Ordinance No. 2024-14R: Interim Ordinance Extending Urgency Ordinance No. 2024-12R

Preamble

The City of Escondido is a municipal corporation organized under California law.
Battery Energy Storage Systems (BESS) collect energy, store it, and discharge it later, typically during high demand.
Escondido Energy Center, LLC proposed a BESS facility at 1968 Don Lee Place (Assessor’s Parcel No.: 228-381-74-00).
On February 7, 2024, a land use development application (Planning Case No. PL24-0037) was filed for a 50-megawatt (MW) BESS facility with 31 lithium-ion battery storage enclosures in the General Industrial (M-2) zone.
The General Industrial zoning designation allows for various activities, including power plants, oil refineries, transmission facilities, and uses involving hazardous chemicals and waste.
A BESS within the General Industrial zone would be permitted via the Major Plot Plan review process as per the Escondido Municipal Code.
Current Zoning Regulations lack specific criteria for BESS facilities.
In 2022, Assembly Bill 205 (AB 205) expanded the California Energy Commission's (CEC) powerplant siting authority to renewable energy facilities, including energy storage systems capable of storing 200 Megawatt-hours or more of electrical energy.
Under AB 205, an applicant may file an "opt-in application for certification" at the CEC, giving the CEC permitting authority over the project, replacing the need for local permits.
The CEC acts as the Lead Agency for California Environmental Quality Act (CEQA) review for opt-in projects.
Significant public safety concerns must be analyzed before any BESS project proceeds in Escondido.
Recent fires at BESS facilities, particularly those using lithium-ion batteries, pose unique fire and explosion hazards.
Hazards include impacts, puncture, mechanical damage, overcharging, overheating, and short circuits.
The proposed application site is within 700 feet of established residential uses.
On August 28, 2024, Resolution No. 2024-113 outlined concerns with BESS projects, including negative economic impacts and public health and safety risks like “thermal runaways.”
On September 5, 2024, the Escondido Fire Department responded to a fire at a 30 MW San Diego Gas and Electric (SDG&E) BESS facility at 571 Enterprise Street.
The incident involved an active fire of a Lithium-Ion battery bank, leading to a defensive strategy, evacuations (approximately one square mile for 48 hours), and school shutdowns.
Responders from various departments monitored the site, including water and air sampling.
On October 7, 2023, Senate Bill 38 (SB 38) amended California Public Utilities Code Section 761.3, requiring every BESS facility in California to establish an emergency response and emergency action plan.
The BESS facility owner/operator must coordinate with local emergency management agencies, unified program agencies, and local first responders to develop and submit the plan.
Given the new technology and increasing megawatt capacity, Escondido needs time to study the technologies and designs to develop appropriate development guidelines.
California Government Code Section 65858 allows for an urgency measure via an interim ordinance with a four-fifths vote to protect the public from a threat resulting from a zoning proposal.
Government Code Section 65868 states such a measure is effective for 45 days, extendable for an additional 10 months and 15 days, and subsequently for an additional 12 months.
At its October 9, 2024, City Council meeting, staff findings showed the potential for BESS facilities without adequate land use policies and standards presents a threat to public safety and welfare.
On October 9, 2024, the City Council approved an Interim Ordinance prohibiting new commercial battery energy storage systems unless a use permit was approved prior, based on the need for public health, safety, and welfare.
The temporary prohibition on BESS facilities is scheduled to expire on November 23, 2024.
City staff issued a written report on the study's progress and measures taken to alleviate the condition that led to Urgency Ordinance No. 2024-12R.
City staff remains concerned the absence of land use policies and standards to implement SB 38 poses a threat to public safety and welfare.
City staff is still researching the impacts of BESS facilities and uses, including review, evaluation, and comment on the San Diego County BESS Best Practices – Policy Recommendations for Battery Energy Storage Systems Projects Report.
The Interim Ordinance is exempt from CEQA under CEQA Guidelines Sections 15061(b)(3) and 15307, and in the alternative, 15308 and pursuant to Public Resources Code Section 21080(b)(4) and CEQA Guidelines Section 15269(c).
City staff seeks additional time to investigate these issues, formulate recommendations, and explore adjustments to the City's General Plan and Zoning Regulations.

Ordinance

Section 1

The recitals are incorporated by reference and adopted as findings.

Section 2

This Interim Ordinance is not subject to CEQA pursuant to CEQA Guidelines Section 15060(c)(2) because it won't result in environmental changes and is merely extending prohibition during study.
It is also exempt under CEQA Guidelines Sections 15061(b)(3), 15307, and 15308.
It is alternatively 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.

Section 3

This Interim Ordinance is urgently needed for the immediate preservation of public health, safety, and welfare.
It takes effect immediately upon adoption.

Section 4

Urgency Ordinance No. 2024-12R is extended for ten months and fifteen days unless earlier repealed or extended per California Government Code Section 65858.

Section 5

No use permit, variance, building permit, business license, or entitlement shall be approved/issued for a commercial BESS facility unless a use permit was approved before October 9, 2024.
"Commercial" means the use of a BESS facility to provide electricity to third parties for consideration.

Section 6

Penalties for land use violations in Sections 33-1310 through 33-1313 of the Escondido Municipal Code apply to violations of this Interim Ordinance.

Section 7

If any provision is held invalid, it does not affect the other provisions.

Section 8

The City Council directs staff to file a notice of exemption with the County of San Diego Clerk.

Section 9

This extension Ordinance supplements, not duplicates or contradicts, state and federal law.

Section 10

Unless further extended, this extension Ordinance remains in effect until close of business on October 5, 2025.

Section 11

SEPARABILITY: Invalid portions do not affect the remaining portions.

Section 12

Pursuant to Government Code Sections 36934 and 36937(b), this Ordinance is effective immediately upon adoption.

Section 13

The City Clerk is directed to certify passage and publish the Ordinance or a summary.

Certification

Passed on November 20, 2024.

10-Day Report

I. Background

On October 9, 2024, the City Council adopted Urgency Ordinance No. 2024-12R, establishing a temporary prohibition on new commercial BESS within the City.
The ordinance prohibits approvals for BESS facilities unless a use permit was approved prior to October 9, 2024.
An interim ordinance expires 45 days after adoption unless extended.
Government Code Section 65858(d) requires a written report ten days prior to the expiration of an interim ordinance detailing measures taken to alleviate the conditions that led to its adoption.

II. Measures Taken Since the Adoption of the Interim Ordinance

Urgency Ordinance No. 2024-12R was enacted to preserve public health, safety, and general welfare due to fire, explosion, dangerous conditions, and negative economic impacts.
The City has taken the following steps:
1. City staff have taken preliminary steps to study and consider the hazards associated with commercial BESS facilities, land use development policies, and standards relating to commercial BESS facilities to evaluate the potential development of such facilities within the City.
2. Explored amendments to the City's General Plan and Zoning Regulations to enhance public safety and mitigate impacts, including research into actions taken by other cities in California.
  - The City of Beaumont adopted an "Energy Storage Facility" ordinance (Ordinance No. 1142).
  - Staff review contemporary literature, including the U.S. Department of Energy’s technical report.
3. Engaged with interested parties to collect concerns and insights.
4. Taken steps toward an in-depth review of existing emergency response procedures, including review, evaluation, and comment on the San Diego County BESS Best Practices – Policy Recommendations for Battery Energy Storage Systems Projects, and identifying environmental sensitive watercourses that could be impacted by BESS facility proximity.

Ill. Conclusion

The City has not concluded its research and recommends an extension of Urgency Ordinance No. 2024-12R.