Agenda - Planning Commission - 05/07/2009

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The fundamental goal of all zoning is to try and ensure that one owner's use of property does not have a significant detrimental impact on other owners' enjoyment of their property. or eliminate that access but leadto significant 'reductions in vehicle miles traveled? Communities considering a local solar access ordinance need to consider the follow- ing issues: '_'.' . Who is entitled to solar access? . Does the local govern'ment have to playa role in protecting access? . How should communities place a value on access? Solar Access Entitlement Is there an entitlement to solar access? Solar ac- cess is one m9re element to consider in the bun- dle of property rights that is the basis of land- use law. The fundamental goal of all zoning is to try and ensure that one owner's use of property does not have a significantdetrimental impact on other owners' enjoyment of their property. A property owner does not have an absolute right to use property as he likes. Land-use attorneys talk about the bundle of rights that comes with property ownership, and those rights can.be modified by local governments forthe health, safety, and welfare of the community. In Berkeley, as in every developed com- munity, there is little agreement as to how much regulation of private property is acceptable. Is one person entitled to add a second floor to his home ifit.will shade the bedroom of his neigh- bor, or block his neighbor's panoramic views? These are fundamentalzoning questions. Any solar access ordinance must decide whether access is a "right" that any property oWner has, and it must state the degree to which that right may be impinged by the actions of his neighbor. In an urban setting,establishing any absolute right to solar access would clearly be, counter- productive relative to other policy goals. Hands-on or Hands-off There is no reason why local government must define the terms of the solar access debate. It can, as several states and localities have done, decide that while there may be some level of solar access right, the impact that one property owner has on another and any compensation due as a result of that impact is a matter to be worked out between property owners. If owners fail toresolve their differences, the civil courts 60 become the venue for making these determina- tions. Other states have allowed property own- ers to enter into private easements, and allow this matter to be addressed solely as a contrac- tual matter betwee'n private property owners. While this is certainly one approach, the courts are not generally considered the best place for resolving policy issues: The costs of private litigation can be very high and require years to resolve. Courts interpret and apply laws to thf:! facts ofa specific case. Th e legislature or city council is where competing policy objectives can be evaluated. Vague and unclear policies can result in interpretations of law that seem contrary to the intent ofthe law or result in unintended consequences counter to the underlying policy direction. Regulating the impacts of one neighbor on another is exactly what zoning ordinances are intended to accomplish. The drafting of zoning ordinances allows for public policy objectives to be openly discussed and for reasonable compro- mises to be made through a public process. In regard to solar qcceSS, there are certainly com- peting public policy objectives, such as a desire to maximize the local generation and use of solar energy that is potentially in conflict with the de- sire to maximize development near transit. PlacingValueon Solar Access Should solar impairment be considered com- pensable, and how does a community deter- mine the degree of compensation for such a loss? If that access is partially impaired, how does one measure the value of that impairment? Cities constantly face the claim that the actions of one property owner will reduce the property value of a neighbor. Local govern- ments have traditionally stayed away from trying to place a value on the impact of one neighbor's action on another's, so long as each property owner operates under a consistent un- derlying set of zoning regulations that apply to everyone. By establishing ground rules, it may be possible for local governments to set the framework for private negotiation, or it could emgroil the government in a long, unproduc- tive refereeing of solar rights determinations. At this time, we find little evidence that local or state governments have sought to address the conflicting policy goals of solar energy gen- eration and shading by nearby higher density development. The New Mexico law allowing for recordation of solar'easements may have taken this issue into partial account by not allowing an'easementto be recorded against a property where the permitted development is taller than of 36 feet. However, local ordinances imple- menting thislaw'can preemptthis provision. Given the potential impacts of solar ac- c.ess disputes on future development, state . and local governments may want to establish guidelines for addressingsituations where so- lar access is affected by,adjacent development. Communities considering such guidelines should pay attention to the following variables: The potential for an effective solar instal- lation. is backyard shading as important as roof shading? 15 the roof orientation conducive to solar power, and how much of the roofis effectively available? The existing site conditions. Do trees or other existing structures already shade poten- tial solar locations? The time of year and the time of impact. Is shqde in December more detrimental to the operation of the system than shade in June? . Is a 20 percent loss at 3 p.m. for an hour at midwinter considered compensable relative to a 30 percent loss fortwo hours at 9 a.m. in the summer? How do variations in system size affect this determination? Various state and local laws have established 9 a.m. to 3 p.m. on the winter solstice as the threshold for considering when a shadowing impact is occurring. Under the state and local access laws where a time of day or year are established, these times are thresholds below whiCh no impact is assumed to occur, and above which an impact is assumed to occur. ZONINGPRACTICE 4.09 AMERICAN PlANNING ASSOCIATION Ipage 6