President-Elect Barack H. Obama's Proposed Stimulus Package Could Breathe New Life Into California's Solar Rights Act

22 December 2008 Publication

Legal News Alert: Environmental

Assembly Bill 2473 (AB 2473), which amended California’s Solar Rights Act (Act), was signed into law in 2004 and went into effect January 1, 2005. The legislation contains provisions that pertain to local land use permitting of solar energy systems that could result in expedited entitlements for the construction and operation of solar projects throughout California. While the provisions of this legislation have been cited for purposes of obtaining permits for accessory solar panels, thus far, these provisions have not been used to avoid the often time-consuming local land use permitting processes for solar field projects. With President-elect Obama’s proposed stimulus package, which could include billions of dollars toward renewable energy projects, the Act may now play an important role in implementing renewable energy projects funded under the proposed stimulus package.

Solar Rights Act Overview
The Act 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.” Review of solar energy system applications by local building officials is limited to “whether it meets all health and safety requirements of local, state, and federal law.” The requirements of local law are 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.” A local government may only require that an applicant apply for a use permit if a city or county building official has a “good faith belief that the solar energy system could have a specific, adverse impact upon the public health or safety.” Even then, the local government “may not deny [such] 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.”

Under the Act, a solar energy system must meet “applicable health and safety standards and requirements imposed by state and local permitting authorities.” A solar energy system for producing electricity must “meet all applicable safety and performance standards established by the National 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.

In passing AB 2473, the California Legislature declared that the “[i]mplementation 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." In passing the bill, the Legislature intended that “local governments comply not only with the language of th[e] [A]ct, 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.”

What Is a “Solar Energy System”?
A solar energy system is defined as “[a]ny solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for electricity generation … ." Under this broad definition, many solar projects may be able to qualify as solar energy systems and could therefore benefit from the Act’s provisions.

Implications for Future Solar Projects in California
As summarized, the Act declares that effective installation of solar energy systems is not a municipal affair and requires cities and counties to approve applications to install such systems through the issuance of “building permits or similar nondiscretionary permits.” Thus, local governments could potentially be prohibited from requiring a use permit for proposed solar projects unless a city or county building official has a “good faith belief” that the project could have a specific adverse impact upon the public health or safety. Instead, the review of a solar project application would be limited to whether it meets all health and safety requirements of local, state, and federal law. Even if such a determination of a potential adverse impact upon public health and safety were made, the application for the then-required use permit could not be denied unless the city adopted written findings based on substantial evidence that the proposed project would result in specific adverse impacts to public health and safety, and that no satisfactory or feasible means existed to mitigate or avoid such impacts.

The provisions of the Act may be extremely important and useful in expediting renewable solar energy projects to take advantage of federal funding that may be available under President-elect Obama’s proposed stimulus package.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information to our clients and colleagues.

If you have any questions about this alert or would like to discuss these topics further, please contact your Foley attorney or the following individuals:

S. Wayne Rosenbaum
San Diego, California

Elizabeth A. Cason
San Diego, California

Heidi K. Vonblum
San Diego, California

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