AB 2188 Implementation Requirements For Rooftop Solar Systems Wednesday, May 6, 2015 Opening General Session; 1:00 – 3:00 p.m. Stephen E. Velyvis, Burke, Williams & Sorensen DISCLAIMER: These materials are not offered as or intended to be legal advice. Readers should seek the advice of an attorney when confronted with legal issues. Attorneys should perform an independent evaluation of the issues raised in these materials. Copyright © 2015, League of California Cities®. All rights reserved. This paper, or parts thereof, may not be reproduced in any form without express written permission from the League of California Cities®. For further information, contact the League of California Cities® at 1400 K Street, 4th Floor, Sacramento, CA 95814. Telephone: (916) 658-8200. 35 Notes:______________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ 36 League of California Cities City Attorneys’ Spring Conference Monterey, CA May 2015 AB 2188 Implementation Requirements For Rooftop Solar Systems Stephen E. Velyvis, Esq. Burke, Williams & Sorensen, LLP 1901 Harrison Street, Suite 900 Oakland, CA 94612 [email protected] www.bwslaw.com 37 AB 2188 Implementation Requirements For Rooftop Solar Systems I. INTRODUCTION. The French physicist Alexandre-Edmond Becquerel, who studied the solar spectrum, magnetism, electricity and optics, is credited with the discovery of the photovoltaic effect, the operating principle of the solar cell, in 1839. The word photovoltaic, commonly known as “PV” for short, describes the process of converting sunlight into electricity – “photo,” meaning pertaining to light, and “voltaic,” meaning producing voltage. Amazingly, Edmond Becquerel purportedly discovered the PV effect at the age of 19 during an experiment in his father’s laboratory that resulted in the illumination of the chemical compound silver chloride (which generated voltage and current) when it was placed in an acidic solution while connected to platinum electrodes. It took more than 100 years, however, for the concept of producing electricity from sunlight to take off, but solar energy innovation finally broke through in the 1950’s when scientists at Bell Laboratories created and publicly demonstrated the first practical PV cell and has advanced quickly ever since, and exponentially as of late. California has long embraced solar energy, and officially began promoting and encouraging solar energy in the 1970’s when it began to provide solar energy technology investment incentives1 and enacted the Solar Rights Act and the Solar Shade Control Act2 to protect a consumer’s right to install and operate solar energy technology on homes and businesses. Despite this long-held commitment to the promotion of solar energy, and the fact that California leads the nation in rooftop solar installations, even greater solar adoption is needed to achieve the state’s ambitious renewable energy and greenhouse gas (GHG) emissions reduction goals (e.g., requiring at least one-third of the state’s electricity come from clean energy sources and statewide GHG emissions be reduced to 1990 levels by 2020.). Further, recent studies, including two prepared by or in conjunction with the Lawrence Berkeley National Laboratory, report that the time delays and procedural variations associated with the issuance of solar system building permits elevates the installed price of solar higher than it should be and that the implementation of streamlined permitting practices at the local level can significantly reduce the cost of 3 residential solar systems and cut development time. Together, the need for greater 1 A solar energy tax credit was instituted in 1976 and codified in California Revenue and Taxation Code section 23601 (and then repealed in 1987). 2 The Solar Rights Act and Solar Shade Act were both adopted in 1978. 3 Two of these reports, entitled: (1) “The Impact of City-level Permitting Processes on Residential Photovoltaic Installation Prices and Development Times: An Empirical Analysis of Solar Systems in California Cities,” and (2) “How Much Do Local Regulations Matter? Exploring the Impact of Permitting and Local Regulatory Processes on PV Prices in the United States,” can be found at the following links, 38 AB 2188 Implementation Requirements For Rooftop Solar Systems solar adoption and the desire to further spur residential solar systems by reducing costs and delays lead former Democratic Assemblyman Albert Muratsuchi to introduce, the Legislature to pass and Governor Brown to sign AB 2188 into law. So now, cities, especially those that currently do not have an ordinance addressing solar system permitting, must focus on preparing and adopting an ordinance doing just that by September 30, 2015 to comply with AB 2188. This paper begins with a brief summary of the Solar Rights Act and related laws and programs, moves on to demonstrate the specific amendments made thereto by the passage of AB 2188, and concludes by examining those changes as they pertain to development of the required ordinance in the first instance, and then to each step of the typical permitting process - from permit application, to the review/approval/denial thereof, and, if approved, to the final inspection. II. THE SOLAR RIGHTS ACT AND RELATED SOLAR ENERGY LAWS AND PROGRAMS PROMOTING SOLAR ENERGY SYSTEMS AND RESTRICTING LOCAL REGULATION THEREOF.4 A. The Solar Rights Act. The Solar Rights Act was enacted in 1978 (AB 3250), went in to effect on January 1, 1979, and is comprised of the following laws: Civil Code Sections 714, 714.1, 801 and 801.5; Health and Safety Code Section 17959.1; and Government Code Sections 65850.5, 66473.1 and 66475.3. The Legislature made its intention crystal clear early on by declaring, in Section 65850.5(a), as follows: 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 respectively: http://emp.lbl.gov/sites/all/files/lbnl-6140e.pdf and http://emp.lbl.gov/sites/all/files/lbnl- 6807e_0.pdf. 4 This section is not a comprehensive review of all solar energy-related laws, but rather, a focused summary of select solar energy-related laws associated with laying the foundation for and encouraging the growth of small rooftop residential solar energy systems, and restricting local government regulation thereof. 39 AB 2188 Implementation Requirements For Rooftop Solar Systems section, but also the legislative intent to encourage the installation of solar energy systems by removing obstacles to, and minimizing costs of, permitting such systems. Generally speaking, the California Legislature enacted the Solar Rights Act to initiate a legal framework for solar access and to protect a homeowner’s right to install a solar energy system by limiting the ability of local governments and homeowners associations (through its covenants, conditions, and restrictions (“CC&Rs”)) to restrict solar installations. Prior to the amendments made by AB 2188, the most important provisions of the Solar Rights Act created: • Limits on CC&Rs: by prohibiting CC&Rs from unreasonably restricting the use or installation of solar energy systems (see Civil Code Sections 714 and 714.1). • Solar Easements: which created the legal rights to a solar easement and to receive sunlight across real property of another for use by a solar energy system (see Civil Code Sections 801 and 801.5), and allows cities and counties to require the dedication of solar easements in certain subdivisions as a condition of tentative map approval (see Gov’t Code Section 66475.3). • Limits on Local Government Restrictions: by discouraging local governments from adopting ordinances creating