Archive for the ‘solar energy’ Category

EPA Revises “Comfort Letters” to Facilitate Renewable Energy Development on Contaminated Sites

Saturday, December 8th, 2012

EPA has revised its three model letters that may be used by regional offices when drafting site-specific comfort/status letters for lessees involved in renewable energy projects on contaminated property. The letters are intended to provide lessees who are contemplating leasing property for a proposed renewable energy development  and request a comfort/status letter from the EPA. The letters describe the information EPA currently has about the property and applicable Agency policies to help the lessee make informed decisions as they move forward with renewable energy development on the property.

The three letters for renewable energy development and their links are:

No Prior Federal Interest Comfort/Status Letter -This letter indicates that the property does not appear on any federal databases and EPA does not currently plan on taking federal response or enforcement action under CERCLA or RCRA at the Property

No Current Federal Interest Comfort/Status Letter– This letter describes information about the site that may appear on EPA databases. It will also describe the status of actions that may have been taken such as investigation or remediation, if EPA determines that no further action is required, if the site or portions of the site have been deleted from the NPL and also any reasonable steps that might have to be followed to satisfy the continuing obligations of the BFPP liability protection as well as review the applicability of revised guidance on applicability of the BFPP protections to tenants.

State-lead Interest Comfort/Status Letter -This letter generally indicates that the site might normally be subject to CERCLA or RCRA authority but that EPA is not involved in the day-to-day management of the site because the state has assumed responsibility for work at the site, the site is not being listed under the EPA deferral policy since it is being addressed under a state response program or pursuant to the state RCRA program. The letter encourages the recipient to contact the state for more information.

 

 

California Court Upholds Solar Energy Restrictions of Homeowners Association

Monday, January 2nd, 2012

The Covenants, Conditions and Restrictions (CC&R) in the master declaration for the Tesoro del Valle homeowners association (Tesoro) recorded in 2003 provided that homeowners must obtain approval from the Architectural Control Committee (ACC) before making any improvements. Tesoro later approved Design Guidelines that included architectural standards for solar energy systems.

In 2005, defendant purchase their home. Two years later, they submitted a proposal for a solar energy system. Their contractor was told by the property manager that the application would not likely be approved because it contemplated installation outside the perimeter wall of the home. The property manager also indicated that the application lacked a number of details required by the Design Guidelines. While the application was pending, defendants signed an agreement with their contractor to install 36 solar panels on their roof and 22 panels on the slope area outside the perimeter but did not amend their application.

The ACC denied the application within the mandated 45-day review period but did not receive the rejection until after the review period expired. Defendant informed Tesoro that the notice was untimely and that they intended to proceed with construction in January 2008. Despite receiving a letter from Tesoro’s attorney, defendants commenced construction, including removing landscaping and pouring concrete foundations for pylons. After further discussions, defendant agreed to temporary halt construction and submit an amended application. However, the ACC rejected the application and ordered the defendants to restore the slope outside its perimeter wall. Tesoro subsequently a filed a lawsuit, seeking declaratory and injunctive relief.

The defendants argued the CCRs violated section 714 of the California Civil Code prohibiting homeowners associations from imposing CCR that effectively prohibit installation of solar energy systems. The trial court noted that this section did not apply to provisions that impose “reasonable” restrictions on solar systems. Reasonable restrictions, in turn, were defined as restrictions that do not “significantly” increase the cost of the system or significantly decrease its efficiency or performance. The statute defined “significantly” as an amount exceeding 20% of the cost or efficiency.

Following a 10-day trial, a jury found Tesoro’s CCRs imposed reasonable restrictions and the appeals court affirmed. The appeals court said that recorded use restrictions are accorded a presumption of validity unless they are arbitrarily enforced or impose a burden on the use of the affected land that far outweighs any benefit. The court noted that the testimony showed the guidelines did not prohibit all solar units and that Design Guidelines specficially mirrored section 714. Moreover, the court found that there was testimony that an alternative design involving of installing additional panels above the home would have yielded the same performance efficiency and while it would have a 14% reduction in output, the alternative design was less costly than the proposed system on the slope. As a result, the court ruled there was substantial evidence to support the jury’s conclusion that the CCRs imposed reasonable restrictions. The court also held that  that consideration of aesthetic impacts were reasonable and met the requirements of section 714.  Tesoro Del Valle Master Homeowners Association v Martin Griffin, 2011 Cal. App. LEXIS 1368 (Ct. App-2d App Dist. 10/3/11).