George Szigeti, chairperson of the Truth or Consequences Public Utility Advisory Board, distributed copies of a 2007 state law to fellow board members at the PUAB’s April 19 meeting that declares cities and counties “shall not” restrict the size of privately-owned solar systems. T or C has limited the generating capacity of solar systems installed by its electric utility customers since it passed Ordinance 664 in 2014.
Referring to the state law, Szigeti told PUAB board members: ““What it says is what we’ve been doing is not legal.”
The state law says:
3-18-32. Limitation of county and municipal restrictions on solar collectors.
A. A county or municipality shall not restrict the installation of a solar collector as defined pursuant to the Solar Rights Act [47-3-1 to 47-3-5 NMSA 1978], except that placement of solar collectors in historic districts may be regulated or restricted by a county or municipality.
B. A covenant, restriction or condition contained in a deed, contract, security agreement or other instrument, effective after July 1, 1978, affecting the transfer, sale or use of, or an interest in, real property that effectively prohibits the installation or use of a solar collector is void and unenforceable.
Ordinance 664, in direct contravention of 3-18-32, says in section (1)b: “The City reserves the right to deny interconnection for over-sized systems and in no case may the renewable energy generation system be sized such that its inverters rated capacity exceeds 90% of the most recent 12 month average of customers’ usage.”
T or C’s enforcement of Ordinance 664 may be illegal for another reason. It has never been published as part of the city code. It was supposed to be Code 14-48, as stated in the ordinance, but the Truth or Consequences Code of Ordinances, available online, states that this number is still “reserved.” A downloadable copy of Ordinance 664 is attached here.
Currently, there are 57 private solar producers in T or C. Most of them installed their solar systems after the passage of the 2014 ordinance. It is unknown how many of them had to wait a year and then retro fit a solar system on new construction because of the city’s baseline usage requirement. How many others were prevented from owning an electric car because the city did not permit them to generate enough electricity to be able to meet both their domestic usage and the car’s charging needs?
An effort to lift or lessen restrictions in Ordinance 664 has been spearheaded for the last year by local residents Ariel Dougherty and Ron Fenn. The PUAB voted down any revision to the ordinance at its March 15 meeting.
Interim City Manager Traci Alvarez attended the PUAB’s April 19 meeting, and, after Szigeti pointed out that the city’s renewable energy ordinance violates state law, she suggested the PUAB “hold a public workshop before revising the ordinance.” Szigeti, on the other hand, suggested conferring first with City Attorney Jay Rubin.
The Sun asked Rubin for his opinion about the legality of Ordinance 664, but received no response.
The PUAB passed a motion to “table revising 664 until after a public workshop can be scheduled by the city manager and city staff.”