CALIFORNIA SOLAR RIGHTS ACT
AB 2188, RECENT AMENDMENT TO THE SOLAR RIGHTS ACT
In September 2014 the California legislature passed an amendment revising two parts of the California Solar Rights Act. Chapter 521, Statutes of 2014 (Assembly Bill No. 2188, Muratsuchi) amends Section 714 of the Civil Code, and amends Section 65850.5 of the Government Code, relating to solar energy.
Section 714 of the Civil Code is amended to alter the definition of what is a reasonable restriction on a solar energy system as it pertains to restrictions that would significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that would not allow for an alternative system of comparable cost, efficiency, and energy conservation benefits.
Specifically, “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.
Originally the Solar Rights Act specified an amount not to exceed two thousand dollars ($2,000) over the system cost as originally specified and proposed, or a decrease in system efficiency of an amount exceeding 20 percent as originally specified and proposed.
Section 65850.5 of the Government Code is amended to enact the following:
States legislative findings and declarations pertaining to the importance of streamlining the permitting of solar energy systems;
Requires local jurisdictions, in consultation with specified public entities, to adopt an ordinance creating an expedited permit and inspection process for small residential rooftop solar energy systems on or before September 30, 2015.
For more information regarding AB 2188, visit California Legislative Information, Assembly Bill 2188.
Green AND Historic:
Green AND Historic:
Green AND Historic:
THE 1978 CALIFORNIA SOLAR RIGHTS ACT AND HISTORIC RESOURCES
OHP is frequently asked about the impact installation of solar energy equipment may have on historic resources. There is renewed interest in solar energy equipment since the California Public Utilities Commission made $2.2 billion available as installation rebates through the California Solar Initiative (rebates are currently no longer offered). Cities are expecting an increase of permit applications for these installations. Building officials have been promising to expedite the review of these applications as a gesture towards the urgency regarding carbon footprint reduction. Several municipalities have queried online forums asking how other jurisdictions are handling review of solar energy equipment installation in historic resources and districts.
Anecdotal evidence from cities has revealed that, while some historic preservation commissions do not have any input into the review process, several are allowed to at least review the application and a few even make comments that are incorporated as part of the permit application. Most commissions try to engage the owner to mitigate the effects of an installation on prominent façades.
The 1978 California Solar Rights Act does not necessarily bar reasonable restrictions on solar installations. It does establish the legal right to a solar easement, defines which solar energy systems are covered by its provisions, and limits local governments from adopting ordinances that would unreasonably restrict the use of solar energy systems. Now available is the excellent analysis of six key provisions of the California Solar Rights Act performed by the Energy Policy Initiatives Center.
The Solar Rights Act has several relevant components:
California Civil Codes Sections 714 and 714.1: Limits covenants, conditions, and restrictions to restrict solar installations and requires timely review.
California Civil Code Section 801: Establishes the legal right to a solar easement.
California Civil Code Section 801.5: Defines which solar energy systems are covered by its provisions.
California Government Code section 65850.5: Limits local government restrictions on solar installations and discourages local governments from adopting ordinances that would unreasonably restrict the use of solar energy systems. It also requires local governments to use a ministerial or administrative application review instead of a discretionary process.
CA Health and Safety Code 17959.1: Provides for the city or county to administratively issue permit, unless the solar installation would have a specific adverse impact upon public health or safety; establishes the health and safety standards a solar energy system is required to meet.
CA Government Code 66473.1: Subdivision design to provide for future passive or natural heating or cooling opportunities.
CA Government Code 66475.3: Local government may require easements to ensure subdivision parcels receive sunlight.
While it is popularly believed that the Solar Rights Act does not allow local prohibitions on solar cell installation based on "aesthetic considerations" among others, Civil Code Section 714 does allow covenants, conditions and restrictions (CC&Rs) to impose reasonable restrictions on solar energy systems. Reasonable restrictions include those that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance or allow for an alternative system of comparable cost, efficiency and energy conservation benefits. Civil Code Section 714(d)(1)(B) further defines reasonable restrictions as requirements imposed that do not exceed $1000 in cost or decrease performance by more than 10%, in general. For example, a recommendation to reposition a photovoltaic panel on a historic roof would be unreasonable if the performance of that panel dropped to below 90% of the performance achieved in the originally proposed location, or if the cost of installing the panel in the recommended location increased by $1000 or more from the originally proposed location.
Civil Code Section 714(e) provides that "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." Thus, if applications for approval of an architectural modification to historic properties are submitted to a historic preservation commission, approval for a solar system shall also be submitted to a historic preservation commission. The review by a historic preservation commission "shall not be willfully avoided or delayed." The “reasonable” restrictions of Civil Code Section 714 would apply to the historic preservation commission’s review.
Government Code Section 65850.5 (a) states that it is the intent of the Legislature that local ordinances 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. 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. If the building official has a good faith belief that the solar energy system could have a specific, adverse impact upon the public’s health and safety, the applicant may be required to apply for a use permit. Application for a use permit may not be denied unless a written finding is made based upon substantial evidence in the record that that the proposed installation would have a specific, adverse impact upon the public health and safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. These findings shall include the basis for the rejection of potential feasible alternatives of preventing the adverse impact.
Government Code Section 65850.5 (a) also states that "implementing statewide standards to achieve a timely and cost effective installation of solar energy systems is not a municipal affair…but a matter of statewide concern." This language appears to discourage local governments from enacting varying and subjective permitting standards. This language suggests that a statewide consensus on the review of solar energy systems on historic resources would be beneficial.
A SUGGESTED BASIS FOR REVIEW
Although Government Code 65850.5 states that an application for solar energy systems cannot be denied for other than health or safety reasons, the Act in its entirety, taking into consideration the Reasonableness Standard of Civil Code Section 714, does not appear to prohibit review or reasonable restrictions in the interest of historic preservation or preserving the integrity of historic resources during the appropriate permit reviewing process.
Historic preservation commissions should assert their authority to participate in the review of solar energy systems on historic resources. Their review should be timely, even expedited, so as to not delay the permit process. Any recommendations to minimize damage to character-defining features or the integrity of the resource shall comply with the reasonableness limitations imposed by Civil Code Section 714. The review itself should be based on the Secretary of the Interior’s Standards for Rehabilitation or locally adopted standards. The ten Secretary of the Interior's Standards are national in application and provide a uniform basis for review.
Preservationists, building officials, historic preservation commissions and homeowners would do well to focus on the language in Civil Code Section 714 that allows for an alternative system of comparable cost, efficiency and energy conservation benefits. The Sacramento Municipal Utility District is the first in California to offer "SolarShares" on a remote solar farm. Homeowners unable to install solar systems due to shade or a disadvantageous orientation can buy shares in a solar farm operated by SMUD. They receive the same credit for electrical production that would be produced by solar cells on their own roof, with less expense than home installation. This alternative energy source presents an option that leaves the historic resource untouched but still provides the benefits of solar energy production to the customer. Other utilities around California are expected to follow suit shortly.
For further information, comments, or questions please contact Mark Huck at the Office of Historic Preservation, or call (916) 653-9107.
A CASE STUDY
The City of Santa Cruz is allowing solar panels on historic buildings with review by the Commission and attempts to have the panels located out of general public view. The Commission has required black panels and frames and installation of a black metal strip along the rake edge to mask the distance between the panels and the roof. In this case study, the Commission required a skylight to be covered with a "fake solar panel" so the panel array would not have a "missing tooth" look.