Ordinance Number 1116
URGENCY ORDINANCE NO. 1116
AN INTERIM ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SAN JUAN CAPISTRANO PROHIBITING NEW
COMMERCIAL BATTERY ENERGY STORAGE SYSTEMS
WITHIN THE CITY OF SAN JUAN CAPISTRANO,
ADOPTED AS AN URGENCY MEASURE; AND FINDING
THE ACTION TO BE EXEMPT FROM CEQA
WHEREAS, the City of San Juan Capistrano, 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, Engie North America (“Applicant”) is proposing to construct a BESS
facility on land currently owned by Saddleback Church located at the northern end of the
city; and
WHEREAS, in December 2021, the City received entitlement applications and a
letter of intent from the Applicant requesting to establish a BESS facility. The proposed
project is located within the Planned Community (“PC”) District zoning designation. The
PC District zoning designation allows uses and structures permitted within the city subject
to the approval of a Comprehensive Development Plan (“CDP”) consistent with the
General Plan, pursuant to San Juan Capistrano Municipal Code (“Municipal Code”)
Section 9-3.315(b). In the absence of an approved CDP, the PC District zoning
designation allows identified interim uses pursuant to Municipal Code Section 9-3.315(c)
subject to the development standards for the Agri-Business District, pursuant to Municipal
Code Section 9-3.315(e)(3); and
WHEREAS, the Planning Director also has the authority and responsibility to
review uses not listed in the Municipal Code and permit such proposed unlisted use if it
falls within the purpose and intent of the base district, is of a comparable nature to the
principal, accessory, or conditional uses set forth in the base district, is not listed in the
base district, and will not be detrimental to property in the vicinity of such use pursuant to
Municipal Code Section 9-3.203; and
WHEREAS, on April 29, 2022, the Development Services Director determined that
a BESS facility cannot be accommodated by an unlisted use determination under
Municipal Code Section 9-3.203 as the required findings could not be met. As such, the
preparation and approval by the City Council of a CDP would be required to allow the
proposed use. Consequently, in September 2022, Saddleback Church submitted a
request for the City Council to initiate a Rezone study to establish a CDP that would
govern the approximately 161-acre Saddleback Church Rancho Capistrano property; and
WHEREAS, the proposed CDP would have identified the uses currently operating
on the property (i.e. a church use), uses allowed on the property by the General Plan,
Ordinance No. 1116 April 2, 2024
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and a BESS facility use. On November 1, 2022, the City Council denied the initiation of a
Rezone study to create the proposed CDP; and
WHEREAS, the City’s current Zoning Regulations do not contain criteria
specifically for BESS facilities; and
WHEREAS, in 2022, the Governor signed into law Assembly Bill 205 (“AB 205”),
which expands the California Energy Commission’s (“CEC”) powerplant siting authority—
previously limited to thermal powerplants—to certain renewable energy facilities,
including energy storage systems (as defined in Pub. Util. Code section 2835) that are
capable of storing 200 Megawatt-hours or more of electrical energy; and
WHEREAS, pursuant to AB 205 (as codified at Pub. Res. Code Division 15,
Chapter 6.2), an applicant proposing to build a qualifying energy facility may file an “opt-
in application for certification” at 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,
for those facilities”; and
WHEREAS, in reviewing so-called opt-in projects, the CEC functions as the Lead
Agency for purposes of California Environmental Quality Act (“CEQA”) review. In
certifying an opt-in project, the CEC must make certain findings; and
WHEREAS, in early 2023, Applicant informed the City that it has opted to pursue
a State approval process through the CEC, as opposed to seeking local approval through
the City Council; and
WHEREAS, while the Applicant’s proposed project may no longer require local
entitlement approvals, there remain significant public safety-related concerns that must
be analyzed prior to any BESS project moving forward within San Juan Capistrano,
whether at the Saddleback Church site or elsewhere in the community; and
WHEREAS, there have been several fires at BESS facilities both in California and
nationwide. BESS facilities that use lithium-ion batteries create particularly unique fire and
explosion hazards. Lithium-ion batteries are inherently safe and stable but certain
conditions elevate the risk of fire such as impacts, puncture, or mechanical damage,
overcharging, overheating, and short circuits. The proposed location is near established
residential neighborhoods in San Juan Capistrano and downslope of several hundred
homes in Laguna Niguel; and
WHEREAS, the proposed project is located adjacent to Trabuco Creek, which is
an environmentally sensitive watercourse that flows to the ocean. Should a fire occur at
the proposed BESS site, fire extinguishing compounds used to combat the fire (either
from the ground or air) would have the potential of entering the creek and significantly
impairing water quality and native flora and fauna; 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
Ordinance No. 1116 April 2, 2024
3
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. 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 and the city where the facility is located; and
WHEREAS, SB 38 recognizes the many hazards that BESS facilities create. It
provides 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 and water runoff, and threats to natural waterways. The plan may also include
procedures related to shelter-in-place orders and road closure notifications; 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 65868 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 10 months and 15
days and subsequently for an additional 12 months; and
WHEREAS, the potential for development of new commercial BESS facilities
within the City of San Juan Capistrano 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 the approval of use permits, building permits, or other applicable entitlements
for such uses would result in that threat to public safety and welfare; 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.
NOW, THEREFORE, the City Council of the City of San Juan Capistrano does
ordain as follows:
Section 1. The recitals above are each incorporated by reference and adopted as
findings by the City Council.
Section 2. This interim ordinance is not subject to the CEQA (Public Resources
Code §21000, et seq.) pursuant to CEQA Guidelines (Cal. Code Regs., tit. 14, §15000 et
seq.) Section 15060(c)(2) [activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment]. Here, the interim ordinance will prohibit
certain projects from proceeding for a period of time during which the City will study the
potential development. As a result, this interim ordinance will not result in a direct or
reasonably foreseeable indirect physical change in the environment.
