Solar Rights and Solar Access Laws: An Overview

1. Solar Rights and Solar Access Laws: An Overview Solar 2008 ASES Conference May 6, 2008 Colleen McCann Kettles, JD

2. Solar Access Refers to the ability of one property to continue to receive sunlight across property lines without obstruction from another’s property (buildings, foliage or other impediment).

3. Solar Rights Refers to the ability to install solar energy systems on residential and commercial property that are subject to private restrictions, i.e., covenants, conditions, restrictions, bylaws, condominium declarations as well as local government ordinances

4. Solar Rights & Access Laws in US 34 States (and a handful of municipalities) have some kind of protection for solar access or solar rights.

5. States Without Protection There are a number of states that do not have solar rights/access protection, in spite of their strong solar policy leanings: Pennsylvania Texas Vermont … to name a few

6. States With Protection • Even those states that do have solar rights or solar access laws almost uniformly have enforcement issues that can render the laws ineffective or subject to expensive litigation to enforce.

7. Solar Rights: Addressing Ordinances Standard Language: The adoption of an ordinance by a governing body which prohibits or has the effect of profiting the installation of solar collectors is expressly prohibited.

8. Solar Rights: Addressing Private Land Use Restrictions Any covenant, restriction or condition contained in any deed, contract, security agreement or other instrument affecting the transfer or sale of or any interest in real property which effectively prohibits the installation or use of a solar energy device is void and unenforceable.

9. Solar Access Laws Solar access laws are virtually all “voluntary,” meaning that a solar owner cannot require that their neighbor agree to a solar easement.

10. Solar Access Laws Standard Elements: Must be in writing, be recorded (as any other real property interest) Express the horizontal and vertical angles of the easement

11. Solar Access Laws Standard Elements (cont’d): Provisions relating to the grant or termination of the easement Any compensation arrangements to the grantor for maintaining the easement or to the grantee in the event of interference

12. Back to the Drawing Board Solar Rights and Access Laws in force today are either unenforceable, impractical or require extensive and expensive litigation to perfect the rights of the solar owner

13. Back to the Drawing Board In order to be effective, Solar Rights and Access Laws must pertain to new and existing homes, have simple enforcement mechanisms, and address current and emerging solar (and other renewable?) technologies.

14. Elements of a Solar Rights and Access Law: Towards a Model Statute • Preamble • Public Purpose (needed to assure constitutionality) • Policy Statement in Support of Solar Energy (needed to allow for retroactive effect and overcome constitutional challenge) [continued]

15. Elements of a Solar Rights and Access Law: Towards a Model Statute • Legislative Intent (for example): • Energy security • Cost of energy • Green House Gas reduction strategy • Economic development • Fossil fuel offset • Renewable Portfolio Standard

16. Elements of a Solar Rights and Access Law: Towards a Model Statute • Definitions • Solar Energy Device (active and passive) • Other renewable measures (wind, geothermal, etc) • Buildings included (residential, commercial, multi-family, condominium)

17. Elements of a Solar Rights and Access Law: Towards a Model Statute • Application • CCRs • Solar contract • Condominium declarations • Ordinances • Building Codes • Permit fees [continued]

18. Elements of a Solar Rights and Access Law: Towards a Model Statute • Enforcement • Litigation • Prevailing party legal fee award • Penalties • Code enforcement

19. Thank you! If you have questions or comments please contact me at: cmkettles@cfl.rr.com