SOLAR ENERGY SYSTEMS
The Solar Rights Act of 1978 prohibits local governments from imposing ordinances
that restrict or prevent the use of solar energy systems other than for
the preservation or protection of public health or safety. Ordinances which
impose reasonable restrictions on solar energy systems are allowed. Reasonable
restrictions are those which do not significantly increase cost or decrease
efficiency, or which allow for an alternative system of comparable cost
and efficiency. (Government Code Section 65850.5) Similar provisions make
void and unenforceable any deed restriction or covenant which restricts
or prohibits the use of solar energy systems, with certain exceptions. (Civil
Code Section 714) However, reasonable aesthetic guidelines imposed by a
homeowners association are valid. (Palos Verdes Homes Association v. Rodman
(1986) 182 Cal.App.3d 324) The act also defines a "solar easement"
and provides that such easement "runs with the land." (Civil Code
Sections 801 & 801.5; Longtin, p. 320)
Solar Access
No local ordinance enacted pursuant to this chapter shall have the effect
of prohibiting or of unreasonably restricting the use of solar energy systems,
other than for the preservation of the public health and safety. The provisions
of this section shall apply to charter cities.
This section shall not apply to ordinances which impose reasonable restrictions
on solar energy systems. However, it is the policy of the state to promote
and encourage the use of solar energy systems and to remove obstacles thereto.
Accordingly, reasonable restrictions on a solar energy system are those
restrictions which do not significantly increase the cost of the system
or significantly decrease its efficiency, or which allow for an alternative
system of comparable cost and efficiency.
As used in this section, "solar energy system" shall be defined
as set forth in Section 801.5 of the Civil Code.
HEALTH & SAFETY CODE SECTION 17959.1
(a) It is the intent of the Legislature to encourage the use of passive
solar energy design. The Legislature recognizes that building code regulations
with regard to natural light and ventilation standards have to be modified
to permit existing buildings to be retrofitted with passive solar energy.
(b) Nothwithstanding Section 17922, any city or county may be ordinance
or regulation permit windows required for light and ventilation of habitable
rooms in dwellings to open into areas provided with natural light and ventilation
which are designed and built to act as passive solar energy collectors.
(c) This section shall become inoperative on the date that the building
code regulations, as modified to conform to subdivisions (a) and (b) and
published in Title 24 (commencing with Section 18901) of the California
Administrative Code, become effective, and as of the following January 1
this section is repealed, unless a later enacted statute which becomes effective
on or before that date, deletes or extends the dates on which it becomes
inoperative and is repealed.
HEALTH & SAFETY CODE SECTION 17959.3
After January 1, 1979, no person owning, or in control of a property shall
allow a tree or shrub to be placed, or, if placed, to grow on such property,
subsequent to the installation of a solar collector on the property of another
so as to cast a shadow greater than 10 percent of the collector absorption
area upon that solar collector surface on the property of another at any
one time between the hours of 10 a.m. and 2 p.m., local standard time; provide,
that this section shall not apply to specific trees and shrubs which at
the time of installation of a solar collector or during the remainder of
that annual solar cycle cast a shadow upon that solar collector. For the
purposes of this chapter, the location of a solar collector is required
to comply with the local building and setback regulation, and to be set
back not less than five feet from the property line, and no less than 10
feet above the ground. A collector may be less than 10 feet in height, only
if in addition to the five feet setback, the collector is set back three
times the amount lowered.
PUBLIC RESOURCES CODE SECTION 25982
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SOLID WASTE
Rubbish Dumps -- State Forester's Permit to Operate
(a) "Permit" means a special permit to maintain, use or operate
a rubbish dump which is issued by the State Forester pursuant to this chapter.
(b) "Rubbish dump" means any accumulation for the purpose of disposal
of any rubbish, rags, paper, boxes, crates, excelsior, petroleum products
or the residue thereof, fallen timber, slash, limb wood, branches, brush,
grass, leaves, litter, or other combustible or flammable materials. It does
not include slash from timber operations or the temporary piling of flammable
materials which have accumulated from clearing while the construction or
operation is in progress in conjunction with public works, utility, or other
industrial projects where such accumulation is located wholly within the
exterior limits of such projects.
PUBLIC RESOURCES CODE SECTION 4371
A person shall not maintain, use, or operate any rubbish dump outside of
the exterior boundaries of any city unless he has a permit to do so issued
by the State Forester and the rubbish dump is maintained, used, or operated
in strict accordance with the terms and conditions prescribed in the permit.
PUBLIC RESOURCES CODE SECTION 4372
Recycling Units -- Reverse Vending Machines
It is the intent of the Legislature to make redemption and recycling convenient
to consumers, and the Legislature hereby urges cities and counties, when
exercising their zoning authority, to act favorably on the siting of multimaterial
recycling centers, reverse vending machines, mobile recycling units, or
other types of recycling opportunities, as necessary for consumer convenience,
and the overall success of litter abatement and beverage container recycling
in the state.