Ordinance No. 1116 April 2, 2024
4
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], and, in the alternative,
15307 [Class 7 categorical exemption for regulatory activity to assure the protection of
natural resources], and, in the alternative, 15308 [Class 8 categorical exemption for
regulatory activity to assure the protection of the environment]. Here, the interim
ordinance will prohibit certain projects from proceeding for a period of time during which
the City will study the potential development. This activity is meant to assure the
protection of the environment and natural resources by studying the hazards associated
with BESS facilities, such as unique fire and explosion hazards, for potential development
of zoning regulations for BESS facilities.
Alternatively, 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.
Here, the interim ordinance will prohibit certain projects from proceeding for a period of
time during which the City will study the potential development. This activity is meant to
prevent or mitigate the loss of, or damage to, life, health, property, and essential public
services by studying the hazards associated with BESS facilities, such as unique fire and
explosion hazards, for potential development of zoning regulations for BESS facilities.
Section 3. From and after the date of enactment of the interim ordinance, no use
permit, variance, building permit, business license, or any other entitlement for use shall
be approved or issued for the establishment, construction, or operation of a commercial
BESS facility for any location or property within the City of San Juan Capistrano, unless
a use permit was approved prior to April 2, 2024, authorizing the establishment,
construction, and operation of the commercial BESS facility, in which case the
commercial BESS facility may continue in operation as approved but may not be replaced
or modified in any manner that would require revision or amendment to the use permit
under the City’s Zoning Regulations. As used in this ordinance, the term “commercial”
means the use of a BESS facility to provide electricity to third parties, for consideration.
Section 4. This interim ordinance is urgently needed for the immediate
preservation of the public health, safety, and welfare based on the findings in this interim
ordinance. It shall take effect immediately upon adoption and shall be of no further force
and effect 45 days following the date of its adoption, unless earlier repealed by the City
Council or extended in accordance with the provisions set forth in California Government
Code Section 65858.
Section 5. The penalties for land use violations that are prescribed in Section 9-
1.201 of the Municipal Code shall apply to violations of the provisions of this interim
ordinance.
Section 6. If any provision of this ordinance or its application to any person or
circumstance is held to be invalid, such invalidity has no effect on the other provisions or
applications of the ordinance that can be given effect without the invalid provision or
application, and to this extent, the provisions of this resolution are severable. The City
Ordinance No. 1116 April 2, 2024
5
Council declares that it would have adopted this resolution irrespective of the invalidity of
any portion thereof.
Section 7. The City Council hereby directs staff to prepare, execute, and file with
the County of Orange Clerk a notice of exemption within five (5) working days of the
adoption of this Ordinance.
Section 8. The Custodian of Records for this Ordinance is the City Clerk and the
records compromising the administrative record for this Ordinance are located at 32400
Paseo Adelanto, San Juan Capistrano, CA 92675.
PASSED, APPROVED AND ADOPTED by the City Council of San Juan Capistrano,
California, at a regular meeting of the City Council held on the 2nd day of April, 2024.
City of San Juan Capistrano
________________________________
SERGIO FARIAS, MAYOR
ATTEST:
________________________________
CHRISTY JAKL, ACTING CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
I, CHRISTY JAKL, Acting City Clerk of the City of San Juan Capistrano, do hereby certify
that the foregoing is a true and correct copy of Urgency Ordinance No. 1116 was duly
adopted and passed at the Regular Meeting of the City Council on the 2nd day of April
2024 by the following vote, to wit:
AYES: COUNCIL MEMBERS: Taylor, Campbell, Hart, Bourne and Mayor Farias
NOES COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
_____________________________________
CHRISTY JAKL, ACTING CITY CLERK
Ordinance No. 1116 April 2, 2024
6
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss AFFIDAVIT OF POSTING
CITY OF SAN JUAN CAPISTRANO )
I, CHRISTY JAKL, declare as follows:
That I am the duly appointed and qualified City Clerk of the City of San Juan Capistrano;
That in compliance with State laws, Government Code section 36933(1) of the State of
California, on the 28th day of March 2024, at least 5 days prior to the adoption of the
ordinance, I caused to be posted a certified copy of the proposed ordinance entitled:
AN INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN
JUAN CAPISTRANO PROHIBITING NEW COMMERCIAL BATTERY
ENERGY STORAGE SYSTEMS WITHIN THE CITY OF SAN JUAN
CAPISTRANO, ADOPTED AS AN URGENCY MEASURE; AND FINDING
THE ACTION TO BE EXEMPT FROM CEQA
This document was posted in the Office of the City Clerk
________________________________
CHRISTY JAKL, ACTING CITY CLERK
San Juan Capistrano, California
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss AFFIDAVIT OF POSTING
CITY OF SAN JUAN CAPISTRANO )
I, CHRISTY JAKL, declare as follows:
That I am the duly appointed and qualified City Clerk of the City of San Juan Capistrano;
that in compliance with State laws, Government Code section 36933(1) of the State of
California.
On the 11th day of March 2024, I caused to be posted a certified copy of Urgency
Ordinance No. 1116, adopted by the City Council on April 2, 2024, entitled:
AN INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN
JUAN CAPISTRANO PROHIBITING NEW COMMERCIAL BATTERY
ENERGY STORAGE SYSTEMS WITHIN THE CITY OF SAN JUAN
CAPISTRANO, ADOPTED AS AN URGENCY MEASURE; AND FINDING
THE ACTION TO BE EXEMPT FROM CEQA
Ordinance No. 1116 April 2, 2024
7
This document was posted in the Office of the City Clerk
________________________________
CHRISTY JAKL, ACTING CITY CLERK
San Juan Capistrano, California