Solar Access Full

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A ComprehensiveReview of

Solar Access Lawin the United State

Suggested Standards for

Model Statue and Ordinanc

Prepared

Colleen McCann KettleFlorida Solar Energy Research and Educatio

Solar America Board for Codes and Standards

www.solarabcs.org





Solar America Board for

Codes and Standards Report

A Comprehensive Review of

Solar Access Law

in the United States

Suggested Standards for a

Model Statute and Ordinance

Prepared by

Colleen McCann Kettles

Florida Solar Energy Research and Education Foundation

October 2008



A Comprehensive Review of Solar Access Law in the United Statesii

Disclaimer

This report was prepared as an account o work sponsored by an agency o the United

States government. Neither the United States government nor any agency thereo, nor any o

their employees, makes any warranty, express or implied, or assumes any legal liability or

responsibility or the accuracy, completeness, or useulness o any inormation, apparatus,

product, or process disclosed, or represents that its use would not inringe privately owned

rights. Reerence herein to any specic commercial product, process, or service by trade

name, trademark, manuacturer, or otherwise does not necessarily constitute or imply its

endorsement, recommendation, or avoring by the United States government or any agencythereo. The views and opinions o authors expressed herein do not necessarily state or

refect those o the United States government or any agency thereo.

Download a copy of the report:

www.solarabcs.org/solaraccess


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Executive Summary

Solar energy systems require direct access to sunlight to operate eciently. Theinstallation o a solar energy system on a new or existing building requires exteriormodications that are subject to building codes and private regulation. This reportreviews the ability o existing law and regulation to protect solar access andrecommends specic measures to improve solar access.

The solar access issue will be separated into two distinct areas: solar easements andsolar rights. “Solar easements” reers to the ability o one property to continue to receivesunlight across property lines without obstruction rom another’s property (buildings,oliage, or other impediment). “Solar rights” reers to the ability to install solar energysystems on residential and commercial property that is subject to private restrictions,i.e., covenants, conditions, restrictions, bylaws, condominium declarations, as well aslocal government ordinances and building codes.

The United States has held that there is no common-law right to sunlight. This hasrequired that specic statutory authority be established to protect the rights o solarusers in terms o both their ability to install a solar energy system on their propertyand ater that system is installed to protect their access to sunlight, so that the systemremains operational.

Land use planning, authority or solar easements, and prohibiting covenants, conditions,and restrictions that impede the use o solar have all been employed to protect solaraccess with varying degrees o success. This report reviews traditional legal mechanismsthat govern the operation o public and private governments, as well as solar specicordinances and statutes that have evolved over the years. It concludes that mostcurrent law has been ineective or too expensive because o the lack o enorcementmechanisms.

The recommended elements o a comprehensive approach to protecting solar access are

outlined, and a model solar statute has been developed based upon the best practicesound across the United States. The model statute is intended to serve initially as a straw

man or discussion among stakeholders and will be revised to refect eedback basedupon their needs. The statutory reerences that constitute the best practices are providedin the appendix to acilitate discussion and eedback rom stakeholders.



A Comprehensive Review of Solar Access Law in the United Statesiv

Author Biography

Colleen Kettles is the Executive Director o the Florida Solar Energy Research andEducation Foundation. She ormerly served as the Associate General Counsel andDirector o Institutional Aairs or the Florida Solar Energy Center. Colleen has 30 yearso legal and policy research, program development, and implementation in the eld o solar energy and energy eciency. Colleen has also served as a contractor to the FloridaEnergy Oce, Florida Solar Energy Center, National Renewable Energy Laboratory, andDepartment o Energy. She has provided policy analysis or issues beore the Florida

Public Service Commission and committees o the Florida Legislature on matters relatedto solar energy. She has published and presented numerous papers on the range o issues dealing with solar energy and energy eciency policy. Colleen is a graduate o the University o Florida College o Law and is a member o the Florida Bar and theAmerican Bar Association. She serves on the board o directors o the Florida SolarEnergy Industries Association and the Florida Renewable Energy Association, and was aounding director o the Florida Green Building Coalition.

Florida Solar Energy Research and Education Foundation Web site:

www.flaseref.org

Solar America Board for Codes and Standards The Solar America Board or Codes and Standards (Solar ABCs) is a collaborative eortamong experts to ormally gather and prioritize input rom the broad spectrum o solar photovoltaic stakeholders including policy makers, manuacturers, installers, andconsumers resulting in coordinated recommendations to codes and standards makingbodies or existing and new solar technologies. The U.S. Department o Energy undsSolar ABCs as part o its commitment to acilitate wide-spread adoption o sae, reliable,and cost-eective solar technologies.

For more information, visit the Solar ABCs Web site:

www.solarabcs.org

Acknowledgement:

This material is based upon work supported by the Department o Energyunder Award Number DE-FC36-07GO17034.


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Table of Contents

Disclaimer .....................................................................................................................ii

Executive Summary ......................................................................................................iii

Author’s Biography ........................................................................................................iv

Solar ABCs .....................................................................................................................iv

Acknowledgements .......................................................................................................iv

Introduction ..................................................................................................................1

Solar access .............................................................................................................. 1

Historical perspective ............................................................................................... 1

The Doctrine o Ancient Lights ............................................................................. 1

The Fontainebleau Case ........................................................................................ 2

Early eorts to address solar access ......................................................................... 2

Land use planning .................................................................................................... 2

Solar Easements ....................................................................................................... 3

Covenants, Conditions, and Restrictions ............................................................... 3

Express termination ............................................................................................. 4

Modication ......................................................................................................... 4

Cancellation.......................................................................................................... 5

Local ordinances ................................................................................................... 5

Analysis o state solar access laws ................................................................................ 6

Solar easement statutes ............................................................................................ 6

Solar rights ............................................................................................................... 6Typical cases ............................................................................................................ 7

Exemplary solar access laws......................................................................................... 8

City o Gainesville, Florida .................................................................................... 8

State o Hawaii ..................................................................................................... 8