PUBLIC RESOURCES CODE SECTION 14501(E)
(a) A local agency shall not deny a permit for the operation of a mobile
recycling unit or reverse vending machine, which is certified, or has applied
to be certified, as a recycling location pursuant to Division 12.1 (commencing
with Section 14500) of the Public Resources Code, on private property located
in an area that is zoned for commercial or industrial uses, and is located
within, or to be located within, a convenience zone, if the operator of
the mobile recycling unit or reverse vending machine submits written certification
from the property owner, granting permission to operate on that property
from the property owner, unless the local agency specifically finds, and
states its reasons for finding, that this operation will have a detrimental
effect on public health, safety, or general welfare. If the certification
is revoked pursuant to Section 14541 of the Public Resources Code, the local
agency permit shall automatically expire.
(b) Consistent with subdivision (a), a local agency may adopt reasonable
rules and regulations, which are not inconsistent with Section 14570 and
14561 of the Public Resources Code, concerning the operation of mobile recycling
units and reverse vending machines, including, but not limited to, specifying
the items and frequencies of operations and the posting of appropriate signs.
(c) For purposes of this section, "mobile recycling unit" means
a properly licensed automobile, truck, trailer, or van which is used for
the collection of recyclable material such as aluminum, glass, plastic,
and paper.
(d) For purposes of this section, "reverse vending machine" has
the same meaning as in section 14525.5 of the Public Resources Code.
(e) For purposes of this section, "convenience zone" has the same
meaning as in Section 14509.4 of the Public Resources Code.
GOVERNMENT CODE SECTION 66786.6
Solid Waste Conversion to Energy Facilities
Notwithstanding any other provision of law, a solid waste facility for the
conversion of solid waste into energy shall be deemed to have been granted
a permit for the purposes of this chapter and shall be deemed to be in conformance
with the county solid waste management plan for the county in which the
solid waste facility will be located, if all of the following conditions
are met:
(a) The solid waste facility is located in a county containing a population
of more than five million persons and is undertaken by an agency or entity
created by a joint powers agreement between a city containing a population
of between 300,000 and 500,000 persons and a county sanitation district.
(b) The requirements of subdivision (b) of Section 66796.32 have been met,
and the enforcement agency has certified the permit pursuant to subdivision
(c) of Section 66796.32.
GOVERNMENT CODE SECTION 66796.44
However, the California Court of Appeal in 1985 invalidated an initiative
requiring the electorate's approval for the construction of a waste-to-energy
plant. Among the terms of the initiative were requirements that the landfill
be dedicated for park or open space after termination of solid waste operations,
and that voters approve by a two-thirds majority conditional use permits
for solid waste facilities. Because conditional use permits are adjudicative
acts, and because adjudicative functions cannot be the subject of an initiative,
the court found that the initiative impermissibly takes adjudicative powers
from the city council. As such, it is preempted by state law on two grounds:
(1) The initiative was beyond the power jof the voters to adopt, and (2)
parks and open space are not reasonably related to landfill operations and
thereby preempted by Government Code Section 65909's requirement that all
dedications be reasonably related to the use of the property for which the
permit is requested. (Wiltshire v. Superior Court (1985) 172 Cal.App.3d
296; Land Use Law, Dec. 1986, p. 22., art. 110)
Solid Waste Landfill Initiatives
Although solid waste landfill initiatives per se are not expressly preempted
from local regulation, one particular initiative was struck down by a court
of appeal for other reasons. A proposed municipal initiative prohibiting
the siting, construction, expansion, or other establishment of solid waste
landfill operations except on agreement of the owner to dedicate the landfill
property as a public park or open space when the operation ceased was preempted
by state law and was thus unenforceable and void. (Wiltshire v. Superior
Court of San Diego County (1985) 172 Cal.App.3d 296)
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TIMBER HARVESTING
The Z'Berg-Nejedly Forest Practice Act of 1973 (Public Resources Code Sections
4511-4684.5) prohibits counties from regulating local forestry practices
and timber harvesting operations which may be stricter than those that the
State Board of Forestry applies. (Public Resources Code Section 4516.5(d))
Before it was amended in 1982, the act empowered counties to adopt and enforce
timber harvesting rules.
However, the California Tahoe Regional Planning Agency still maintains the
right, "within the reasonable exercise of its powers," to adopt
forestry and timber harvesting ordinances that are stricter than the state's.
PUBLIC RESOURCES CODE SECTION 4516
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WATER AND WASTEWATER FACILITIES
Water Transmission and Storage Facilities
". . . Zoning ordinances of a county or city shall not apply to the
location or construction of facilities for the production, generation, storage,
or transmission of water. . ."
