Frequently Asked Questions for AB 2188

Disclaimer: The materials included in this section are intended for informational purposes only and not for providing legal advice for any particular case or matter. Use of or reliance on this material does not create an attorney-client relationship between the Energy Policy Initiatives Center and the reader. Individuals or entities should consult their own counsel before taking any action on any particular case or matter.

  1. What types of systems does AB 2188 apply to?
  2. What does AB 2188 require?
  3. What does “substantially conform” mean?
  4. How much flexibility did the legislature intend?
  5. When does the streamlined permit process need to be implemented?
  6. What types of modifications are allowed to the checklist and standards in the California Solar Permitting Guidebook?
  7. Does the statute shift liability to the contractor or the jurisdiction?
  8. What fees can a jurisdiction charge?
  9. How does the Solar Rights Act interact with structures that are designated historic or have landmark preservation designation?

 

  1. What types of systems does AB 2188 apply to?

    AB 2188 applies to small residential rooftop solar energy systems that meet all of the following requirements.
    • No larger than 10 kilowatts alternating current nameplate rating or 30 kilowatts thermal
    • Conforms to all applicable state fire, structural, electrical and other building codes as adopted or amended by the city, county, city and county and Civil Code Section 714(c)(3)
    • Installed on a single-family or duplex dwelling
    • Does not exceed the maximum legal building height as defined by the authority having jurisdiction.
       
  2. What does AB 2188 require?

    In addition to existing Solar Rights Act requirements, AB 2188 mandates the following for local jurisdictions.
    • 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 65850.5(a) on or before September 30, 2015
    • Substantially conform its expedited, streamlined permitting process to the 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
    • Adopt a checklist of all requirements that an applicant must comply with for a system to be eligible and considered complete for expedited review
    • Approve all necessary permits or authorization for small solar systems by an administrative review process consistent with both Government Code Section 65850.5(b) and the adopted ordinance where the jurisdiction confirms that an application is complete and meets the requirements of the checklist
    • Cannot require any solar energy system applicant to obtain approval from an association (such as an HOA) as a condition to approving a permit application
    • Publish the checklist and other required permitting documents on a publicly accessible Internet website, if one is available
    • Allow electronic submittal, as defined by Government Code Section 65850.5(j)(2), of a permit application and associated documentation
    • Authorize electronic signature on all forms, applications and other documentation in lieu of a wet signature (If a jurisdiction cannot authorize an electronic signature, the reason for the inability to accept electronic signatures must be included in the ordinance.)
    • Perform only one inspection in a timely manner that may include a consolidated inspection (combining building and fire inspections)
    • Authorize a subsequent inspection if a system fails inspection
       
  3. What does “substantially conform” mean?

    Government Code Section 65850.5(g)(2) requires that each jurisdiction “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…” when developing its ordinance. AB 2188 did not define “substantially conform.” However, the plain language and statutory intent provide guidance that jurisdictions should implement an expedited permitting process that closely follows or adopts the recommendation and documents found in the Guidebook.

    Building officials, the governor’s office and the solar industry developed the California Solar Permitting Guidebook to provide a clear and comprehensive way to implement a streamlined permitting process. The Guidebook should be utilized as a resource to ease the burden of complying with the law.
     
  4. How much flexibility did the legislature intend?

    The legislature passed AB 2188 with the intent to provide some flexibility to local jurisdictions in adopting an expedited permitting process subject to the statutory intent of the Solar Rights Act to implement consistent statewide standards. This is seen in the substantial conformance language related to adopting the recommendations in the California Solar Permitting Guidebook. It also is seen in the multiple ways to meet the electronic submittal requirement and the flexibility of whether to accept electronic signatures. The law still mandates a nondiscretionary administrative review as well as the requirement that any condition imposed on an applicant be designed to mitigate the specific, adverse impact upon the public health and safety at the lowest cost possible.
     
  5. When does the streamlined permit process need to be implemented?

    AB 2188 mandates that jurisdictions adopt an ordinance implementing a streamlined small residential rooftop solar permitting by September 30, 2015. The law does not provide a phased or scheduled implementation timeframe. As such, the language assumes that the permitting process will be implemented with the passage of the ordinance by the prescribed deadline.
     
  6. What types of modifications are allowed to the checklist and standards in the California Solar Permitting Guidebook?

    AB 2188 accounts for the diversity of the California landscape. Government Code Section 65850.5(g)(2) allows a jurisdiction to adopt an ordinance that modifies the checklists and standards found in the California Solar Permitting Guidebook due to unique climatic, geological, seismological or topographical conditions. These modifications are still subject to the Section 65850.5 (e) requirement that 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. Mitigation includes, but is not limited to, any cost-effective method, condition or mitigation imposed by a jurisdiction on another similarly situated application in a prior successful application for a permit and require that each jurisdiction make its best efforts to ensure that the selected method, condition or mitigation meets the reasonable restriction language of Civil Code Section 714 (d)(1) (A)-(B).

    Examples of applicable modifications include conditions for protection from salt water in coastal areas, wind exposure, snow load and grades greater than 5 percent. Conditions or modifications that are not directly tied to mitigating specific, adverse impacts on public health and safety or a unique climatic, geological, seismological or topographical violate the Solar Rights Act.
     
  7. Does the statute shift liability to the contractor or the jurisdiction?

    No. The Solar Right Act does not shift liability to a jurisdiction or applicant. All existing rules, regulations and duties remain the same pursuant to state law and local requirements.
     
  8. What fees can a jurisdiction charge?

    Current state law requires that fees charged by a local enforcing agency for permit processing and inspection cannot exceed the reasonable cost of providing the service for which the fee is charged. In other words, fee revenue must only be used to defray the cost of permit processing and enforcement and cannot be used for general revenue purposes. These requirements are contained in Government Code Section 65850.55, Government Code Section 66016 and State Health and Safety Code Section 17951.

    Government Code Section 66015 further sets specific limits on the amount local enforcing agencies can charge for solar PV permit fees. Fees in excess of these limits must be explicitly justified and are prohibited unless the municipality determines that it has already adopted a streamlined permit approval process. Whether other fees are allowed is a statutory compliance issue best resolved by a jurisdiction’s legal counsel.
     
  9. How does the Solar Rights Act interact with structures that are designated historic or have landmark preservation designation?

    The Solar Rights Act mandates a nondiscretionary permit review process. Additionally, the State Historical Building Code (Health and Safety Code Sections 18950-18961) grants authority to jurisdictions to designate buildings as qualified historical buildings or structures under the code. This creates an additional discretionary review process for all repairs, alterations and additions necessary for the preservation, restoration, rehabilitation, moving or continued used of qualified historical buildings or structures. Applications for rooftop solar on qualified historical buildings or structures are subject to this review. All other structures that are not deemed qualified historical buildings or structures by the local jurisdiction are subject to the nondiscretionary permit review under the Solar Rights Act.