State o Massachusetts .......................................................................................... 8

State o New Jersey ............................................................................................... 9

State o New Mexico ............................................................................................. 9

City o Ashland, Oregon ....................................................................................... 9

Virgin Islands ........................................................................................................ 9State o Wisconsin ................................................................................................ 10

Recommendation .........................................................................................................10

Components o solar access legislation.........................................................................10

Model Statute/Ordinance to Encourage Access to Solar Energy .....................................12

Reerences ...................................................................................................................15

Appendix ……………………………………………………………………………….. ........... 16



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Introduction

Solar energy systems, whether thermal or photovoltaic, require direct access to sunlightto operate eciently. The installation o a solar energy system on a new or existingbuilding requires exterior modications that are subject to building codes and privateregulation. As our energy policies shit to advancing solar energy as a signicant sourceo our energy portolio, the conventional view o building codes and restrictive covenantsmust yield to guaranteeing access to sunlight to the ullest extent possible.

This report is divided into several sections. The rst reviews common law and conventional

statutes that might serve to protect solar access. The second reviews modern day eorts toaord access to sunlight through solar easements and solar rights. Finally, in developinga model solar access statute, we identiy the best practices employed by state and localgovernment and provide a recommended model. The appendix provides the ull text o the statutes that were used in developing the model, and can be reerred to in the eventthat more detail is desired in the model statute adopted or implementation.

Solar Access

The solar access issue is generally thought to involve the potential shading o solarcollectors by neighboring structures or vegetation. There is, however, another aspect tothe solar access issue: public and private restrictions on the use o property, includingrestrictive covenants in deeds, condominium and homeowner association bylaws,

architectural controls, and local government ordinances.

For discussion purposes, the issue o solar access in this report is separated into twoclearly dened areas: solar easements and solar rights. “Solar easements” reers tothe ability o one property to continue to receive sunlight across property lines withoutobstruction rom another’s property (buildings, oliage, or other impediment). “Solarrights” reers to the ability to install solar energy systems on residential and commercialproperty that is subject to private restrictions, i.e., covenants, conditions, restrictions,bylaws, condominium declarations, as well as local government ordinances and buildingcodes.

Historical Perspective

The Doctrine o Ancient Lights

“Ancient Lights” is a doctrine based on English law that reers to a negative easementthat prevents the owner or occupier o an adjoining structure rom building or placingon his own land anything that has the eect o obstructing the light o the dominanttenement. In common law, a person who opened a window in his house had a naturalright to receive the fow o light that passed through it. Quite literally, when a windowhad been opened or so long a time as to constitute immemorial usage in law, the lightbecame an “ancient light” that the law protected rom disturbance. The Prescription Acto 1832 created a statutory prescription or light. It provided that

when the access and use o light to and or (any building) shall have been actuallyenjoyed therewith or the ull period o 20 years without interruption, the right thereto

shall be deemed absolute and indeeasible, any local usage or custom to the contrary

notwithstanding, unless it shall appear that the same was enjoyed by some consent or

agreement, expressly made or given or that purpose by deed or writing (UK Statute Law

Database).



A Comprehensive Review of Solar Access Law in the United States2

The Fontainebleau Case

The Sunshine State—Florida—has the dubious distinction o ormalizing the rejectiono the Ancient Lights doctrine and pronouncing that there is no common law right tosunlight. The leading case in America on the right to sunlight is Fontainebleau HotelCorp. v. Forty-Five Twenty-Five, Inc. (Fontainebleau Hotel Corp., 1959). In this case, theFontainebleau Hotel in Miami Beach proposed a 14-story addition in the late 1950s. TheEden Roc Hotel, which was located immediately adjacent to the Fontainebleau, objectedto this addition. They claimed that during the winter months, rom approximately 2 p.m.

to sunset, the shadow o the proposed addition would extend over the cabana,swimming pool, and sunbathing areas o the Eden Roc.

They also contended that the addition would interere with the light and air on thebeach in ront o the Eden Roc and cast a shadow o such size as to render the beachwholly unt or the use and enjoyment o the guests o the Eden Roc. In addition, it wascharged that one o the reasons or the construction was actual malice and ill will on thepart o the President o the Fontainebleau toward the President o the Eden Roc.

The trial court ruled in avor o the Eden Roc on the grounds that no person has a rightto use his property to the injury o another (Caton & Kettles, 1980). However, thatdecision was reversed on appeal and construction was allowed to continue. Several

principles o law were set orth by the Third District that are still ollowed today and laidthe groundwork or some o the principles o solar law. The principles established by thiscourt are as ollows:

• A property owner must never use his property so as to injure the lawul rightso another. A property owner may put his own property to any reasonable andlawul use, so long as he does not thereby deprive the adjoining landowner o any right o enjoyment o his property that is recognized and protected by lawand as long as his use is not such a one as the law will pronounce a nuisance.

• A landowner does not have any legal right to the ree fow o light and air acrossthe adjoining land o his neighbor.

• The English doctrine o Ancient Lights has been unanimously repudiated in otherstates where that question has arisen and has no validity in Florida.

• Because there is no legal right to the ree fow o light and air rom the adjoiningland, there is no cause o action or nuisance, damages, or injunctive relie eventhough a building or structure intereres with the passage o light and air toadjoining premises.

Early efforts to address solar access

During the height o the 1978-1985 tax credits or solar energy equipment, a hosto articles and books were published promoting solar conscious land use planning(Kraemer, 1978). While not widely adopted, these guidelines provided some excellentand well thought out approaches to protecting solar access in new home construction.These guidelines remain useul today but will typically only apply to new constructionand not address the vast inventory o existing homes and neighborhoods.

