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Environmental

Solar energy systems may require preemption law to achieve widespread utilization

 
California, to its credit, recognized a couple of years ago that zoning laws could act as a barrier to the wide utilization of solar energy systems ("SES"). [SES includes a wide variety of energy efficient and alternative generating devices: "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 [and] 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." See Section 801.5 California Civil Code.]
 
As a result, California enacted Section Section 65850.5 of the California Government Code [see http://www.leginfo.ca.gov/pub/03-04/bill/asm/ab_2451-2500/ab_2473_bill_20040925_chaptered.html]. The legislation limits a city's or County's ability to deny a building permit to install a SES unless there is an adverse impact on public health and safety; the city or County is required to make written findings to that effect if it intends to deny the application. Denials can be appealed administratively (and thus through the writ process in Court, if necessary). This standard significantly constrains the ability of a city or County to deny such permits.
 
However, the experience in California shows that, despite the wording of the law, barriers still exist. Although many cities, for example, have embraced the directive of the law, others still deny permits for a variety of reasons (such as height limitation ordinances). If the height issue is unrelated to public health or welfare, then the permitting agency may be on shaky ground in denying an application.
 
If SES is to be widely utilized to decrease GHG emissions, then laws of this type will need to be widely enacted. One omission, though, appears in the California legislation, which is the failure to preempt CC&R's. Many planned unit developments ("PUD's") have even more restrictive limitations than the zoning constraints that were the target of Section 65850.5; given the widespread popularity for decades of PUD's as part of suburban and urban development, the CC&R's that are a part of every such development should also be subject to preemption.