Santa Monica Riles Solar Advocates — Leading Green City’s New Ordinance May Violate California’s Solar Rights Act

by Robin Yeager on 07/10/2009

in California Solar Law, Green Building, Renewable Energy

Santa Monica, which currently has only one viable competitor for the title of “California’s Greenest City”, has riled solar advocates with the inclusion of a visibility standard in an ordinance establishing its procedure for approving solar energy systems.

Simplifying the process isn’t the issue. Where panels can be installed on the roofs of commercial and multi-family buildings is the concern. The controversial provision does not apply to single-family homes.

Santa Monica’s Visibility Provision states:

Except on single-family properties, solar collector panels, their necessary support structure, and conduit, shall be installed in the location that is the least visible from abutting streets directly facing the subject property so long as installation in that location does not significantly decrease the energy performance or significantly increase the costs of the solar energy system as compared to a more visible location.

The ordinance defines significantly decrease as decreasing the expected annual energy production by more than 10% and significantly increase as increasing the cost of a photovoltaic system by more than $2000 or the cost of a solar water or swimming pool heating system by more than 20%. Santa Monica Municipal Code Section 9.04.10.02.220 (e), (e)(1) and (e)(2)

According to the city’s Planning Director, its legal staff concluded that the ordinance as proposed, presumably including this provision, does not conflict with state law or city policy. The rationale apparently is: Since the least visible location can be objectively determined, and the measures for determining performance reduction and/or increased cost are objectively defined, the ordinance establishes objective development standards, and thus is permissible.

Yet, California law plainly states that a city’s only grounds for denying a solar permit are public health or safety. Aesthetics cannot be the basis for denying a solar permit.

The Planning Director’s memo states: “Section (e) effectively requires the solar installation professional to consider less visible locations that still meet the primary energy production objectives. … there is no reason that the solar installation professional should not also consider aesthetic aspects when designing a system.” Contrary to the memo, the visibility provision has nothing to do with public health or safety and, as admitted in the memo, everything to do with aesthetics.

California Law states:

… 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. Govt. Code §65850.5(a).

…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. Govt. Code §65850.5(b)

A city or county may not deny an application for a use permit to install a solar energy system unless … the proposed installation would have a specific, adverse impact upon the public health or safety … Health & Safety Code § 17959.1(b)

Any conditions imposed on an application to install a solar energy system must be designed to mitigate the specific, adverse impact upon the public health and safety at the lowest cost possible. Health & Safety Code § 17959.1(c)

What’s Next

Apparently, the City of Santa Monica is willing to take on a court fight to interpret these provisions. The Planning Commission’s memo suggests that the City’s position is that the restrictions that state law permits Homeowner’s Associations to place on proposed solar installations should apply to cities and counties. Never mind that HOAs and municipalities are not the same kinds of entities.

A lawsuit isn’t likely unless and until a permit is denied due to the proposed location of panels on an applicant’s roof, or an applicant disputes the legality of a municipality requiring a solar owner to accept a 10% reduction in energy performance or a $2000 price increase to meet the “less visible” location standard.

Given its admirable and intensive efforts to promote solar energy, it’s surprising that the City Council thought it was worth raising the ire of its constituents when the rationale for the visibility provision is neither public health or safety and can only be interpreted as aesthetic.

7.10.09

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