Land use planning

Local governments have the ability to adopt solar-access policies within the rameworko the local comprehensive and land use plans. A policy statement recognizing thebenets o solar energy and supporting public regulations to promote these benetsestablishes the public purpose and validity o such actions. Incorporating solar-siteplanning in land use planning allows the developer to maximize southern exposures so



that as many buildings and lots as possible can have maximum access to sunlight. Trees,major vegetation, and taller buildings must be placed in such a way that the shadowingo adjacent residential structures will be minimized. In the site-planning process, adeveloper can provide that the solar sky space above neighboring parcels o land willremain clear and unobstructed to preserve solar access. One way to accomplish thisobjective is to provide or solar easements, which are dened as restrictions on adjoininglots that would prohibit intrusions into the solar sky space, such as another building ortrees. A restrictive covenant can accomplish this as well by providing that no solar energycollector shall be shaded by any building, vegetation, or obstruction between certainhours on a certain date o any year.

Landscape ordinances can be modied to promote vegetation that complements solarenergy use or provides exemptions or trees and vegetation that block solar access.

Solar Easements

A solar easement is the prevalent method o assuring solar access. The general principleo law in eect in the US is that a land owner owns at least as much o the air spaceabove the ground as he can occupy or use in connection with the land, and the act thathe does not occupy it in a physical sense by erection o buildings and the like is notmaterial (Caton, 1980). Because the property owner does have property rights in the

air space above the land, he has the right to grant an easement or light within that airspace. However, an easement or light and air cannot be created by implication nor canit be implied by any length o continuous enjoyment (Caton, 1980). This decision urthereroded the doctrine o Ancient Lights and resulted in the need or statutory authority ormodern solar easements (Caton, 1980).

Covenants, Conditions, and Restrictions

Condominium and homeowner associations are airly common entities in residentialcommunities today. The associations generally govern the aairs o the communityand, in addition to enorcing and amending restrictive covenants, may impose otherrestrictions on property owners subject to their rules.

The condominium association is a corporate entity and has theauthority to govern its aairs in accordance with a set o dulyadopted bylaws. The bylaws o a condominium association areincluded in the declaration o condominium, the provisions o whichare considered binding agreements that run with the land. Generally,condominium bylaws will not be invalidated unless their applicationis arbitrary, they are in violation o public policy, or they inringeupon a constitutional right. Where the bylaws empower the boardo directors o the association with discretionary authority, such asarchitectural review and approval, its action must be reasonablyrelated to the promotion o the health, happiness, and peace o mind o the unit owners. In addition, the courts have held thatwhere the decision to allow a particular use is within the discretion

o the board, the use must be allowed unless it can be demonstratedto be antagonistic to the legitimate objectives o the association.

A homeowners association is an organization consisting o property owners withina subdivision that has been granted or assumes certain powers and is in essenceresidential private government. Its authority and powers are contained in a variety o documents, including restrictive covenants and bylaws. Restrictive covenants are mutualagreements contained in deeds to real property. They are typically part o plannedcommunities and subdivisions where the developer has stipulated the architecturalorm and general scheme o construction in the community. These restrictions are notpersonal in nature but rather are considered to “run with the land.” That is, they areeective against all subsequent owners o the aected property.




The most requently ound restrictive covenants relating to the use o solar energyinclude restrictions on where collectors may be located (e.g., a place other than onthe ront o the house), those that require board-o-architect approval as a conditionprecedent to external structural alterations (such as the installation o the solar collectorsanywhere on the house), prohibitions against protrusions above roo level (televisionantennas are the usual subject o these restrictions but they can also aect roo-mountedsolar collectors), or an outright prohibition o solar systems.

Homeowner association bylaws oten contain the details as to how the powers o the

association will be exercised and will oten include the specics o the guidelines to beollowed by architectural review boards. Regarding the validity o homeowner associationbylaws, it has been suggested that the power o the association is without limit, althoughbasic consideration regarding the validity o use restrictions may still be relied upon.

Courts have long held restrictive covenants to be valid exceptions to the general principleagainst restraint on ree use o property. Judicial acceptance o restrictive covenants ispremised on the supposition that such recognition is not contrary to public policy orexpress law. The restriction must also be reasonable. A subdivision’s restrictive covenantthat eectively or directly prohibits the use o solar will not be upheld where state orlocal law expressly provides otherwise through a solar-rights statute or ordinance. I therestrictive covenant precedes the eective date o the statute or ordinance, the restrictionmay be invalidated by the court based on public policy considerations.

In the absence o a solar-rights law, it may still be possible or a homeowner to over-come a restrictive covenant that prohibits the use o solar energy. The deed thatconveyed the covenant may stipulate a time o expiration or the restriction. In addition,the owners subject to the restriction and the courts may terminate the restriction undercertain conditions.

Express termination

The restrictive covenant may specically include the time and conditions under whichit will no longer be eective. From a practical point o view, however, it is doubtul thata provision o this kind would be ound in a restriction against solar energy. Since themotivating rationale behind these restrictions is usually based on aesthetics, the doctrine

o “once an eyesore, always an eyesore” will usually make an express terminationdate unlikely. An alternative provision would stipulate the time or termination with aprovision or automatic extension upon landowner approval. In either case, provisionsdictating duration are valid and are consistent with the principle aording ree use andenjoyment o land.

Modifcation

A landowner who is subject to restrictive covenants may, by release or upon agreementwith the other owners within the subdivision, modiy the restrictions. The deed mayspeciy the manner by which the modication will be made, or example, by all or amajority o the aected owners. The developer may also exercise his or her right tomodiy the restrictions. However, agreement by the landowners to such modication isnecessary unless the developer expressly reserved the right to uture modications.

Modication o a restrictive covenant could eectively operate to remove restrictionsagainst the use o solar equipment. For example, where a restrictive covenant prohibitsalterations to the street-acing acades o homes in the subdivision, an exception couldbe provided when the alteration is a solar energy system. The exception could removeall restrictions against the use o solar energy or allow the use o solar energy, subjectto approval o an architectural review board. In either case, the restriction would still beeective against all rontal alterations except solar energy systems.



