HomeMy WebLinkAboutOrdinance 670 BESS Urgency Ordinance Extension - signed
ORDINANCE NO. 670
AN URGENCY ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY, CALIFORNIA, EXTENDING ORDINANCE NO. 668
IMPOSING A PROHIBITION ON THE APPLICATION ACCEPTANCE, APPROVAL,
COMMENCEMENT, ESTABLISHMENT, OPERATION, RELOCATION OR EXPANSION
OF GRID-SCALE BATTERY ENERGY STORAGE SYSTEMS (BESS) WITHIN THE CITY
LIMITS DURING THE PENDENCY OF THE CITY’S REVIEW AND ADOPTION OF
REGULATIONS OF SUCH USES; AND FINDING THE ACTION TO BE EXEMPT FROM
CEQA
T H E C I T Y C O U N C I L
City of Morro Bay, California
WHEREAS, the City of Morro Bay, California (“City”) is a municipal corporation, duly organized under the
constitution and laws of the State of California; and
WHEREAS, in general, a Battery Energy Storage Systems (“BESS”) facility collects energy from the grid,
stores it, and then discharges that energy later to provide electricity or other grid services when needed, typically at
times of high demand; and
WHEREAS, there is a growing demand for BESS facilities in the state of California due to increased demand
for renewable electricity to reach the State’s clean energy goals and mechanisms to ensure reliability of the State’s
electric system, among other things; and
WHEREAS, the City does not have land use policies or standards in place to regulate the location and
operation of BESS facilities within the City limits which would address compatibility with surrounding uses and safety
among other issues; and
WHEREAS, the City has previously received one specific request to locate a grid-scale BESS facility on the
waterfront of the City limits, which resulted in the City and the applicant spending significant time and financial
resources processing the permit application; and
WHEREAS, during the application review process for the proposed BESS facility within the City limits,
residents from the community expressed significant concerns regarding the safety of BESS facilities in general, and
specifically in proximity to residential and visitor serving commercial uses; and
WHEREAS, on January 16, 2025, a major fire broke out at an existing BESS facility in the unincorporated
community of Moss Landing, prompting evacuations and highway closures in Monterey County. The Moss Landing
BESS facility is owned and operated by the applicant for a BESS facility in Morro Bay; and
WHEREAS, there have been several recent fires at BESS facilities both in California and nationwide. BESS
facilities that use lithium-ion batteries create particularly unique fire and explosion hazards. Information suggests that
lithium-ion batteries are potentially safe and stable when installed properly, however certain conditions elevate the
risk of fire and thermal runaways, such as impact, puncture, or mechanical damage, overcharging, overheating,
and/or short circuits; and
WHEREAS, the City of Morro Bay’s compact urban form, relatively dense residential neighborhoods and
small lots in close proximity to one another, and sensitive environmental resources make it uniquely vulnerable to
hazards from major fires, explosions, and toxic smoke plumes from a BESS facility; and
WHEREAS, the City’s waterfront area is a major tourist attraction and revenue generator for the City; and
WHEREAS, a catastrophic event at a BESS facility in the City limits would threaten the City’s budget and
local economy, which depend significantly on Morro Bay as a tourist destination; and
WHEREAS, on October 7, 2023, the Governor of California signed into law Senate Bill 38 (“SB 38”), which
amends California Public Utilities Code Section 761.3 to address safety concerns with BESS projects. SB 38 requires
every BESS facility in California to establish an emergency response and emergency action plan for the facility to
protect surrounding residents, neighboring properties, emergency responders, and the environment. Furthermore,
the BESS facility owner or operator must coordinate with local emergency management agencies, unified program
agencies, and local first responders to develop the plan, and submit the plan to the county where the facility is located.
