AB 2188 Implementation Requirements For Rooftop Solar Systems

Transcription

1 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, 4 th Floor, Sacramento, CA Telephone: (916)

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3 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

4 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 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 incentives 1 and enacted the Solar Rights Act and the Solar Shade Control Act 2 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 residential solar systems and cut development time. 3 Together, the need for greater 1 A solar energy tax credit was instituted in 1976 and codified in California Revenue and Taxation Code section (and then repealed in 1987). 2 The Solar Rights Act and Solar Shade Act were both adopted in 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

5 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 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 ; and Government Code Sections , and The Legislature made its intention crystal clear early on by declaring, in Section (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: and e_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

6 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 ). Limits on Local Government Restrictions: by discouraging local governments from adopting ordinances creating unreasonable restrictions on the installation of solar energy systems and requires local governments to employ a nondiscretionary administrative permitting process therefor (see Gov t Code section and Health and Safety Code Section ), and requires local governments seeking state-sponsored grant or loan funds for solar energy systems to certify its compliance with certain provisions of the Act (see Civil Code Section 714). Passive Solar Opportunities: by requiring specified subdivisions to provide for future passive and natural heating and cooling opportunities (see Gov t Code Section ). Notably, the amendment to the Solar Rights Act made by AB 2473 (Wolk), Chapter 789, Statutes of 2004, introduced the significant language now contained in Government Code Section (a) that is and continues to be the foundation for the Legislature s substantial restrictions on the land use authority of local governments over solar energy systems. In that Section, the Legislature declares that [t]he 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 Solar Rights Act provisions contained in Civil Code Section 714 and Government Code Section are reproduced in their entirety in Exhibits A and B hereto to not 40

7 only provide easy access to and understanding of the key historical components of those Code Sections, but to demonstrate exactly how AB 2188 s amendments modified them to create the mandate that cities and counties adopt (or amend existing) ordinances to create a streamlined, expedited permitting process for small residential rooftop solar energy systems and even further strengthened the Act s prohibitions against actions that significantly increase the cost or decrease the efficiency of solar energy systems. B. The Solar Shade Control Act. The Solar Shade Control Act, also enacted in 1978, is codified in Division 15 (Energy Conservation and Development), Chapter 12 of the California Public Resources Code, and is comprised of Sections through The Solar Shade Control Act provides additional protections to solar energy system owners by restricting persons owning or in control of adjacent properties from planting and/or growing trees and shrubs that cast shade on a neighbor s solar collector. As amended in 2008, the Solar Shade Act now specifies and limits the Act s protections by prohibiting the planting and growing of trees from casting a shadow on greater than ten percent of the solar collector s absorption area at any time between 10 a.m. and 2 p.m. C. The California Solar Initiative Program. The California Solar Initiative (CSI) program is a product of Governor Schwarzenegger s Million Solar Roofs vision. Through a number of regulatory decisions in 2005 and 2006 and as expressly authorized by SB 1 (Murray) passed in 2006, 5 the California Public Utilities Commission established the CSI program to provide customers of the state s three investor-owned utilities (Pacific Gas and Electric Company, Southern California Edison and San Diego Gas and Electric) with subsidies to encourage the installation of distributed rooftop solar system installations. According to the CPUC s website, the CSI program has a budget of $2.167 billion over 10 years and a goal to reach 1,940 megawatts of installed solar capacity by the end of D. CEQA Solar Energy System Exemption. One provision of SB 226, passed in 2011, added Section to the Public Resources Code declaring that certain solar energy systems are statutorily exempt from environmental review under the California Environmental Quality Act. For lead agencies, statutory CEQA exemptions are favored because they are absolute, meaning 5 SB 1 contained numerous provisions, but the Legislature s authorization of and mandates regarding the CSI are contained in Division 15, Chapter 8.8 of the California Public Resources Code, Sections through