Cancellation

A court o competent jurisdiction may also act to terminate restrictive covenants. In acase in which a homeowner is violating a restriction, other parties to the covenant maysue to recover damages or breach o the covenant, or an injunction may be sought toenorce the restriction. The court may award damages or grant the injunction where itdetermines the activity is in act a violation o a valid restriction. The court may, on theother hand, determine the activity is not a violation and deny an award o damages orthe injunction. Or, the court may determine on the basis o “changed conditions” thatthe restriction is no longer valid and thus may order it cancelled. The latter instance is

another method o terminating restrictive covenants that prohibit solar and one that hasa good chance or success, given current energy policies avoring the use o solar energy.

There are armative deenses that can be raised in a situation in which the homeowneris taken to court by his association. Where other homeowners have acted in violation o the same restrictive covenant and the homeowners in the subdivision took no actionor approved o the action, the solar owner may allege a waiver or abandonment o the restriction.

For example, in a subdivision where solar collectors are prohibitedon the street-acing acade, yet one or more homeowners haveinstalled collectors on this acade without reprisal rom otherhomeowners, the court may deny any request or an injunctionagainst subsequent homeowners installing solar collectors on the

street-acing acade. Allowing collectors on the side-yard acingacades o the home that were, nonetheless, visible rom the streetmay not constitute a waiver or abandonment o the restriction.One could maintain an argument or abandonment in that theoverall eect is the same, that is, the introduction o a readily visiblenonconorming or unaesthetic element into the community. Wherework on an installation subject to the restriction has been allowed toprogress to the point or where an injunction would present an unduehardship to the deendant, an injunction may only be granted wherea nuisance has developed. The scope o the solar project would havean impact on the use o this deense. As in all equitable considerations, the benets andburdens o competing interests are weighed by the court in arriving at its decision.

Local ordinances

Cities and counties are authorized to adopt ordinances or a variety o purposes. Thistypically includes the authority to prepare and enorce comprehensive plans, zoningregulations and building codes and to adopt ordinances and resolutions necessary orthe exercise o its powers. Despite these broad grants o power or local sel-government,the local ordinance is still subject to judicial scrutiny. In addition to the requirement thatan act be one within the authority o the local government, it must be reasonable, equal,and impartial in its operation. However, there is a strong presumption o validity o alocal ordinance, since local ocials are in a better position than the courts are to haveknowledge o any local conditions upon which the ordinance is predicated.

In spite o the scope o authority o the local governing body, the principles aecting

the validity o its actions still provide several bases to void an anti-solar ordinance.The concepts o reasonableness, consistency and promoting the public interest willbe considered. The reasonableness o a local ordinance will be gauged in the contexto current events. What was reasonable in an era o inexpensive, plentiul ossil uelsupplies may no longer be considered reasonable given today’s energy policies thatencourage the use o renewable energy.

While there is authority indicating that land use restrictions may be based on aestheticconsiderations alone, the courts have generally held that building regulations basedsolely on aesthetic considerations cannot be supported under the police power or in theabsence o an actual nding o act that the restrictions bear a reasonable relation to thepublic welare. Given our current energy predicament, it would appear that restrictions




imposed on the use o solar energy devices would contravene rather than promote thepublic interest.

Where a state law prohibits a local government rom enacting an ordinance, whichdirectly or eectively prohibits the use o solar energy, the state law will take precedenceover the local ordinance. In the case o an ordinance that was in eect prior to the statelaw, the solar owner may still prevail by citing public policies that avor the use o solarenergy.

Analysis of State Solar Access LawsThirty-our states (and a handul o municipalities) have some kind o protection or solareasements or solar rights. That leaves 16 states that have no protection. Some o thestates lacking solar easements or solar rights laws are surprising, given the other pro-solar/renewable energy policies in the state (Connecticut, Illinois, Pennsylvania, Texas,Vermont, or example). However, even those states that do have solar easements or solarrights laws have enorcement issues that can render the laws ineective or subject toexpensive litigation to enorce. The preliminary review o state solar access and solarrights laws indicates a real need or simplied enorcement o the protection aordedby solar rights laws. In addition, the voluntary nature o solar easement statutes makesthem useless to property owners that have neighbors unwilling to provide the solar

easement.There are, however, some notable exceptions to this generalization, and the drat modelstatute will incorporate eatures o those states with good law.

Solar easement statutes

Solar easement statutes have very common elements, and virtually all are “voluntary,”meaning that a solar owner cannot require that their neighbor agree to a solar easementThe standard elements o a typical solar access law are that it must be in writing, berecorded (as any other real property interest), express the horizontal and vertical angleso the easement, include provisions relating to the grant or termination o the easement,and provide or any compensation arrangements to the grantor or maintaining the

easement or to the grantee in the event o intererence.Short o mandating solar easement, one approach used by a state includes a registrationprocess that allows a solar owner to register their solar system with the local governingbody—essentially putting their neighbors on notice that the solar system is in place.In that event, a solar owner can, in essence, impose a solar easement on the neighbor.This is a very unique and potentially eective solar access tool. There are also statesthat direct the local governing body to require a solar access element in subdivision ordevelopment plans submitted or their review and approval. While this is noteworthy, itwill only protect solar access in new construction.

Solar rights

There are essentially two models that have perpetuated over the last two-plus decadesthat attempt to protect the right o homeowners to install solar energy systems. Therst model addresses local government ordinances; the second model addresses privateland use restrictions, such as covenants, conditions, and restrictions in deeds, as well asdeclarations in condominiums documents. Some states address both.

The typical language o a statute that protects solar rights at the state or localgovernment level will contain language such as, “The adoption o an ordinance by agoverning body which prohibits or has the eect o prohibiting the installation o solarcollectors is expressly prohibited.” The typical language o a statute that protects solarrights in the context o private land use restrictions is, “Any covenant, restriction, or



condition contained in any deed, contract, security agreement, or other instrumentaecting the transer or sale o or any interest in real property which eectively prohibitsthe installation or use o a solar energy device is void and unenorceable.” Somestates distinguish their laws rom others by dening solar energy device, providing orprohibiting retroactive eect, dening “eectively prohibiting” (usually by assigning acost o compliance with a requirement). For the most part, the laws apply strictly toresidential buildings, including condominiums.

