Agenda - Planning Commission - 05/07/2009

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owners could not mediate successfully, and the district attomey filed the case as a crimi- npl violation. The defendants in the, case are quoted saying, "We are the first citizens in the state of California to becoilvicted of a crime for growing redwood trees." The violation under the California Solar Shade Control Act identified the trees asa public nuisance (as misdemeanor) with a CONSIDERATIONS FOR PLANNERS To date, most state laws have focused on removing barriers to the installation of solar systems or have bee~ permissive in allowing property owners to enter into solar access easements. As solar installations become more common-espeCially in urban areas-the potential for one neighbor to shade another's solar panels will occur more often and conflicts $1,000-per-day fine. However; in the final court ruling the judge determined that only two of the six trees required pruning or removal due to the shade obstructioh. In contrast, a few years earlier the Santa Clara County Court ruled that the trees at a home in another case were not the cause of a shading problem under the law. The trees at issue were on the property of the local govem- ment, which was exempt from the law. In a 1982 case considered by the Wiscon- sin Supreme Court, the owner of a solar system sought relief from the construction of a resi- dence that obstructed sunlight to his property. ' Thecourtfound in the favor of plaintiff, stating thattne consfruction was a piivatenulsance, and remand~d the case to a ll?wer court. Imme- diately preceding the hearing, the state legisla- ture enacted a law (WI Statute 700-41) to allow an owner of an active or passive solar energy system or a wind energy system to receive com- pensation for an obstruction' of solar energy by a structure outside a neighbor's building envelope as defined by the zoning restrictions in effect at the time the solar collector or wind energy system was installed. will become more common. Few state or local laws have addressed those potential conflicts. At first, it l1}ay seem that encouraging solar energy systems that produce clean, local energy should be a veryhigh priority, perhaps even preempting an adjacent property owner's right to build in ways that would affect an ex- isting or potential solar system. However, we would caution that, even,in the case of green- house gas (GHG) emission reductions, main- taining access to solar energy may not always be the most effective strategy. Ten trees absorb about 0.25 tons of CO2 per year, and a 300-square-foot solar array [solar panels] can save about three tons of GHG emissions. For,comparison, a transit-oriented development (TOO) With a hundred units is estimated to save over 500 tons per year of GHG from reduction in auto use alone. From a GHG benefit point of view, the importance of promoting transit-oriented development can- not be overstated. Ensuring that solar access protectio'n regulations do not inadvertently prevent or dis- courage TOO is an important but complicated 'issue. To illustrate, Berkeley is a densely built community blessed with some of the besttran- sit in the Bay Area. New transit-oriented devel- opment will generally occur along major transit corridors and in downtown. However, these transit corridors are immediately adjacent to much lower density residential neighborhoods. In that way, Berkeley is typical of older cities. The city's General Plan calls for higher density development along these transit bou-- levards, which invariably means four- and five- story buildings up against neighborhoods with one- and two-story homes. Despite city policy, almost every new higher density residential or mixed use building is bitterly fought by the adjacent neighborhood. As in most commu- nities, the residents of neighborhoods near these corridors are concerned with the traffic, parking, noise, privacy, and other impacts of a higher density, bulkier residential or mixed use project backing up to their neighborhood. Inevitably, the issues around new con~ struction and solar access will be tested. While Berkeley does not currently have any local ordinances specifically protecting solar energy systems, it does have a solar access ordinance. The current regulations are related to the impacts tree growth may have on the, loss of sunlight to homes and are meant as a tool to address neighbor disputes. The law sets forth a process for resolving such disputes, beginning with voluntary mediation or arbitra- ' tion followed by litigation However, no specific standards are set forth in the ordinance. Berkeley also requires that the shading impacts on adjacent homes from new develop- ment be evaluated, but has no set standards for addressing those impacts. As the city con- siders the policy issues around solar access, it must also co~nsiderthe likelihood that an or- dinance protecting solar photovo[taic systems could easily give ammunition to those opposed to taller, more intense buildings'ingeneral. Ifan ordinance establishes a strong right to soiar access, or requires very high costs to mitigate impacts on existing or potential solar installations, such ordinances could discour- age, delay, or prevent higher density transit- oriented development. Consider the potential conflict created by solar access ordinance in a downtown district that permits tall structures. ' If one low-rise ~ommercial building puts a solar array on its roof, what happens when a taller building is proposed next door that would shade that pane!? How do youvalue one prop- erty owner's access to the sun in relation to the benefits of a taller building that would reduce ZONING PRACTICE 4.09 AMERICAN PLANNING ASSOCIATION [page 5 59