Currently, the City of Morro Bay does not have procedures or standards to facilitate interagency coordination with
the County of San Luis Obispo and other response agencies; and
WHEREAS, SB 38 recognizes the many hazards that BESS facilities can create, providing that the
mandated emergency response and action plan may consider responses to potential offsite impacts such as poor
air quality, threats to municipal water supplies, water runoff, and threats to municipal waterways. The plan may also
include procedures related to shelter-in-place orders and road closure notifications. The City does not currently have
any procedures or standards for addressing potential offsite impacts associated with BESS facilities; and
WHEREAS, on June 30, 2022, the Governor of California signed into law Assembly Bill 205 (“AB 205”),
which expands the California Energy Commission’s (“CEC”) powerplant siting authority to certain renewable energy
facilities, including energy storage systems defined in California Public Utilities Code Section 2835 capable of storing
200 megawatt-hours or more of electrical energy; and
WHEREAS, pursuant to AB 205, as codified in California Public Resources Code Division 15, Chapter 6.2,
an applicant proposing to build a qualifying energy facility may file an “opt-in application for certification,” with the
CEC, and the CEC’s permitting authority over the proposed project is “in lieu of any permit, certificate, or similar
document required by a state, local, or regional agency, or federal agency, to the extent permitted by federal law,
and for those facilities;” and
WHEREAS, in reviewing opt-in projects, the CEC functions as the Lead Agency for the purposes of California
Environmental Quality Act (“CEQA”) review. In certifying an opt-in project, the CEC must make certain findings; and
WHEREAS, in the fall of 2024, the previously mentioned applicant informed the City that it intends to opt into
the CEC certification process set forth in AB 205, and requested to pause its application for municipal consideration
of local entitlements by the City of Morro Bay; and
WHEREAS, while this particular project may no longer require local entitlement approvals, if the applicant
withdraws its application with the City and applies for opt-in certification with the CEC, there remain significant public
safety concerns that must be analyzed prior to any BESS proposal moving forward within the City limits, whether at
the power plant property site or elsewhere in the community; and
WHEREAS, the potential for the development of new grid-scale BESS facilities in the City limits without
adequate land use policies and standards in place to implement SB 38 presents a current and immediate threat to
the public’s safety and welfare, and the approval of land use entitlements for such a use would result in that threat to
public safety and welfare because BESS facilities could result in potentially catastrophic environmental, safety, and
economic impacts; and
WHEREAS, California Government Code Section 65858 provides that, without following the procedures
otherwise required prior to the adoption of a zoning ordinance, an urgency measure in the form of an interim
ordinance may be adopted by a four-fifths vote of the City Council to protect the public from a current and immediate
threat to the public health, safety, or welfare resulting from a contemplated zoning proposal. Government Code
Section 65858 further provides that such an urgency measure shall be effective for only 45 days following its
adoption, but may be extended beyond the initial 45-day period, following compliance with that Section, for an
additional 22 months and 15 days; and
WHEREAS, at the January 28, 2025, City Council meeting, staff’s findings demonstrated that the potential
for development of new commercial BESS facilities within the City limits without adequate land use policies and
standards in place to implement SB 38 and to prevent potentially catastrophic interference with nearby communities
presents a current and immediate threat to the public’s safety and welfare, and approval of such use permits, building
permits, or other applicable entitlements for such uses would threaten public safety and welfare; and
WHEREAS, at its January 28, 2025, meeting, the City Council voted to approve an interim ordinance
prohibiting new commercial battery energy storage systems within the City limits based upon a need for the
immediate preservation of the public health, safety, and welfare as set forth herein, for an initial period of forty-five
days while staff researched and selected the best recommended course of action to address the safety related
concerns regarding BESS facilities (“Ordinance No. 668”); and
WHEREAS, the temporary prohibition on BESS facilities is scheduled to expire on March 14, 2025; and
WHEREAS, staff has issued a written report to the City Council on the progress of its study along with the
measures taken to alleviate the condition that led to the adoption of Ordinance No. 668; and
WHEREAS, with the issuance of a written report 10 days prior to the expiration of Ordinance No. 668 and
with a duly noticed public hearing taking place on February 25, 2025, the City is eligible to extend the urgency
ordinance prohibiting BESS facilities within City limits for an additional 22 months and 15 days pursuant to