Typical cases

Previous work has identied some o the shortcomings o traditional solar access laws(Starrs, Nelson, & Zalcman, 1999). The lack o awareness and understanding o solarrights statutes is one o the biggest obstacles to enorcement. The lack o awareness byhomeowner associations and architectural review boards can lead to delays in processingapplications and lawsuits that are expensive to deend and cost all parties, regardlesso who prevails. Because, when a solar rights law awards the court costs and attorneyees to the prevailing party, and the homeowner is the prevailing party, they still end uppaying since all homeowners in the community bear the common expenses, such asattorney ees. The lack o understanding o solar rights laws by homeowners and solarcontractors can lead to missteps in the approval process. Most solar rights laws are notabsolute; they still require that the homeowner apply to the architectural review board

or approval, and the board has a degree o discretion in the approval process. Manyhomeowners and contractors believe that approval is not required and proceed with theinstallation without prior approval. This can lead to legal recourse by the associationthat has no bearing on the solar rights laws but rather pertain to the ailure to ollowassociation rules.

The ollowing cases are examples o real events and represent the range o scenarios thatoccur on a daily basis.

Case 1: A homeowner purchases a solar energy system. The contractor arrives onsite or installation. As neighbors notice the activity, they conront the homeownerand inquire as to the architectural review board’s approval. The neighbor cites thesolar rights law and says permission is not necessary. The association advises thehomeowner to cease and desist work and to restore the premises to its originalcondition and levies a ne or every day they are in violation.

Case 2: A homeowner purchases a solar energy system. Approval rom thearchitectural review board (ARB) is pending. The contractor applies or a permitrom the local building agency, which reuses to issue the permit until a copy o theARB approval is received. Alternately, the ARB requires a copy o the permit beoreapproval is granted. The building permit process is so cumbersome, the contractordoes not pull a permit, and ARB approval is denied.

Case 3: A homeowner considers purchase o a solar energy system. Deed restrictionsrequire that the system not be visible rom the street. The homeowner has a cornerlot, and the only area not visible rom the street aces north. The contractor devises areverse mount or the collectors and runs aoul o local wind and structural codes.

Case 4: A homeowner/condominium association owns the exterior o the residenceincluding the roo (common property). The request to install the solar energy systemis denied, as they ear the roo warranty being voided, and question the liability orany damage to common property.Case 5: A homeowner installs a solar energy system. A neighbor to the south has




several very mature trees that are creeping into the solar window. The homeownerasks the neighbor to trim the trees, but the neighbor reuses, arguing that the shadeo the trees reduces their air-conditioning load.

Case 6: A developer builds all homes in the community with a solar water heaterand photovoltaic system. The solar window requires that a tree protected by thelocal landscape ordinance be removed. The developer is required to purchase andreplant $20,000 trees to compensate or the removal o the protected tree.

These are just a handul o the cases, all o which occurred in states with solar rights andsolar access laws. The bottom line is that the law ailed to protect the solar owner or costthe solar owner more than the value o the solar energy system to secure that protection.

Exemplary Solar Access Laws

In the eort to develop a model solar access statute, we rst reviewed the current lawon point and critiqued the relative eectiveness o those laws, given the outcomes thatwere available, in terms o lawsuits, media coverage, and other resources that reportedpertinent disputes. Our review o the text o solar access laws in the United Statesreveals some excellent provisions that can be used to drat a model solar access statute.Our goal was to be able to resolve the typical case via the provisions o the model statute

In addition, the solar industry has developed model solar installation guidelines that canbe adopted by homeowner associations.

City o Gainesville, Florida

• Allows the removal o regulated (i.e., protected) trees, where they will prevent theinstallation o solar energy equipment (Statutory Reerence 1).

State o Hawaii

• Provides a very comprehensive list o instruments that are aected (covenant,declaration, bylaws, restriction, deed, lease, term, provision, condition, codicil,contract, or similar binding agreement, how ever worded) declaring that noperson shall be prevented by anyone rom installing a solar energy device on anysingle-amily residential dwelling or townhouse that the person owns, makingany provision in any lease, instrument, or contract contrary to the intent o thelaw void and unenorceable.

• Also provides that every private entity (meaning community association) adoptrules or the placement o solar collectors: “The rules shall acilitate theplacement o solar energy devices and shall not unduly or unreasonably restrictthat placement so as to render the device more than twenty-ve percent lessecient or to increase the cost o the device by more than teen percent.”

• Spells out the relative risks and responsibilities, when installing solar energyequipment on common property (Statutory Reerence 2).

State o Massachusetts• Provides or, among other things, a solar easement as well as a solar

access permit.• Voids restrictions against use o solar energy.• Provides or solar access guidelines in subdivision regulation.• Also provides or solar access in zoning ordinances, including the regulation o

planting and trimming o vegetation on public property to protect solar access onpublic and private solar energy systems.

• Solar access permit language is novel and provides an excellent model:



Zoning ordinances or bylaws may also provide or special permits to protectaccess to direct sunlight or solar energy systems. Such ordinances or bylawsmay provide that such solar access permits would create an easement tosunlight over neighboring property. Such ordinances or bylaws may also speciywhat constitutes an impermissible intererence with the right to direct sunlightgranted by a solar access permit and how to regulate growing vegetation thatmay interere with such right. Such ordinances or bylaws may urther providestandards or the issuance o solar access permits, balancing the need o solar

energy systems or direct sunlight with the right o neighboring property owners

to the reasonable use o their property within other zoning restrictions. Suchordinances or bylaws may also provide a process or issuance o solar accesspermits including, but not limited to, notication o aected neighboring propertyowners, opportunity or a hearing, appeal process and recordation o such permitson burdened and beneted property deeds. Such ordinances or bylaws mayurther provide or establishment o a solar map identiying all local propertiesburdened or beneted by solar access permits. Such ordinances or bylaws mayalso require the examination o such solar maps by the appropriate ocial priorto the issuance o a building permit (Statutory Reerence 3).