8 they are not subject to the quagmire associated with the various exceptions that can be asserted to trump any categorical exemption. 6 To qualify under the statutory exemption codified in Section , a solar energy project must be proposed to be installed on the roof of either an existing building or at an existing parking lot which has been designated and used for parking vehicles for at least the previous two years and does not involve removal of a required or native tree over 25 years old, and associated equipment meets certain size, location and other conditions. III. UNDERSTANDING THE SOLAR RIGHTS ACT AS RECENTLY AMENDED BY REVIEWING HOW AB 2188 S AMENDMENTS IMPACT EACH STEP OF THE TYPICAL SOLAR ENERGY SYSTEM APPLICATION PROCESS. As shown in detail in the attached Exhibits A and B, AB 2188 made some subtle, and some significant changes to two of the statutes that comprise the Solar Rights Act - Civil Code Section 714 and Government Code Section Exhibits A and B reproduce those sections in their entirety, showing all of AB 2188 s additions or changes to those Code Sections in underlined text, and deletions by strikeout. The author suggests you pause here to read Exhibits A and B first, before coming back to this section, which proceeds to collect and summarize the changes as they pertain to development of the required ordinance in the first instance, and then as they pertain to each step of the typical permitting process - from permit application, to the review/approval/denial thereof, and, if approved, to the final inspection. Before doing so, however, it is important to reiterate that AB 2188 s new ordinance and permitting requirements only apply to small residential rooftop solar energy systems. Accordingly, it makes sense to begin with the statutory definition for such a system. Government Code Section (j)(3) states: (3) Small residential rooftop 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. 6 Referring to the practice of CEQA categorical exemptions and the exceptions thereto as a quagmire might now be a bit inapt given the recent decision and guidance provided by the California Supreme Court s decision in Berkeley Hillside Preservation v. City of Berkeley (March 2, 2015) 60 Cal.4 th There, the Court clarified several open questions concerning the application of the unusual circumstances exception to the categorical exemptions that apply to single-family residential and infill development projects, and in doing so, confirmed that local agencies factual determinations concerning those exemptions/exceptions are entitled to substantial deference. 42

9 (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 as defined by the authority having jurisdiction. And, Section 65850(j)(4) adds that Solar energy system has the same meaning set forth in paragraphs (1) and (2) of subdivision (a) of Section of the Civil Code. From that key starting point, we proceed with the tour. A. The Required Ordinance. As amended, the Solar Rights Act now requires the following: Every city, county, or city and county shall, in consultation with the local fire department or district and the utility director, where a city, county, or city and county operate a utility, adopt an ordinance that creates an expedited, streamlined permitting process for small residential rooftop solar energy systems consistent with the goals and intent of Government Code Section (a) on or before September 30, 2015 (see Gov t Code (g)(1)). Every city, county, or city and county shall adopt a checklist of all requirements that an applicant must comply with for a small residential rooftop solar energy system to be eligible for expedited review (see Gov t Code (g)(1)). The expedited, streamlined permitting process and checklist created must substantially conform to the recommendations for expedited permitting, including the checklist and standard plan contained in the most current version of the California Solar Permitting Guidebook ( Guidebook ) adopted by the Governor s Office of Planning and Research (OPR) (see Gov t Code (g)(2)). The most current version of the Guidebook was adopted and published by the Governor s Office of Planning and Research ( OPR ) in the Fall of Because of its 43

10 length (84 pages), it is not feasible to attach the entire Guidebook as an exhibit to this paper, but the Guidebook can be easily accessed via OPR s website at the following link: Important to these first steps, the Guidebook not only provides extensive recommendations but includes various sample forms (in various toolkit documents), including a template MOU agreement that can be used to facilitate compliance with AB 2188 s requirement that local agencies consult and coordinate with local fire departments regarding the required ordinance and related solar energy system permit review, approval and inspection duties and tasks. (See the Guidebook s Toolkit Document #6 at p. 55.) A model ordinance, addressing these requirements as well as AB 2188 s other requirements discussed below, is provided in Exhibit C for your review, consideration and use. 7 The City of San Luis Obispo recently adopted a new ordinance to comply with AB 2188, which is also attached hereto as Exhibit D as a reference. Finally, it is important to note that the requirement that the streamlined permitting process substantially conform to the recommendations in the Guidebook does provide local jurisdictions with a fair amount of discretion to modify the checklist, standards and other recommendations found in the Guidebook. The Guidebook notes that according to AB 2188 s author: The term substantially conform is intended to allow local governments enough flexibility to address potential changes that they believe are necessary while still meeting the goal of streamlining and standardizing solar permitting. Further, AB 2188 states that local governments may modify the Guidebook, if necessary, due to unique climatic, geological, seismological or topographical conditions. These modifiers are intended to provide additional flexibility for local governments and are not intended to limit how the cities and counties substantially conform to the Guidebook. 7 The model ordinance in Exhibit C is slightly modified from the one included within the AB 2188 Implementation Guide prepared by the Energy Policy Initiatives Center at the University of San Diego School of Law for the Center for Sustainable Energy, which was consulted and used to assist in the preparation of this paper. (See Kaatz, J. Anders, S. (2014) AB 2188: Implementation of the Solar Rights Act at the Local Level [which is available online at 44

