Solar Rights and Solar

Access Laws: An Overview

Solar 2008ASES Conference

May 6, 2008Colleen McCann Kettles,

JD

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).

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

Solar Rights & Access Laws in US

34 States (and a handful of municipalities) have some kind of protection for solar access or solar rights.

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:

PennsylvaniaTexasVermont

… to name a few

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.

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.

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.

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.

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

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

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

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.

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]

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

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)

Elements of a Solar Rights and Access Law: Towards a

Model Statute

• Application– CCRs– Solar contract– Condominium declarations– Ordinances– Building Codes– Permit fees [continued]

Elements of a Solar Rights and Access Law:

Towards a Model Statute

– Enforcement• Litigation• Prevailing party legal

fee award• Penalties• Code enforcement

Thank you!

If you have questions or comments please contact me at:

cmkettles@cfl.rr.com