State o New Jersey

• While this law’s prohibition against deed restrictions that prohibit solar energyis airly typical, it provides or enorcement o the law by the state’s Departmento Community Aairs, which hopes to avoid the need or expensive litigation(Statutory Reerence 4).

State o New Mexico

• Provides that a homeowner can record ownership o a solar energy systemand allows the owner to establish a solar easement: “A solar right may beclaimed by an owner o real property upon which a solar collector…hasbeen placed. Once vested, the right shall be enorceable against any personwho constructs or plans to construct any structure, in violation o the terms o the

Solar Rights Act…or the Solar Recordation Act… A solar right shall be consideredan easement appurtenant, and a suit to enorce a solar right may be brought atlaw or in equity” (Statutory Reerence 5).

City o Ashland, Oregon

• Establishes a procedure or a obtaining a solar access permit to protect a solarenergy system rom vegetation that would shade the collector.

• Provides or recording the easement.• This detailed ordinance provides a level o protection that a voluntary solar

easement does not. The procedures or obtaining the permit are comprehensiveand protect the interests o all parties involved (Statutory Reerence 6).

Virgin Islands

• Provides that deed restrictions (and other instruments) that prohibit the use o solar and wind energy are void and unenorceable.

• Also provides or a greater height restriction or solar and wind energy devicesand provides or the dedication o solar easements as a condition o subdivisionapproval (Statutory Reerence 7).




State o Wisconsin

• Provides local governments with the authority to enact an ordinance to requirethe trimming o vegetation that blocks solar energy equipment.

• Also, provides that restriction against the use o solar or wind energy are void(Statutory Reerence 8).

Recommendations

Given the act that many o the current laws that purport to protect solar access areineective or too expensive to enorce, every state should examine its practices andconsider amending them to conorm to the model statute. At the state level, the adoptiono the model statute that addresses state and local practices on use o solar energyequipment is recommended. The model statute should include prescriptive measures—such as community design, solar easements, as well as prohibitive measures, such asmeasures restricting the use o solar energy.

At the local level, it is recommended that the ocus be on implementation andenorcement o state law, requirement that site-plan review and approval include anelement to address the current and uture use o solar energy (such as solar easements,landscaping, building height restriction, and orientation).

The key to the useulness o a solar access law is enorcement. It is imperative thata specic entity be charged with oversight o the statute. These responsibilities mustinclude responding to consumer and community association inquiries, confictresolution, and the authority to impose penalties or violation o the statute.

Through strategic partnerships with the League o Cities, Association o Counties, andthe Community Association Institute, education and awareness o solar access laws canproactively avoid disputes among neighbors. It is urther recommended that partneringwith these entities be explored to expand the outreach o this eort.

Components of Solar Access Legislation

Elements of a Solar Rights and Access Law

1. Preamblea. Public Purpose (needed to assure constitutionality) b. Policy Statement in Support o Solar Energy (needed to allow or retroactive

eect and overcome constitutional challenge)c. Legislative Intent (or example

i. Energy securityii. Cost o energyiii. Green House Gas reduction strategyiv. Economic developmentv. Fossil uel osetvi. Renewable Portolio Standardvii. Other

2.Denitionsa. Solar Energy Device (active and passive) b. Other renewable measures (wind, geothermal, etc)c. Buildings included (residential, commercial, multi-amily, condominium)d. Other



3. Applicationa. CCRs b. Solar contractc. Condominium declarationsd. Ordinancese. Enorcement

i. Litigationii. Prevailing party legal ee awardiii. Penaltiesiv. Code enorcement

4. Where the law should be codieda. Constitutional amendment b. Municipal law sectionc. Building code sectiond. Condominium regulation sectione. Homeowner association section




MODEL STATUTE/ORDINANCE TO ENCOURAGE

ACCESS TO SOLAR ENERGY

STATE/CITY/COUNTY __________________________________________________________

CHAPTER/SECTION NO. _______________________________________________________

A LAW PROVIDING FOR SOLAR EASEMENTS; INVALIDATING PUBLIC AND PRIVATERESTRICTIONS RESTRICTING THE USE OF SOLAR ENERGY SYTEMS; ESTABLISHINGGUIDELINES FOR THE INSTALLATION OF SOLAR ENERGY SYSTEMS, INCLUDINGSTANDARDS AND PERMIT REQUIREMENTS; PROVIDING FOR CERTIFICATION OFINSTALLERS OF SOLAR ENERGY SYSTEMS; PROVIDING FOR ENFORCEMENT ANDPENALTIES; SUPERSEDING ALL LAWS IN CONFLICT OR INCONSISTENT HEREWITH;PROVIDING AN EFFECTIVE DATE.

WHEREAS, the State/City/County o _________________________ wishes to advance theuse o solar energy by all o its citizens, businesses and industries; and,

WHEREAS, the State/City/County o ___________________has determined that publicand private land use and property restrictions can impair the ability o our citizens,businesses and industries to install said systems; and,

WHEREAS, properly designed land use standards can prepare communities or greateraccess to solar energy; and,

WHEREAS, the installation o solar energy systems according to established guidelinesby properly trained and certied personnel is essential to the sae and ecient operationo said systems;

[ADD OTHER STATE SPECIFIC POLICIES THAT MIGHT BE CITED HERE]

NOW, THEREFORE, it is in the interest o the health, welare and saety o the people o __________________ to provide the inrastructure to assure the eective deployment o solar technology.

NOW, BE ENACTED BY THE STATE OF ______________________________ ORNOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF CITY/COUNTYCOMMISSIONERS OF ____________________________ _______________________, that:

(City/County) (State) This Section Is Intended to be Interactive among Stakeholders to Explore the Optionsand Get Feedback rom States/Cities with Best Practices as Identied in the ExemplaryLaw Section.