11 B. Standardization of Application Requirements, Forms and Related Plans. Simply put, at its core the Solar Rights Act as amended by AB 2188 seeks to reduce the costs and delays associated with the local solar permitting process. According to AB 2188 s author, the amendments were necessary because: [c]urrently, California s solar permitting structure is a patch work of various regulations and requirements that vary from city to city and county to county... [which] 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. 8 By requiring an expedited, streamlined permitting process and checklist that substantially conforms to the recommendations, checklist and standard plan contained in the Guidebook, AB 2188 aims to standardize the application requirements, forms and process to achieve the desired reductions in costs and delay. Specifically, the Solar Rights Act now: Requires adoption of a checklist clearly listing all of the requirements that must be met by an applicant to be eligible for an expedited review of and completeness determination regarding an application for a small rooftop solar energy system (see Gov t Code (g)(1)). Requires that the checklist and other required permit application forms and documents be published on a publicly accessible Internet Website, if one is available (see Gov t Code (g)(2)). Again, the Guidebook provides a handy, ready-made checklist and other application forms and documents to assist local agencies in complying with this critical step in the AB 2188 implementation process. (See the Guidebook s Toolkit Document #1 at pp [Submittal Requirements Bulletin]; Toolkit Document #2 at p. 25 [Eligibility Checklist for Expedited Solar Photovoltaic Permitting for One- and Two-Family Dwellings]; Toolkit Document #3 and #4 at pp and 39-44, respectively [Solar PV Standard Plans]; and Toolkit Document #5 at pp [Structural Criteria].) 8 Legislative history of AB 2188 (see, e.g., May 22, 2014 Assembly Floor Analysis). 45

12 And, to make compliance with and implementation of AB 2188 as easy as possible, templates of all of the Guidebook s Toolkit Documents that local governments can edit and customize are available in Microsoft Word and PDF formats at: um=mixed&utm_campaign=sunshot Finally, the Guidebook also recommends that local jurisdictions accept online solar permit fee payments where the capability exists. It is important to note that current law mandates that permit processing and inspection fees charged by a local enforcing agency cannot exceed the reasonable cost of providing the service for which the fee is charged. (See Gov t Code and 66016; Health and Safety Code ) Current law also sets specific limits on the amount that can be charged by solar PV permit fees, which cannot be exceeded unless the reasons for the higher permit fee is explicitly justified and the applicable jurisdiction determines that it has already adopted a streamlined permit approval process. Pursuant to Government Code Section 66015, those permit fee limits are as follows: Residential - $500 for systems of 15 kilowatts or less, and $500 + $15/kilowatt for systems above 15 kilowatts; Commercial - $1,000 for systems of 50 kilowatts or less, $1,000 + $7/kilowatt for systems above 50 kilowatts, and $2,500 + $5/kilowatt for systems above 250 kilowatts. The Guidebook notes that some local governments have yet to comply with these permit fee laws, so doing so in conjunction with the adoption of an AB 2188 ordinance is recommended as needed. C. Review, Approval/Denial of the Application. While AB 2188 s new requirements (e.g., mandatory ordinance, provision of online permit application forms and acceptance of online fee payments, electronic signatures, etc.) are certainly part of the new process, several significant requirements applicable to this stage existed prior to AB 2188 s amendments to the Solar Rights Act. Accordingly, the following comprehensive list contains all of the amended Solar Rights Act s requirements associated with the review and approval or denial of an application for a small residential rooftop solar energy system to provide complete guidance. As amended by AB 2188, the Act now requires or permits all of the following: Approval of all necessary permits or authorization for small solar systems must be made by a non-discretionary administrative review process consistent with both Government Code Section (b) and the adopted ordinance upon confirmation that an application is complete and meets the requirements of the checklist (see Gov t Code (g)(1)); 46

