Drone image by Dean Sullivan
Morro Bay voters spoke loud and clear their feelings on a proposed Battery Energy Storage System Project, even though the applicants have chosen to bypass the City review and seek approval from the State, and the City Council, too, is hoping it can be heard as well.
The City Council voted to have the staff begin work on an ordinance regulating so-called BESS projects within the City Limits as such projects continue to be proposed up and down California.
“Battery energy storage is a rapidly growing technology that presents unique land use planning issues for local jurisdictions,” Community Development Director, Airlin Singewald, said. “The State currently has 10,000 megawatts [MW} of battery storage capacity and a goal of 52,000 MW by 2024 [sic] for grid reliability. As more BESS projects move forward, more jurisdictions are developing local zoning regulations to prohibit or restrict the development of BESS projects.
“Like most jurisdictions, the City of Morro Bay’s zoning code does not contain a land use classification or any specific use standards [e.g., setbacks, etc.] for BESS projects.”
An emergency ordinance wouldn’t necessarily stop any future BESS proposals from being made but could delay them for a couple of years.
“An urgency ordinance would provide a temporary pause on the processing of new BESS projects to give the City time [up to 2 years] to develop a permanent BESS ordinance to protect public health and safety. As such, an urgency ordinance is not a separate work effort, but the predecessor to the development of a permanent ordinance.”
An ordinance can take two basic forms — an outright ban and a conditional permit process. Singewald didn’t recommend the first option.
A permanent prohibition, “is not recommended,” he said, “as it would effectively force BESS developers to use the AB205 opt-in certification program, bypassing local control and limiting the City’s influence on the outcome of the project and its community benefit.”
That’s what Vistra, the applicants for the BESS Project at the company’s power plant property, has done. Vistra notified the City in last October that it wanted to pause the City’s over 2-year review of its project, and would make application with the California Energy Commission (CEC), which was empowered under Assembly Bill 205.
AB 205 set up a review process wherein renewable energy projects, like Vistra’s 600 MW proposal, can apply to the CEC for review and permitting, if the local jurisdiction denies approval.
It’s part of the State’s efforts to steer the State of California into a fully renewable energy power grid, by 2045. That has put emphasis on solar energy and wind energy projects, both of which require energy storage plants to even out the demand and supply of such energy sources.
That’s because the wind doesn’t always blow nor the sun always shine, so battery back-ups are seen as needed to store excess energy when it’s made for use later.
Singewald said the second option would be better. “The second option is a permanent ordinance that allows for a BESS subject to a conditional use permit, locational restrictions, and development standards to address public safety and other community concerns; however, it should be noted, that even this second option does not prevent a future BESS application from bypassing local controls entirely through the State via the AB 205 opt-in certification program.”
Though it seems simple enough — just pass the ordinance — it’s more complicated than that, as Singewald lays out in his report.
“The City’s zoning code does not currently contain a land use classification or any specific permit requirements or use standards for development of a BESS.
“In cases where a specific land use is not defined, the zoning code authorizes the Community Development Director to assign the land use to a classification that is ‘substantially similar in character.’ The zoning code further states that ‘Land uses not listed…or not found to be substantially similar’ to classified uses are prohibited.”
This is entirely possible considering the proposed huge wind energy projects being developed now offshore of San Simeon. Those 3-gigawatts of wind energy have to come ashore someplace and connect to the power grid. Thus far it appears that Morro Bay and Diablo Canyon are the two leading spots for the landing of the power.
“Thus,” Singewald said, “if the City receives a future BESS application, the Community Development Director would need to determine if it’s substantially similar in character to a listed use or prohibited citywide. The Director’s decision on this would be appealable to the Planning Commission.”
And anything the Planning Commission decides is appealable to the City Council, most of whose land use decisions are then appealable to the Coastal Commission.
The current zoning ordinance has a similar category under the heading, “Public Works and Utilities.” But it’s not a good fit.
Public Works and Utilities include, “Generating plants, electric substations, solid waste collection, including transfer stations and materials recovery facilities, solid waste treatment and disposal, water or wastewater treatment plants, corporation yards, equipment service centers, and similar facilities that primarily provide maintenance and repair services, storage facilities for vehicles and equipment, their associated offices, and similar facilities of public agencies or public utilities,” reads the report.
The zoning code allows “public works and utility” projects within most all zones — commercial, residential and industrial.” But, it would not be allowed in a “Commercial/Visitor-Serving” area, which is what the power plant property is currently zoned, and was the main point behind Measure A-24, which voters approved at the November Election.
A-24 took aim at the zoning issues reaffirming the CV-S zoning at the power plant, plus the City-controlled lease areas from Beach Street out to Morro Rock. If any projects in that affected area need zoning changes, the City must seek approval of voters.
“A conditional use permit is needed for Public Works and Utilities in the visitor serving commercial and all residential zoning districts,” Singewald’s report said. “However, this use classification does not contain any specific use standards that are relevant to the development of a BESS project.”
If this situation already exists, how has the City been reviewing this application for two years? It apparently hasn’t come up before.
“The use classification was not part of the discussion on the Vistra BESS Project,” Singewald said, “because it already required a master plan and local coastal plan [LCP] Amendment due to its location on the power plant property. The master plan and LCP Amendment would have assigned a BESS as an allowed use on the project site.”
But an “emergency ordinance” has to be justified. “The purpose of an urgency ordinance is to allow a city or county to take swift action to temporarily prohibit a certain land use when necessary to protect public health, safety, and welfare.”
A permanent ordinance would address several issues: require CDPs for each project; identify zoning districts where they would be allowed (with a CDP); establish guidelines like setbacks form residential areas, schools and so-called “sensitive land uses;” identify safety standards; and setting up the various studies a BESS project would be required to do, such as offsite consequences analysis and economic benefit studies, among others.
Still, AB 205 would be available if a project applicant hit a brick wall at the local level, city or county, seemingly making this whole exercise pointless.
However, AB 205 requires the CEC, plus Coastal Commission to conduct proper reviews and try to make sure projects conform with applicable local laws whenever possible. It does however, give the CEC authority to simply ignore local laws and in essence over-ride them.
Vistra said it would apply to the CEC for an AB 205 relief by the end of this year, and this is be4lieved to be the first challenge of the AB 205 process, which isn’t guaranteed win for Vistra.
The Coastal Commission has been given equal review authority over the projects under the California Coastal Act. The commission is the only agency that issues Coastal Development Permits or CDPs and the BESS Project will have to have this to win approval.
In early August, CCC staffers commenting on the BESS Project’s Environmental Impact Report and a City inquiry into the project’s compliance with the Coastal Act, the staff wasn’t very supportive and expressed numerous concerns with the project and its prospects for approval.
Among the issues was environmentally sensitive habitat at the BESS project site; tsunami inundation zones; flood plains; sea level rise; and even the appropriateness of it in the Coastal Zone.
Normally, for an industrial use like this to be allowed so close to the coast, it must be “coastal dependent.” The old power plant was coastal dependent because it used seawater to cool steam, which ironically was the main downfall of Duke Energy’s failed project to replace the old boiler plant with a new, more efficient combined-cycle power plant, continuing to burn natural gas.
With the go-ahead given on an emergency ordinance, it will come back to the city council at a future meeting. Initial emergency ordinances are in effect for 45 days and can be extended up to 22 months.