Section 1. Defnitions

“Solar Energy Device” (active and passive): (Florida model) Solar energy devicemeans the equipment and requisite hardware that provide and are used or collecting,transerring, converting, storing, or using incident solar energy or water heating, spaceheating, cooling, generating electricity, or other applications that would otherwise requirethe use o a conventional source o energy such as petroleum products, natural gas,manuactured gas, or electricity produced rom a nonrenewable resource.

“Other renewable measures” - [Each jurisdiction needs to evaluate their renewableenergy resources to determine which technologies to include in the statute.]



Section 2. Solar Easements

(Massachusetts model, others to consider: New Jersey and New Mexico, City o Ashland)

A. An easement o direct sunlight may be acquired over the land o another by expressgrant or covenant, or by a solar access permit as set orth in section 2. Any instrumentcreating a solar easement may include, but the contents are not limited to, all o theollowing:

(1) A description o the dimensions o the easement expressed in measurable

terms, such as vertical or horizontal angles measured in degrees, or the hourso the day on specied dates during which direct sunlight to a specied suraceo a solar collector, device, or structural design eature may not be obstructed,or a combination o these descriptions.

(2) The restrictions placed upon vegetation, structures, and other objects whichwould impair or obstruct the passage o sunlight through the easement.

(3) The amount, i any, o permissible obstruction o the passage o sunlightthrough the easement, expressed in measurable terms, such as a specicpercentage o sunlight that may be obstructed.

(4) The provisions or trimming vegetation that would impermissibly obstruct thepassage o sunlight through the easement including any compensation ortrimming expenses.

(5) Any provisions or compensation o the owner o property beneting rom theeasement in the event o impermissible obstruction o the easement.

(6) The terms or conditions, i any, under which the easement may be revised orterminated.

Any instrument creating a solar easement shall be recorded in the registry o deeds inthe county or district or, in the case o registered land, in the registry district o the landcourt in which the land aected is situated.

B. Zoning ordinances or community association bylaws may provide or special permitsto protect access to direct sunlight or solar energy systems. Such ordinances orbylaws may provide that such solar access permits create an easement to sunlight overneighboring property. Such ordinances or bylaws may also speciy what constitutes animpermissible intererence with the right to direct sunlight granted by a solar accesspermit and how to regulate growing vegetation that may interere with such right. Suchordinances or bylaws may urther provide standards or the issuance o solar accesspermits balancing the need o solar energy systems or direct sunlight with the right o neighboring property owners to the reasonable use o their property within other zoningrestrictions. Such ordinances or bylaws may also provide a process or issuance o solaraccess permits including, but not limited to, notication o aected neighboring propertyowners, opportunity or a hearing, appeal process and recordation o such permits on

burdened and beneted property deeds. Such ordinances or bylaws may urther provideor establishment o a solar map identiying all local properties burdened or benetedby solar access permits. Such ordinances or bylaws may also require the examination o such solar maps by the appropriate ocial prior to the issuance o a building permit.




Section 3. Solar Rights

(Massachusetts model, others to consider: Hawaii and Wisconsin)

Solar energy systems; installation or use; restrictive provisionsAny provision in an instrument relative to the ownership or use o real property whichpurports to orbid or unreasonably restrict the installation or use o a solar energy systemor the building o structures that acilitate the collection o solar energy shall be void.A community association shall not adopt and shall not enorce any rule related to theinstallation or maintenance o solar collectors, i compliance with a rule or rules would

increase the solar collectors’ installation or maintenance costs by an amount which isestimated to be greater than 10 percent o the total cost o the initial installation o thesolar collectors, including the costs o labor and equipment. A community associationshall not adopt and shall not enorce any rule related to the installation or maintenanceo solar collectors, i compliance with such rules inhibits the solar collectors romunctioning at their intended maximum eciency. The [Agency] shall enorce theprovisions o this law in accordance with the authority granted under [section x].

Section 4. Local Ordinances

(Massachusetts model, Florida provision)

A. Zoning ordinances or bylaws adopted or amended pursuant to section ve o

this chapter may encourage the use o solar energy systems and protect solaraccess by regulation o the orientation o streets, lots and buildings, maximumbuilding height limits, minimum building set back requirements, limitations onthe type, height and placement o vegetation and other provisions. Zoningordinances or bylaws may also establish buer zones and additional districtsthat protect solar access which overlap existing zoning districts. Zoningordinances or bylaws may urther regulate the planting and trimming o vegetation on public property to protect the solar access o private and publicsolar energy systems and buildings. Solar energy systems may be exemptedrom set back, building height, and roo and lot coverage restrictions.

B. Notwithstanding any provision o general or special law, the adoption o anordinance by a city or county which prohibits or has the eect o prohibitingthe installation o solar energy systems [or other device based on renewableresources] is expressly prohibited.



References

Boyd v. McDonald. 408 P.2d 717. (1965).

Caton, D., & Kettles, CM (1980). Solar Law, Vol 4, No. 77, Florida Municipal Record.

Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So.2d 357 (1959), cert.denied 117 So.2d 842.

Kramer, SE (1978). Solar Law. Colorado Springs, CO, Shepards, Inc.United States v. Causby, 328 U.S. 256, 66 S.1. 1062 (1946).

Sacramento and San Joaquin Drainage District v. Reed, 215 Cal. App. 2d 60 (1963)

T. Starrs, L. Nelson, and F. Zalcman, (1999). Bringing Solar Energy to the Planned

Community: A Handbook on Rootop Solar Systems and Private Land Use

Restrictions (Contract Number: DE – FG01 – 99EE10704), U.S. Department o Energy, Oce o Scientic and Technical Inormation: Oak Ridge, TN.

UK Statute Law Database, Oce o Public Sector Inormation, United Kingdom.