13 Review of the application shall be limited to the building official s review of whether the application meets local, state, and federal health and safety requirements (see Gov t Code (f)(1)); Issuance of a written correction notice detailing all deficiencies in the application and any additional information required to be eligible for the expedited permit issuance must be provided if an application is deemed incomplete (see Gov t Code (g)(1)); Permits building officials to require an applicant to apply for a use permit only if the official finds, based on substantial evidence, that the solar energy system could have specific, adverse impact upon the public health and safety (see Gov t Code (b)); If a building official does require a use permit, the official may only deny an application for the use permit if the official makes written findings based upon substantive evidence in the record that the proposed installation would have a specific, adverse impact upon public health or safety and there is no feasible method to satisfactorily mitigate or avoid, the adverse impact. Such findings shall include the basis for the rejection of the potential feasible alternative for preventing the adverse impact (see Gov t Code (c)); An appeal of a building official s denial of a use permit to the Planning Commission must be allowed (see Gov t Code (d)); Any condition imposed on a permit must only be designed to mitigate the specific, adverse impact upon health and safety that prompted the requirement for a use permit, at the lowest possible cost (see Gov t Code (e)); That the phrase a feasible method to satisfactorily mitigate or avoid the specific, adverse impact is defined to include, but is not limited to, any cost-effective method, condition, or mitigation imposed by the local jurisdiction on another similarly situated application in a prior successful application for a permit (see Gov t Code (j)(1)); and That no local jurisdiction shall condition approval of an application on the approval of an association (such as an HOA), as defined in Section 4080 of the Civil Code (see Gov t Code (i)). In addition, the Guidebook recommends that local jurisdictions facilitate over-thecounter or same day plan review and permit issuance, or automatic approval through online software, and that the application review and permit approval or denial process be completed in between one and three days where such over-the-counter approval is not authorized or feasible. The model ordinance provided in Exhibit C incorporates all of these requirements and recommendations. 47

14 D. Solar System Inspection. As noted in the Guidebook, after an expedited application is granted, a permit issued and a solar energy system installed on a small residential rooftop, the local jurisdiction must inspect the solar energy system before final approval can be granted. AB 2188 also significantly amended the Solar Rights Act with respect to the final inspection phase, by requiring/permitting the following: That only one inspection shall be required, that the inspection must be performed in a timely manner and may include a consolidated inspection (see Gov t Code (h)); and A subsequent inspection is allowed if a solar energy system fails inspection, and any such subsequent inspection need not conform to the requirements made applicable to the first inspection (see Gov t Code (h)). Notably, where an MOU or other agreement with a local fire department (that is separate from the permitting agency) is not reached, a separate fire safety inspection may be performed by that local fire department. However, the Guidebook recommends that a single, final inspection be coordinated among the controlling building department and local fire authority (or at least conducted at the same time), and as noted above, provides a template MOU in Toolkit Document #6 to facilitate an agreement for such coordination. Additionally, the Guidebook recommends that local jurisdictions: use and provide permit applicants with a concise inspection checklist so homeowners and their contractors will have a clear understanding of the final inspection process and criteria; permit the submittal of inspection requests online or electronically; and conduct the final inspection within one to two business days after receipt of an inspection request and provide the permitee by phone or with an inspection time window of no more than two hours. Again, the model ordinance provided in Exhibit C incorporates all of these requirements and recommendations, and the Guidebook provides a model inspection checklist in Toolkit Document #7. IV. CONCLUSION. As demonstrated above, AB 2188 s amendments to the Solar Rights Act require local jurisdictions to comply with numerous significant mandates very quickly. Thankfully, OPR has made that task much simpler through the guidance and plug-and-play forms and documents offered in the Guidebook. 48