Government Code Section 65858(d); and
WHEREAS, City staff is still in the process of conducting research to understand the impacts of BESS
facilities and uses on community welfare and exploring potential amendments to the City’s Municipal Code, General
Plan, and Local Coastal Plan is relation to BESS facilities; and
WHEREAS, staff remains concerned that the absence of adequate land use policies and standards to
address BESS facilities, including those necessary to implement SB 38 and prevent potentially catastrophic impacts
to nearby residents and environmental resources, poses a current and immediate threat to the public’s safety and
welfare; and
WHEREAS, in light of the significant safety risks associated with BESS facilities, City staff seeks additional
time to further investigate these issues, formulate recommendations for City Council consideration, and explore
adjustments to the City’s General Plan, Zoning Code, and Local Coastal Plan to mitigate the safety risks associated
with BESS facilities; and
WHEREAS, while this interim ordinance is in effect, the City intends to study and consider land use
development policies and standards related to BESS facilities that should be added to the City’s General Plan and
Zoning Regulations; and
WHEREAS, the City Council has conducted a public hearing during a regularly scheduled City Council
meeting on February 25, 2025, and considered all written and verbal comments, as well as the report and
presentation from staff.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Morro Bay, California:
Section 1: Incorporation of Recitals. The City Council of the City of Morro Bay finds that all Recitals are
true and correct and incorporated herein by reference.
Section 2: Urgency Findings. The City Council of Morro Bay hereby finds that there is a current and
immediate threat to the public health, safety, and/or welfare and a need for immediate preservation of the public
peace, health, or safety that warrants this urgency m easure, which finding is based upon the facts stated in the
Recitals above, and in the staff report dated January 28, 2025, as well as any oral and written testimony at the
January 28, 2025 or February 25, 2025 City Council meeting.
Section 3: Interim Moratorium on Grid-Scale Battery Energy Storage Systems.
A. Definition of Battery Energy Storage System:
For purposes of this interim ordinance, a Battery Energy Storage System (BESS) facility is an
electrochemical device that charges or collects energy from the grid or a distributed generation system
(e.g., power plant) and then discharges that energy at a later time to provide electricity or other grid
services when needed. BESS facilities can be small-scale “Behind-the-Meter” facilities that are
customer-sited stationary storage systems that are connected to the distribution system on the
customer’s side of the utility’s service meter. In contrast, larger grid-scale “Front-of-the-Meter” facilities
are on the utility side of the meter. “Front-of-the-Meter” facilities typically include large-scale energy
generation and storage facilities like power plants, wind farms, solar parks, and large-scale energy
storage systems. The proposed interim ordinance prohibits grid-scale “Front-of-the-Meter” BESS
facilities.
B. From and after the date of enactment of the interim ordinance, the establishment, construction, and
operation of new grid-scale “Front-of-the-Meter” Battery Energy Storage Systems is prohibited within
the city limits of the City of Morro Bay, and no use permit, variance, building permit, business license,
or any other entitlement for this type of use shall be approved or issued fo r the establishment,
construction, or operation of a BESS facility for any location or property, public or private, within the city
limits of the City of Morro Bay.
Section 4: Exclusions. The provisions of this interim ordinance shall not apply to individually owned single -
family residential battery storage, multifamily residential battery storage, or otherwise ancillary battery storage uses
that are “Behind-the-Meter” primarily used to meet single customer onsite energy storage needs.
Section 5: Compliance with the California Environmental Quality Act (CEQA). This interim ordinance is not
subject to CEQA (Public Resources Code Section 21000 et seq.) pursuant to CEQA Guidelines (California Code of
Regulations, Title 14, Section 15000 et seq.) Section 15060(c)(2) [activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment]. Additionally or alternatively, this interim ordinance is
exempt from CEQA under CEQA Guidelines Sections 15061(b)(3) [it can be seen with certainty that there is no
possibility the activity in question may have a significant effect on the environment], 15307 [Class 7, categorical
exemption for regulatory activity to assure the protection of natural resources], and 15308 [Class 8, categorical
exemption for regulatory activity to assure the protection of natural resources]. Further, this interim ordinance is
exempt from CEQA pursuant to Public Resources Code Section 21080(b)(4) and CEQA Guidelines Section
15269(c) because it prevents a clear and imminent danger that requires immediate action to prevent or mitigate the
loss of, or damage to, life, health, property, and essential public services.
