Agenda - Planning Commission - 05/07/2009

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introduced in the'197os. While not comprehen- sive, the types of legal protections that devel- oped include solar easements, solar shade prohibitions, and preemption of aesthetic controls for solar installations. Solar,Easements Many states have enabled the use of solar ease- ments to protect ambient lighting as well as light access for solar energy equipment. This type of easement is a private agreement between prop- erty owners that guarantees access to,sunlight. Most solar easements are recorded as deed restrictions that run with the land, and proce- dures for relinquishing easements are generally set forth in state law. Some owners of residen- tialsolar energy systems use these easements to restrict any new construction ortree planting which could block light access to sunlight. Among the many states with provisions for such easements are Alaska, Colorad'o, Idaho, Kansas, Maine, Montana, Rhode 'Island, and Virginia. Many ofthese laws were adopted as early a~ the 1970S and do not necessarily re- late specifically to solar energy systems. Most recently the State of New Jersey (NJ Statute 46:3-24) enacted laws specially allowing solar easements for the purpose of exposure for a solar energy d,evice. Solar Access Protections Some recent state laws go much furtherthan voluntary easements. The California Solar Shade Control Act of 1979 as originally drafted prohibited shading of solar collectors that oc- curs due to tree growth after the solar system wasInstalled. Under the law, no more than 10 pe,rcent of the collector can be shaded between 10. a.m. and 2 p.m. The 1979 law also included minimum locatian standards far the solar col- lectars, requiring that they be five feet from the property line and 10. feet from the ground. California's law was amended in 200.8 to address issues that stemmed from a court case discussed later in this article. These changes included an exemptian to. the act if the trees and shrubs were planted prior to the installation of the salar collectar. The definitian af solar collec- tor was changed to include devices installed on the ground. Additianally the legislation changed a violation from apublic nuisance violation to a private nuisance. In otherwords,under the revi- , sions, enforcement afthe law is naw a matter between private parties, rather than a jurisdic- tion treating the matter as a public nuisance and actingto enforce the law. 58 Wisconsin law (Stat. S 700.41) allows for compensation when asolar energy system is shaded by development on an adjacent property, regardless afwhether'an easement was granted by the adjacent property owner. Another Wisconsin law (Stat. S 844.22) also states that any structure or vegetative growth that occurs after the installation af a solar or wind energy system and interferes with its function is considered to be a private nui- sance. New Mexico's Solar Recordation Act al- lows a property owner with a solar energy system to. record' an easement for sun access, defined by the statute as 9 a.m. to 3 p.m. on the winter solstice. While an adjacent property owner will be notified of the intent to record an easement, permission from the adjacent owner is not required. Underthis law, solar ease- ments run with the land and may be bought and sold. If an adjacent project shades the sys- tem by more than 10. percent, the owner ofthe project must purchase the solar easement right and extinguish it (NMSA 47-3-6 to 47-3-12). At the local level, the County of Santa Cruz, California, has established strong salar access protection in its ordinances. It states that impacts on a solar collector "shall be miti- ized commercial districts have no guaranteed protections unless the property has a solar access permit. Solar siting requirements far all planned unit develapments and subdivisions are required to ensure that roof surfaces can support 75 square feet of solar collectors for each dwelling unit. Several other local jurisdictions have' adopted guidelines or requirements for sola.r access in new residential subdivisions. Preemptions of Local Design Standards States that have addressed solar access have generally adopted laws preempting local zon- ingthat might limit the installation ofthese devices based on aesthetic ar other grounds. Many of these same laws also preempt private conditions, covenants, and restrictions that might limit a property owner's ability to install a system. For example, California's Solar_Rights Act (AB 2473) Of2004 prohibits provisions in local ordinances that create unreasonable barriers to the installation of solar energy systems, includ- ing design standards for solar installations. The taw only allows local jurisdictions to require improvements for aesthetic purposes if the cost is less than $2,000. gated to the maximum extent feasible during the view of any permit to construct a building" (12.28.040, Santa Cruz Building Regulatians). The City af Boulder, Colorado, has strong protections for solar access for-the purpose of.generating electricity and has divided the city int'o solar access areas based an zoning. This ordinance provides broad protections in less dense residential neighborhoods. Urban- SOLAR CONFLICTS As one northern California newspaper framed a recent caurtcase pitting the owner of a small grove of redwood trees and a neighboring property's solar PV system: "It can come down to a clash of cherished green values." The state law as written at the time placed higher value on the productian of a solar energy system. The conflict grew when the two Sunnyvale property ZONINGPRACTlCE 4.09 AMERICAN PLANNING ASSOCIATION Ipage 4