15 EXHIBIT A (CA Civil Code 714, as amended by AB 2188, showing all of AB 2188 s additions or changes in underlined text, and deletions by strikeout.) 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 of the Government Code. (2) A Solar energy systems used for heating water shall be certified by the Solar Rating Certification Corporation (SRCC) or other nationally recognized certification agencies. SRCC is a nonprofit third party supported by the United States Department of Energy. The Certification shall be for the entire solar energy system in single family residences and solar collectors used for heating water in commercial or swimming pool applications shall be certified by an accredited listing agency as defined in the Plumbing and installation Mechanical Codes. (3) A solar energy system for producing electricity shall also meet all applicable safety and performance standards established by the California 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 49

16 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 (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 45 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. 50

17 EXHIBIT B (CA Gov t Code , as amended by AB 2188, showing all of AB 2188 s additions or changes in underlined text, and deletions by strikeout.) (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 good faith belief 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. 51

18 (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) A Solar energy systems for heating water in single family residences and solar collectors used for heating water in commercial or swimming pool applications shall be certified by the Solar Rating Certification Corporation (SRCC) or other nationally recognized certification agency. SRCC is a nonprofit third party supported by the Unites States Department of Energy. The certification shall be for the entire solar energy system an accredited listing agency as defined in the California Plumbing and installation Mechanical Codes. (3) A solar energy system for producing electricity shall meet all applicable safety and performance standards established by the California 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) (1) On or before September 30, 2015, every city, county, or city and 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, 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 satisfies the information requirements in the checklist, as determined by the city, county, and city and county, shall be deemed 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, and consistent with the ordinance, 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. (2) The checklist and required permitting documentation shall be published on a publically accessible Internet Web site, if the city, county, or city and county has an Internet Web site, and the city, county, or city and county shall allow for electronic 52

19 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 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 and adopted by the Governor s Office of Planning and Research. A city, county, or city and county may adopt an ordinance that modifies the checklists and standards found in the guidebook due to unique climactic, geological, seismological, or topographical conditions. If a city, county, or city and 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, the city, county, or city and county shall state, in the ordinance required under this subdivision, the reasons for its inability to accept electronic signatures and acceptance of an electronic signature shall not be required. (h) For a small residential rooftop solar energy system eligible for expedited review, only one inspection shall be required, which shall be done in a timely manner and may include a consolidated inspection, except that a separate fire safety inspection may be performed in a city, county, or city and county that does not have an agreement with a local fire authority to conduct a fire safety inspection on behalf of the fire authority. If a small residential rooftop solar energy system fails inspection, a subsequent inspection is authorized, however the subsequent inspection need not conform to the requirements of this subdivision. (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) Electronic submittal means the utilization of one or more of the following: (A) . (B) The Internet. 53

20 (C) Facsimile. (3) Small residential rooftop 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 as defined by the authority having jurisdiction. (4) Solar energy system has the same meaning set forth in paragraphs (1) and (2) of subdivision (a) of Section of the Civil Code. (5) A 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. 54

21 Exhibit C (Model AB 2188 Ordinance) AN ORDINANCE [AMENDING or ADDING] ORDINANCE NO. TO THE [CITY OR MUNICPAL] CODE TO PROVIDE AN EXPEDITED, STREAMLINED PERMITTING PROCESS FOR SMALL RESIDENTIAL ROOFTOP SOLAR SYSTEMS WHEREAS, the City Council of [ ] seeks to implement AB 2188 (Chapter 521, Statutes 2014) through the creation of an expedited, streamlined permitting process for small residential rooftop solar energy systems; and WHEREAS, the City Council wishes to advance the use of solar energy by all of its citizens, businesses and industries; and WHEREAS, the City Council seeks to meet the climate action goals set by the [City or County] and the State; and WHEREAS, solar energy creates local jobs and economic opportunity; and WHEREAS, the City Council recognizes that rooftop solar energy provides reliable energy and pricing for its residents and businesses; and WHEREAS, it is in the interest of the health, welfare and safety of the people of the City of [ ] to provide an expedited permitting process to assure the effective deployment of solar technology. NOW, THEREFORE, 1. DEFINITIONS THE PEOPLE OF THE OF DO ORDAIN AS FOLLOWS a. A Solar Energy System means either of the following: i. Any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating, space cooling, electric generation, or water heating. 55