GOVERNMENT CODE SECTION 53091, IN PART
Wastewater Facilities
"...Building ordinances of a county or city shall not apply to the
location or construction of facilities for the production, generation, storage,
or transmission of water, waste water,..."
GOVERNMENT CODE 53091, IN PART
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WATER RESOURCES
The department may make rules and regulations for the uniform navigational
marking of the waters of this state. Such rules and regulations shall not
be in conflict with markings prescribed by the United States Coast Guard.
No city, county, or person shall mark the waters of this state in any manner
in conflict with the markings prescribed by the department.
HARBOR & NAVIGATION CODE SECTION 659.
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WILDLIFE AND VEGETATION -- ENDANGERED SPECIES
Habitat Conservation Plans -- Habitat Conservation Plan Agreements Prepared
and Executed under the Federal Endangered Species Act
Under the federal Endangered Species Act (16 U.S.C. Section 1531 et seq.),
the Secretary of the Interior has an affirmative duty to bring endangered
species to the point where they may be removed from protected status. The
Act provides for habitat conservation plans executed between developers
and federal, state, or local agencies for long-term commitments regarding
wildlife and vegetation conservation and long-term development commitments.
When the Act governs land use, existing local land use regulations which
would otherwise govern are nullified to the extent they conflict with the
Act. However, because such plans and agreements are legislative in nature,
they are subject to the referendum process, as any legislative act is. Nevertheless,
amendments to habitat conservation plans are adjudicative in nature, and
thereby preempt from referendum. (W.W. Dean & Associates v. City
of South San Francisco (1987) 188 Cal.App.3d 1330, 1338)
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ZONING ORDINANCES AND REGULATIONS IN GENERAL
In declaring a general state preemption, the California Supreme Court ruled
that the state is exempt from a city's zoning regulations. (Hall v. City
of Taft (1952) 47 Cal.2d 177) In response to the Hall decision, the
State Legislature enacted Government Code Section 53091, displayed in this
index under EDUCATION FACILITIES.
Further, cities are exempt from counties' zoning ordinances, and vice-versa,
where property owned within the other's territorial limits is concerned.
(40 Ops.Cal.Atty.Gen. 243 (1962))
Carried one step further, a private developer who leases county property
is exempt from a city's building and zoning ordinances if the property is
used for the public purposes for which it was granted to the county. (57
Ops.Cal.Atty.Gen. 124 (1974)) However, this trend has not been carried a
step further if a private developer proposes to build an office, automotive
shop, and radio shop on privately owned property to be leased to a federal
agency for official use. In a 1988 case, the California Court of Appeal
held that the federal preemption doctrine does not preempt a county's regulation
of a private developer's building construction which is intended for lease
to a federal agency. (Smith v. County of Santa Barbara (1988) 203
Cal.App.3d 1415) The developer had an agreement with the Forest Service
to lease office space to that agency upon completion of the building's construction,
and without federal assistance of any kind. But at the time the county began
enforcing its regulations, the developer had not signed a lease with the
Forest Service. The court rejected the notion that the developer's building
construction constituted a "federal project", noting:
"Since no federal function was being performed during the construction
of the structure to be leased to the Forest Service, the activity was none
other than a private project subject to local regulation." (Smith,
p. 1423).
By its ruling, the court allowed the county to impose its regulations, including
a discretionary review process with environmental impact report, and eventual
site plan review, construction of off-site road improvements, and building
permits. This ruling also makes obsolete a 1945 California Court of Appeal
case that held that local building and zoning laws are inapplicable when
a private lessor constructs buildings on land leased to and intended for
use by federal government to carry out one of its functions. (City of
San Diego v. Van Winkle (1945) 69 Cal.App.2d 237)
A 1961 Attorney General's Opinion indicated that if a city forms an assessment
district under the Improvement Act of 1911 to finance public improvements,
a part of which will be on city-owned land located outside city limits,
such public improvements are not subject to county building and zoning ordinances.
While assessment districts established under the Improvement Act of 1911
have no separate existence, any improvements financed are those of the city,
and the proceedings under the Improvement Act of 1911 are merely the means
of financing them. (38 Ops.Cal.Atty.Gen. 156 (1961)
This opinion evidently still is valid, despite Government Code Section 53091's
opening sentence: "Each local agency shall comply with all applicable
building ordinances and zoning ordiances of the county or city in which
the territory of the local agency is situated." The key to resolving
this apparent conflict is found in the preceding section-Section 53090(a),
which reads in part: " 'Local agency' does not include the state, a
city, a county, a rapid transit district whose board of directors is appointed
by public bodies or officers or elected from election districts within the
area comprising the district, or a district organized pursuant to Part 3
(commencing with Section 27000) of Division 16 of the Streets and Highways
Code." The last item mentioned in the preceding code section refers
to bridge and highway districts.
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Prepared by:
State of California
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814
916-445-0613