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<br />However, the degree of impact and any compen-
<br />sation due are a matterfor private negotiation.
<br />As a threshold for private party negotiation,
<br />such general determinations may be adequate.
<br />However, signi,ficant adClitional analysis would
<br />- be needed if local governments wanted to pro-
<br />vide guidelines for resolving disputes.
<br />The percentage of impairment. How much
<br />of an existing or potential solar array would be
<br />in shadow and for how long? Ten percent at the
<br />assigned hour (see above) is a commonly estab-
<br />lished threshold for solar acc,ess impact. Similar
<br />to time of year and day, 10 percent may be a
<br />reasonable threshold for establishing when there
<br />is 13n impact for purposes of private negotiations,
<br />but this guideline is not sufficient if government
<br />wants to assist in resolving solar access disputes.
<br />The type afinstallation. Some types of
<br />installations (e.g., a water heating system) may
<br />be more feasible in any given situ~tion than
<br />another (e.g., solar power generation).
<br />An additional critical issue is how to
<br />value potential solar energy relative to an
<br />existing solar array. This carries the compens-
<br />ability question to a much rno(e concrete
<br />level. If someone has invested in a solar array
<br />for whatever purpose, the impacts of an ad-
<br />jacent property owner shading that array has
<br />a measurable and immediate impact. Again,
<br />we would argue that leaving this solely to
<br />Private dispute resolution or establishing very
<br />high values on solar access may be counter
<br />to other policy goals. However, making One
<br />property owner responsible for compensating
<br />another's reduction in direct income seems an
<br />appropriate subject for an ordinance address-
<br />ing solar access.
<br />As with other ordinances related to com-
<br />pensation, government should probably seek
<br />to make determinations of compensation a
<br />private n'egotiation between property owners,
<br />bringing government into the picture only in
<br />the last resort when private agreementcannot
<br />be reached. However, because solar installa-
<br />tions have a measurable cost and measurable
<br />returns on that investment, and there is usually
<br />data on the productivity of the system, there
<br />is much more concrete evidence\o assist local
<br />governments in arbitrating between property
<br />owners. It can be expected that initial efforts to
<br />resolve these differences will be challenging as
<br />governments wrestle with the many variables
<br />that need to be considered, such as how to
<br />value energy overtime or howto amortize the
<br />investment in a solar array: However, these
<br />determinations should become easier as there
<br />is a sufficient record of cases.
<br />
<br />ADDITIONAL RESOURCES
<br />Database of State Incentives for Ren-
<br />wables & Efficiency (DSIRE): www.
<br />dsireusa.org.
<br />
<br />Sherwood, Larry. 2008. U.S. Solar Trends
<br />Market 2007. Latham, N.Y.: Interstate
<br />Renewable Energy Council (www.ire.
<br />cusa.org).
<br />
<br />National Renewable. Energy Laboratory,
<br />Department of Energy: www.nrel.gov.
<br />
<br />CONCLUSIONS
<br />The discussion above has focused on the
<br />trade-offs associated with taller transit-orient-
<br />ed development that shades potential solar
<br />access in adjacent neighborhoods. In that
<br />context, the trade-offs between preserving
<br />solar access and encouragingTOD are fairly
<br />clear. Based solely on a GHG assessment of
<br />relative benefit, TOD clearly should not be
<br />hostage to solar access protection. The ben-
<br />efit/cost equation is less obvious in a residen-
<br />tial neighborhood context when one neighbor
<br />simply wants' to build a -taller house a.djacent
<br />to a shorter neighbor. Solar access could be
<br />one more weapon in the never-ending neigh-
<br />bor wars that occur in some communities as
<br />people seek to preserve the perceived charac-
<br />ter oftheir neighborhood or simply don't want
<br />a taller building next to their home. Under a
<br />poorly worded solar protection ordinance,
<br />putting solar panels on a home could become
<br />a way of preventing a neighbor from adding a
<br />second story addition in a situation where it
<br />would otherwise be allowed. All of the issues
<br />described above need to be fully considered
<br />in an ordinance in any community, whether
<br />higher density development is part of the pic-
<br />ture or not.
<br />
<br />
<br />NEWS BRIEF
<br />
<br />COURT DECIDES SIGN CASE
<br />
<br />By Lora Lucero, A/CP
<br />In February', the Supreme Court of New Jersey
<br />concluded a township's sign code prohibiting
<br />a union from displaying a to-foot-tall inflatable
<br />r~t violates the First Amendment. "The rat has
<br />long been asymboi of labor unrest" and, as
<br />part of a labor protest, the union displayed
<br />the rat balloon on the sidewalk in front of the
<br />
<br />blfsiness where they were ina labor dispute.
<br />The sign code prohibits "balloon signs or other
<br />inflated signs (except grand opening signs) ...
<br />displayed for the purpose of attracting the at-
<br />tention of pedestrians and motorists." A police
<br />officer warned the protestors to deflate the rat,
<br />but found it was reinflated when-he returned an
<br />hour later and issued a summons. The union
<br />official was ultimately found in violation ofthe
<br />. sign code and fined. The state's highest court
<br />set aside the conviction and held the sign code
<br />violates the RrstAmendment. The sidewalk is
<br />a traditional public forum where the govern-
<br />ment's ability to restrict expressive activity is
<br />very limited. The sign code is content-based
<br />because the sign code prohibits the union from
<br />displaying a rat balloon while allowing bal-
<br />loons as part of a grand opening. The township
<br />lacked a compelling governmental interest that
<br />justified the restriction. State v. Wayne De.A:nge-
<br />10, Supreme Court of New Jersey [highest court],
<br />Decided February 5,2009, Case No. A-73.
<br />
<br />Lara Lucero is editor of Planning & Environ-
<br />mental Law and staff liaison to APA's Amicus
<br />Curiae Committee.
<br />
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<br />
<br />VOL. 25, NO.4
<br />Zoning Practice is a monthly publication ofthe
<br />American Planning Association. Subscriptions are_
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