22 ii. Any structural design feature of a building, whose primary purpose is to provide for the collection, storage, and distribution of solar energy for electricity generation, space heating or cooling, or for water heating. b. A small residential rooftop solar energy system means all of the following: i. A solar energy system that is no larger than 10 kilowatts alternating current nameplate rating or 30 kilowatts thermal. ii. iii. A solar energy system that conforms to all applicable state fire, structural, electrical, and other building codes as adopted or amended by the City and all state and City health and safety standards. A solar energy system that is installed on a single or duplex family dwelling. iv. A solar panel or module array that does not exceed the maximum legal building height as defined by the City [indicate where building height limits are generally contained]. c. Electronic submittal means the utilization of one or more of the following: i. ; ii. The Internet; iii. Facsimile. d. An association means a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development. e. A common interest development means any of the following: i. A community apartment project. ii. A condominium project. iii. A planned development. iv. A stock cooperative. f. 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. g. 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. h. Restrictions that do not significantly increase the cost of the system or decrease its efficiency or specified performance means: 56

23 i. For Water Heater Systems or Solar Swimming Pool Heating Systems: 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. ii. For Photovoltaic Systems: 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. PURPOSE The purpose of the Ordinance is to adopt an expedited, streamlined solar permitting process that complies with the Solar Rights Act and AB 2188 (Chapter 521, Statutes 2014) to achieve timely and cost-effective installations of small residential rooftop solar energy systems. The Ordinance encourages the use of solar systems by removing unreasonable barriers, minimizing costs to property owners and the [City, County, or City and County], and expanding the ability of property owners to install solar energy systems. The Ordinance allows the City to achieve these goals while protecting the public health and safety. 3. APPLICABILITY a. This Ordinance applies to the permitting of all small residential rooftop solar energy systems in the [City, County, or City and County]. b. Small residential rooftop solar energy systems legally established or permitted prior to the effective date of this Ordinance are not subject to the requirements of this Ordinance unless physical modifications or alterations are undertaken that materially change the size, type, or components of a small rooftop energy system in such a way as to require new permitting. Routine operation and maintenance or like-kind replacements shall not require a permit. 4. SOLAR ENERGY SYSTEM REQUIREMENTS a. All solar energy systems shall meet applicable health and safety standards and requirements imposed by the state and the [City, County, or City and County], local fire department or district [and utility director, if applicable]. b. Solar energy systems for heating water in single-family residences and for heating water in commercial or swimming pool applications shall be certified by an accredited listing agency as defined by the California Plumbing and Mechanical Code. 57

24 c. Solar energy systems for producing electricity shall meet all applicable safety and performance standards established by the California 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. 5. DUTIES OF [BUILDING DEPARTMENT] AND [BUILDING] OFFICIAL a. All documents required for the submission of an expedited solar energy system application shall be made available on the publicly accessible City Website. b. Electronic submittal of the required permit application and documents by [ , the Internet, or facsimile] shall be made available to all small residential rooftop solar energy system permit applicants. c. An applicant s electronic signature shall be accepted on all forms, applications, and other documents in lieu of a wet signature. [Note: If a city, county, or city and county is unable to authorize the acceptance of electronic signatures in lieu of wet signatures, it must specify the reasons for its inability to do so in the ordinance in order to omit this provision]. d. The City s [Building Department] shall adopt a standard plan and checklist of all requirements with which small residential rooftop solar energy systems shall comply to be eligible for expedited review. e. The small residential rooftop solar system permit process, standard plan(s), and checklist(s) shall substantially conform to recommendations for expedited permitting, including the checklist and standard plans contained in the most current version of the California Solar Permitting Guidebook adopted by the Governor s Office of Planning and Research. f. All fees prescribed for the permitting of small residential rooftop solar energy system must comply with Government Code Section , Government Code Section 66015, Government Code Section 66016, and State Health and Safety Code Section