In recognition of the substantial effect that widespread use of electric vehicles (EV) will have in reducing carbon emissions, the state and federal governments have set ambitious goals to increase the number of EVs on the road. California aims to put at least five million zero-emission vehicles on California roads by 2030 and have 100 percent zero-emission vehicles for new cars and trucks by 2035, and medium- and heavy-duty vehicles by 2045. The federal government has set a goal that at least 50 percent of new cars and trucks sold in 2030 will be zero-emission vehicles.
In an effort to reach these goals, California has adopted legislation with the goal of increasing the number of EV charging stations and expanding existing infrastructure to supply the demand for charging. These laws are intended to remove barriers to EV charging projects by streamlining the permit application requirements, providing binding timelines for jurisdictions to act on those applications, and reducing local discretion to impose burdensome parking replacement requirements, among other things. The purpose of this article is to summarize key laws that can help developers and governments more quickly permit EV charging infrastructure.
CONSISTENT APPLICATION REQUIREMENTS AND MANDATORY TIMEFRAMES FOR APPLICATIONS AND ISSUANCE OF PERMITS
AB 1236 (2015) provides streamlined permit approval for the installation of EV charging stations. The law requires a city, county, or city and county to administratively and ministerially approve applications for EV charging stations which meet all health and safety requirements of local, state, and federal law. There is no limit on the size or type of EV charging station that qualifies for AB 1236 except that it be built in compliance with the California Electrical Code and similar applicable safety and performance standards. Local agencies may deny an application for an EV charging station only if they find in writing, based on substantial evidence, that the installation of the EV charging station would cause a specific, adverse impact upon the public health or safety that cannot be mitigated or avoided. The findings must include the basis for the rejection of potential feasible alternatives of preventing the adverse impact. By its terms, AB 1236 is intended to require by-right approval for any and all qualifying EV charging stations and prohibit local agencies from imposing burdensome discretionary approvals, use limitations, or design standards, except to address health and safety. AB 1236 is currently set to expire January 1, 2030.
AB 970 (2021), a companion to AB 1236, sets very short, mandatory timelines for a local jurisdiction to determine whether an application for an EV charging station per AB 1236 is complete and to approve or deny the application. If the local jurisdiction fails to deem an application complete or issue a written correction notice, the application is deemed complete after 5 or 10 business days, depending on the number of EV charging stations proposed. If the jurisdiction does not, within 20 or 40 business days depending on the number of EV charging stations proposed, approve or deny the application, or find in writing a specific, adverse impact on public health or safety based on substantial evidence, then the application is deemed approved.
AB 970 further provides that local jurisdictions cannot require applicants to replace existing parking spaces which are reduced or eliminated to accommodate an EV charging station or associated equipment.
AB 1236 and AB 970 apply to general law and charter cities.
Notwithstanding AB 1236's streamlining mandate, it has been the experience of the authors of this alert that many local agencies are not abiding by AB 1236's requirements to ministerially approve qualifying EV charging stations. Our attorneys have successfully helped guide some local agencies in the correct direction, but it is our opinion that, for AB 1236 to fulfill its potential, courts will need to issue corrective interpretations or the legislature will need to amend AB 1236 to confirm that its provisions supersede local regulations unless otherwise expressly stated.
MEETING PARKING MINIMUMS: ELECTRIC VEHICLE CHARGING SPACES
Prior to AB 1100 (2019), some local jurisdictions did not consider parking spaces with EV service equipment as a parking space and required developers to include additional parking spaces to comply with parking requirements. AB 1100 clarifies that a parking space with EV service equipment or designated as a future EV charging space counts as at least one standard parking space for purpose of satisfying applicable minimum parking requirements.
The California Green Building Standards Code ("CALGreen") imposes specific mandatory requirements for EV charging technology for new development projects. Depending on the type and size of the project, CALGreen requires that new multi-family residential projects, hotels, and motels include a certain percentage of EV Ready and EV Capable parking spaces. In addition, for larger developments, a certain percentage of spaces must be equipped with EV charging stations. An EV Ready space is equipped with Level 2 EV supply equipment, while an EV Capable space can support future EV supply equipment.
The number of EV Capable and EV charging stations required in new non-residential projects depends on the total number of parking spaces at the site. To avoid future required modifications to new warehouses, grocery stores, and retail stores with off-street loading spaces, certain EV infrastructure must be included to accommodate future EV charging stations. EV charging stations offered for public use or common use must also provide minimum numbers of certain types of accessible parking spaces based on the total number of charging stations on the site.
CONTEMPLATING THE INSTALLATION OF ELECTRIC VEHICLE CHARGING STATIONS IN LEASES
California Civil Code §§ 1947.6 and 1952.7 require lessors of residential and commercial properties to approve a request to install EV charging stations if certain requirements are met. California Civil Code § 1947.6 applies to residential properties and outlines the obligations of the lessee requesting to install the EV charging stations. The lessor is required to allow the lessee to install an EV charging station in an allotted parking space if certain requirements are met.
California Civil Code § 1952.7 applies to commercial properties and deems void or unenforceable any lease term "executed, renewed, or extended on or after January 1, 2015," that "prohibits or unreasonably restricts" the installation or use of an EV charging station. However, lessors may include "reasonable restrictions" on EV charging station installation in leases. In addition, if the lease requires approval by the lessor, the lessee must seek approval from the lessor before installing an EV charging station. If the lessee agrees in writing to comply with specific requirements, the lessor must approve the request. In addition, the lessee must maintain liability coverage naming lessor as an additional insured, and lessee is responsible for certain costs incurred from damage to the property from the installation, maintenance, repair, removal, or replacement of the EV charging station, as well as the maintenance, repair, replacement, and electricity costs related the EV charging station.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