Section 6: Severability. If any sections, subsections, sentences, clauses, phrases, or portions of this
Ordinance are for any reason held invalid or unconstitutional, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would have passed this and each
section, subsection, phrase, or clause of this Ordinance whether or not any one or more sections, subsections,
phrases, or clauses may be declared invalid or unconstitutional on their face as applied.
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Section 7: Term and Effect. This interim Ordinance is urgently needed for the immediate preservation of
the public health, safety or welfare, and shall become effective immediately upon its adoption pursuant to California
Government Code Section 36937, and shall be of no further force and effect twenty-three (23) months and three
(3) days following the date of its adoption unless earlier repealed by the City Council in accordance with the
provisions set forth in California Government Code Section 65858.
I HEREBY CERTIFY THAT the foregoing ordinance was INTRODUCED, ADOPTED, and PASSED as an
urgency measure by a four -fifths vote and ORDERED published at a regular meeting of the City Council held on
February 25, 2025, and passed by the following vote:
AYES: Wixom, Eckles, Edwards, Landrum, Luffee
NOES: None
ABSENT: None
ABSTAIN: None
RECUSE: None
______________________________
CARLA WIXOM, Mayor
ATTEST:
_____________________________
DANA SWANSON, City Clerk
APPROVED AS TO FORM:
_____________________________
ROBERT SCHULTZ, Interim City Attorney
Robert Schultz (Mar 5, 2025 17:21 HST)
Robert Schultz
Carla Wixom (Mar 5, 2025 19:40 PST)
Carla Wixom
Dana Swanson (Mar 6, 2025 09:28 PST)
Dana Swanson
Ord 670 BESS Urgency Ordinance Extension
Final Audit Report 2025-03-06
Created:2025-03-05
By:Heather Goodwin (hgoodwin@morrobayca.gov)
Status:Signed
Transaction ID:CBJCHBCAABAASmsh2t989HIw0FAdHJqjisLow2CS-XE1
"Ord 670 BESS Urgency Ordinance Extension" History
Document created by Heather Goodwin (hgoodwin@morrobayca.gov)
2025-03-05 - 10:27:24 PM GMT
Document emailed to rschultz@morrobayca.gov for signature
2025-03-05 - 10:28:17 PM GMT
Email viewed by rschultz@morrobayca.gov
2025-03-06 - 3:20:39 AM GMT
Signer rschultz@morrobayca.gov entered name at signing as Robert Schultz
2025-03-06 - 3:21:18 AM GMT
Document e-signed by Robert Schultz (rschultz@morrobayca.gov)
Signature Date: 2025-03-06 - 3:21:20 AM GMT - Time Source: server
Document emailed to cwixom@morrobayca.gov for signature
2025-03-06 - 3:21:21 AM GMT
Email viewed by cwixom@morrobayca.gov
2025-03-06 - 3:39:39 AM GMT
Signer cwixom@morrobayca.gov entered name at signing as Carla Wixom
2025-03-06 - 3:40:16 AM GMT
Document e-signed by Carla Wixom (cwixom@morrobayca.gov)
Signature Date: 2025-03-06 - 3:40:18 AM GMT - Time Source: server
Document emailed to Dana Swanson (dswanson@morrobayca.gov) for signature
2025-03-06 - 3:40:19 AM GMT
Email viewed by Dana Swanson (dswanson@morrobayca.gov)
2025-03-06 - 3:16:46 PM GMT
Document e-signed by Dana Swanson (dswanson@morrobayca.gov)
Signature Date: 2025-03-06 - 5:28:21 PM GMT - Time Source: server
Agreement completed.
2025-03-06 - 5:28:21 PM GMT