City’s renewable energy law—no “grandfathering in” for current solar-system owners

Those who have waited patiently for the city to get rid of restrictions on solar-energy installations will be pleased. Those who have already installed solar panels will be disappointed, or even angry.

The amended Truth or Consequences ordinance “pertaining to the Customer Generated Renewable Energy Program” will finally be published, the public hearing probably held in October.

The T or C City Commission approved publishing the amended ordinance four-to-one, Mayor Pro Tem Rolf Hechler voting nay, during the Sept. 14 meeting.

Amending the ordinance has been stalled with the city’s Public Utility Advisory Board for over three years. Most of the members refused to change restrictions put in place since 2015 to keep electric- department profits high and customers’ cost-savings low.

The PUAB still resisted amending Ordinance 664 after PUAB Chairperson George Szigeti informed them two years ago it had always violated state law. The city ordinance was originally passed in 2015.

In 2007 the state legislature passed a law forbidding counties and cities from limiting solar-panel systems:

3-18-32. Limitation of county and municipal restrictions on solar collectors.

1. A county or municipality shall not restrict the installation of a solar collector as defined pursuant to the Solar Rights Act [47-3-1to 47-3-5 NMSA 1978], except that placement of solar collectors in historic districts may be regulated or restricted by a county or municipality.
2. 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.

History: Laws 2007, ch. 232, § 1.

Electric Department Director Bo Easley was in attendance at the PUAB meeting when Szigeti cited the state law, yet he continued to enforce it.

Easley was also in attendance at the city commission meeting in May when City Manager Bruce Swingle told commissioners they could put off dealing with the ordinance “because it’s not being enforced.” Easley did not correct Swingle.

Swingle, without admitting he misinformed them earlier, told commissioners on Sept. 14 the ordinance had been enforced until recently.

The timing is important because the city commission was led to believe there were only about two dozen customers whose solar-panel systems had been restricted in size. They have never been warned the ordinance also violated property rights. The state Solar Rights Act, 47-3-1 through 47-3-5, passed in 1977, acknowledges that accessing the sun’s power is a “property right.”

The city’s lack of due diligence—not researching state law in 2015 when the original ordinance was passed—and then its dilatoriness—not correcting the law until now—has burgeoned the number of private owners to 80 whose right to access solar power has been violated.

The ordinance and its enforcement not only violated state laws, but also constitutional due process. Ignorance of the law is not excused because it’s published, written down, and accessible, but not in this case. Ordinance 664 was never “codified,” never made part of the city code. The city commission’s May 12, 2015 meeting included Ordinance 664 in the city packet. It states the ordinance will amend city code 14-45, but it never made it into that section of the code. To add more confusion, the Sept. 14 city commission meeting packet includes Ordinance 735, which claims it will amend city code 14-48, but that’s not where Ordinance 664 was codified either. A cut-and-paste from city code states: “Secs. 14-48—14-50. – Reserved.”

The city commission took up the PUAB’s draft of the amended ordinance twice in the last two months. It was remanded back to the PUAB the first time. The commission wasn’t perturbed by receiving no strike-through document or the lack of research and discussion on past violation of and new conformance with state laws.

Hechler, a solar-panel-system owner, said it was unfair for the city to renege on its promise to pay customers about 13 cents per kilowatt hour for excess power. The customers were subjected to size and other restrictions and the buy-back rate was to off-set the cost.

The always-illegal city Ordinance 664 made applicants, including new-construction applicants, to establish an electric account and to track it for one year. The number of solar panels was limited to correlate with 90 percent of the kilowatts purchased from the city in the prior year.

This forced solar applicants to not only limit the size of their system, but to build it at a higher, retrofitted cost, making it hard to earn back the cost of investment within a reasonable time frame. It also squelched the cost-benefit of owning an electric vehicle and the honorable and critical desire to save the planet.

Hechler said he based his rate of return on the city’s promise that excess kilowatts produced would be bought by the city at their customer retail rate. “My rate of return has been cut in half,” Hechler said. The new ordinance has the city buying excess kilowatts at the wholesale rate, which is between 6 and 7 cents per kilowatt hour.

City Attorneys Jay Rubin and John Appel were consulted to address Hechler’s claims, Appel taking the lead. Appel wrote a letter to Swingle on Sept. 2, which was not made public.

Appel said, via conference call during the city commission Sept. 14 meeting, the city “can change its policy at any time,” and the new ordinance “does not violate any legally protected interest.”

The city will not honor its promise to the existing 80 owners; will not “grandfather them in.”

The other city commissioners agreed creating two classes of customer was too hard on the utility office, supported by Appel, who said non-solar customers could claim they are subsidizing solar-system owners and that threat was the greater liability.

Henceforth, systems will not be restricted in size and the city only has to buy excess kilowatts produced “within the city’s needs.”

The city will decide in January whether it will purchase private owners’ excess kilowatts. If it does buy the excess power, private owners will be paid the yearly average kilowatt-hour wholesale rate, to be calculated in January, since it fluctuates throughout the year.