via online software), and that the entire application review and permit approval process, regardless of method(s) used, within 3 days. Application review limited to adherence to checklist and compliance with health and safety requirements, and approval is mandatory if application satisfies all such requirements and checklist items UNLESS building official finds, based on substantial evidence, that system could have specific, adverse impact on public health and safety, in which case a discretionary use permit may be required (GC 65850.5(b)).
AB 2188 Implementation Guide Application and Approval/Denial Process (Cont d) IF use permit required, any condition imposed to mitigate health and safety impact must do so at lowest possible cost, and building official can only deny use permit based on findings that there is no feasible method to satisfactorily mitigate or avoid specific adverse impact. An appeal of building official s denial to the Planning Commission must be allowed (GC 65850.5(c)-(e), (j)(1)). Feasible method to satisfactorily mitigate or avoid specific adverse impact is defined as any cost-effective condition, method or mitigation imposed on another similarly situated application in a prior successful application for a permit (GC 65850.5(j)(1)). 18
AB 2188 Implementation Guide Permit Fees While AB 2188 is silent about permit fees, the Guidebook references the existing state laws that control and limit such fees. Those laws: (1) mandate that processing and inspection fees cannot exceed the reasonable cost of providing the services for which the fees are charged (GC 65850.55, 66016; H&SC 17951); and (2) set specific limits on fee amounts (which can only be exceeded where explicitly justified by supported findings in an adopted resolution or ordinance) as follows (GC 66015): 19
AB 2188 Implementation Guide Inspection Process Guidebook recommends: providing permit applicants with concise inspection checklist so homeowners and contractors are aware of inspection process and criteria; allowing submittal of inspection requests online or electronically; that inspection be conducted within 2 business days of receipt of inspection request; and that permittee be provided, by phone or email, with inspection time window of no more than 2 hours. Only one, final inspection is permitted BUT, where no agreement/mou with separate local fire dep t is in place, that local fire dep t may perform a separate fire safety inspection, in which case the Guidebook recommends the separate final inspections be coordinated and conducted at the same time. If solar energy system fails inspection, a subsequent inspection is allowed, and any such subsequent inspection need not conform to above-referenced requirements applicable to the first inspection (GC 65850.5(h)). 20
AB 2188 Implementation Guide http://www.opr.ca.gov/docs/california_solar_pe rmitting_guidebook_2014.pdf Includes sample forms (in various toolkit documents) for all AB 2188 requirements Customizable templates of all sample forms in the Guidebook are available online at: http://energycenter.org/permitting/guidebook/t oolkit?utm_source=guidebook&utm_medium= mixed&utm_campaign=sunshot Model Ordinance available at: http://energycenter.org/sites/default/files/docs/ nav/policy/research-andreports/ab_2188_model_ordinance.docx
Questions and Answers Stephen E. Velyvis Partner Burke Williams & Sorensen 1901 Harrison Street, Suite 900 Oakland, CA 94612 t - 510.273.8780 f - 510.839.9104 svelyvis@bwslaw.com bwslaw.com 22