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Solar Access Laws

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Description


Despite strong support for renewable-energy development at the state and local levels, many consumers still face local ordinances or homeowner association rules that prohibit, restrict or drastically increase the cost of installing a solar-energy system. Meanwhile, owners of existing systems face potential challenges when trees or new structures on neighboring properties shade their systems. Solar access laws, which may be implemented at both the state and local levels, are designed to protect a consumer’s right to install and operate a solar-energy system on a home or business, and to maintain access to sunlight.
 
At the state level, the most common type of solar access law is a solar easement. A solar easement allows the owner of a solar-energy system to secure rights to continued access to sunlight from a neighboring party whose property could be developed in such a way (e.g., building, landscaping) as to restrict the system’s access to sunlight. A solar rights law, on the other hand, provides protection by limiting or prohibiting private restrictions (e.g., neighborhood covenants and bylaws, local government ordinances and building codes) on the installation of solar-energy systems.

Local governments may be authorized to adopt ordinances to ensure solar access, development guidelines requiring proper street orientation, and zoning ordinances that contain building height restrictions to avoid shade from neighboring properties.


Status & Trends


Solar Easements. More than half of U.S. states authorize the creation of solar easements. The majority of solar easement statutes stipulate that any instrument creating such an agreement must contain the following elements: 
  • The vertical and horizontal angles, expressed in degrees, at which the solar easement extends over the real property subject to the solar easement. Some states allow for any other description which defines the three-dimensional space, or the place and time of day in which an obstruction to direct sunlight is prohibited or limited.
     
  • Any terms or conditions, or both, under which the solar easement is granted or will be terminated.
     
  • Any provisions for compensation of the owner of the property benefiting from the solar easement in the event of interference with the enjoyment of the solar easement or compensation of the owner of the property subject to the solar easement for maintaining the solar easement. 
Other common components of a solar easement include:
  • A description of the property subject to the easement (servient property) and a description of the property benefitting from the solar easement (dominant property).
     
  • Definitions of the systems, components or structural design features whose access to sunlight is covered under the solar easement law. Specifying the types of solar-energy devices the statute is designed to promote is essential. (For example, are clotheslines considered a solar-energy device? Are passive solar buildings protected?) Only about 10 U.S. states provide a definition of a solar-energy device, collector or system. 
Such agreements must be in writing and are subject to the same recording and indexing requirements as other instruments affecting the title to real property. System owners may need to cSolar Access Lawsompensate a neighboring party in order to secure solar access rights. Such easements are typically transferred with the property title and do not terminate unless specified by conditions of the easement. In general, state laws that allow for voluntary solar easements may have limited effectiveness since system owners have no guarantee of an agreement with a neighbor whose property could interfere with access to sunlight.

Solar Rights. While securing voluntary agreements offers some protection for system owners, this approach does not address potential barriers imposed by local governments or homeowner associations on the initial installation of a solar-energy system. Nearly half of U.S. states have enacted solar rights laws, which typically limit restrictions that neighborhood covenants and/or local ordinances may impose on the installation of solar equipment. The laws vary in their provisions, especially with respect to the types of solar equipment protected, types of buildings covered, applicability of the law to existing buildings, and enforcement provisions. Vague or absent provisions in solar rights laws have led to lawsuits and delayed (or canceled) installations in a number of states.

An effective solar rights law typically:
  • Defines the types of solar-energy equipment protected by the law, such as solar-electric, solar-thermal, passive solar construction, etc. [e.g., New Mexico].
     
  • Prevents covenant restrictions from prohibiting solar-energy systems.

  • Provides a clear and quantifiable standard for what constitutes an unreasonable restriction on solar-energy systems. For example, changes for aesthetic reasons cannot increase installation costs by more than 10% or decrease system efficiency by more than 25% (e.g., Hawaii).
  • Clearly defines exemptions (e.g., historic districts) from the law.

  • Defines what types of buildings or structures are covered by the law (e.g., California).
     
  • Awards costs and reasonable attorneys' fees to the prevailing party in any civil action arising from disputes with homeowners associations (e.g., Arizona).

Examples

  • Examples of states that have adopted solar easement laws with the basic elements outlined above include New Hampshire, Minnesota and Utah.
     
  • New Mexico’s Solar Recordation Act employs a more aggressive approach to securing an easement whereby the owner of a solar-energy system may claim a “solar right” by filing a declaration with the county clerk. After being notified of the declaration, affected parties have 60 days to contest the solar right; otherwise, the right to an unobstructed access from the solar-energy system to the sun becomes an enforceable right.
     
  • California’s Solar Rights Act, Solar Shade Control Act and other solar access policies combine elements of solar easements and protections against government and neighborhood restrictions.

Resources

 
 
A Comprehensive Review of Solar Access Law in the United States. Solar America Board for Codes and Standards, 2008.
 
Installing Solar Panels on Historic Buildings: A Survey of the Regulatory Environment. North Carolina Solar Center and National Trust for Historic Preservation, August 2012.

State and Local Policies Affecting the Advancement of Renewable Energy Sources. American Bar Association Energy Committee Newsletter, January 2007.

Solar Access Model Code and Recommendations. Solar America Board for Codes and Standards, 2008.

Clean Energy State Program Guide: Mainstreaming Solar Electricity: Strategies for States to Build Local Markets. Clean Energy Group and Peregrine Energy Group, April 2008.

Bringing Solar Energy to the Planned Community: A Handbook on Rooftop Solar Systems and Private Land Use Restrictions. Tom Starrs, Les Nelson and Fred Zalcman, 1999.
 



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