APPENDIX

Statutory References

1. CITY OF GAINESVILLE, FLORIDA

§30-254. Permits or tree removal.(e) Permit approval criteria. Removal or relocation o regulated trees shall be approvedby the city manager or designee upon a nding that the trees pose a saety hazard; havebeen weakened by disease, age, storm, re or other injury; or prevent the reasonable

development o the site, including the installation o solar energy equipment. Regulatedtrees shall not be removed, damaged or relocated or the purpose o locating utility linesand connections unless no reasonably practical alternative as determined by the citymanager or designee is available.

2. STATE OF HAWAII

§196-7 Placement o solar energy devices.(a) Notwithstanding any law to the contrary, no person shall be prevented by any

covenant, declaration, bylaws, restriction, deed, lease, term, provision, condition,codicil, contract, or similar binding agreement, however worded, rom installing asolar energy device on any single-amily residential dwelling or townhouse that theperson owns. Any provision in any lease, instrument, or contract contrary to the

intent o this section shall be void and unenorceable.(b) Every private entity shall adopt rules by December 31, 2006, that provide or the

placement o solar energy devices. The rules shall acilitate the placement o solarenergy devices and shall not unduly or unreasonably restrict that placement so asto render the device more than twenty-ve per cent less ecient or to increase thecost o the device by more than teen per cent. No private entity shall assess orcharge any homeowner any ees or the placement o any solar energy device.

(c) Any person may place a solar energy device on any single-amily residentialdwelling or townhouse unit owned by that person, provided that:

(1) The device is in compliance with the rules and specicationsadopted pursuant to subsection (b);

(2) The device is registered with the private entity o record withinthirty days o installation; and

(3) I the device is placed on a common element or limited commonelement as dened by a project’s declaration, the homeowner shallrst obtain the consent o the private entity; provided urther thatsuch consent shall be given i the homeowner agrees in writing to:

(A) Comply with the private entity’s design specication or theinstallation o the device;

(B) Engage a duly licensed contractor to install the device; and

(C) Within ourteen days o approval o the solar device by the

private entity, provide a certicate o insurance naming theprivate entity as an additional insured on the homeowner’sinsurance policy.

(d) I a solar energy device is placed on a common element or limited common element

(1) The owner and each successive owner o the single-amily residentialdwelling or townhouse unit on which the device is placed shall beresponsible or any costs or damages to the device, the commonelements, limited common elements, and any adjacent units, arising orresulting rom the installation, maintenance, repair, removal, or



replacement o the device. The repair, maintenance, removal, andreplacement responsibilities shall be assumed by each successiveowner until the solar energy device has been removed rom the commonelements or limited common elements. The owner and each successiveowner shall at all times have and maintain a policy o insurance coveringthe obligations o the owner under this paragraph and shall name theprivate entity as an additional insured under said policy; and

(2) The owner and any successive owner o the single-amily residential

dwelling or townhouse unit on which the device is placed shall beresponsible or removing the solar energy device i reasonably necessaryor convenient or the repair, maintenance, or replacement o thecommon elements or limited common elements.

(e) I a material or labor roo warranty exists at the time a solar energy device isinstalled on a roo that is a common element or limited common element, thehomeowner shall obtain conrmation in writing rom the company that issuedthe warranty that the installation o the solar energy device will not void the roo warranty. The homeowner shall provide the private entity with a copy o theconrmation.

() For the purposes o this section:

“Private entity” means any association o homeowners, community association,condominium association, cooperative, or any other non-governmental entity withcovenants, bylaws, and administrative provisions with which the homeowner’scompliance is required.

“Solar energy device” means any identiable acility, equipment, apparatus, or thelike, including a photovoltaic cell application, that is applicable to a single-amilyresidential dwelling or townhouse and makes use o solar energy or heating,cooling, or reducing the use o other types o energy dependent upon ossil uelor generation; provided that “solar energy device” shall not include skylights orwindows. [L 1992, c 268, §1; am L 2005, c 157, §2]

3. STATE OF MASSACHUSETTSCHAPTER 187. EASEMENTSChapter 187: Section 1A. Solar easements

Section 1A. An easement o direct sunlight may be acquired over the land o anotherby express grant or covenant, or by a solar access permit as set orth in section 9B o chapter 40A.

Any instrument creating a solar easement may include, but the contents are not limitedto, all o the ollowing:

(1) A description o the dimensions o the easement expressed in measurable terms,such as vertical or horizontal angles measured in degrees, or the hours o the day on

specied dates during which direct sunlight to a specied surace o a solar collector,device, or structural design eature may not be obstructed, or a combination o thesedescriptions.

(2) The restrictions placed upon vegetation, structures, and other objects which wouldimpair or obstruct the passage o sunlight through the easement.

(3) The amount, i any, o permissible obstruction o the passage o sunlight through theeasement, expressed in measurable terms, such as a specic percentage o sunlight thatmay be obstructed.




(4) The provisions or trimming vegetation that would impermissibly obstruct thepassage o sunlight through the easement including any compensation or trimmingexpenses.

(5) Any provisions or compensation o the owner o property beneting rom theeasement in the event o impermissible obstruction o the easement.

(6) The terms or conditions, i any, under which the easement may be revised orterminated.

Any instrument creating a solar easement shall be recorded in the registry o deeds inthe county or district or, in the case o registered land, in the registry district o the landcourt in which the land aected is situated.

Chapter 184: Section 23C. Solar energy systems; installation or use; restrictive provisions

Section 23C. Any provision in an instrument relative to the ownership or use o realproperty which purports to orbid or unreasonably restrict the installation or use o asolar energy system as dened in section one A o chapter orty A or the building o structures that acilitate the collection o solar energy shall be void.

Chapter 40A: Section 1A. Denitions

Section 1A. As used in this chapter the ollowing words shall have the ollowingmeanings:

Permit granting authority: the board o appeals or zoning administrator.

Solar access: the access o a solar energy system to direct sunlight.

Solar energy system: a device or structural design eature, a substantial purpose o whichis to provide daylight or interior lighting or provide or the collection, storage anddistribution o solar energy or space heating or cooling, electricity generating, or waterheating.

Special permit granting authority: the board o selectmen, city council, board o appeals,

planning board, or zoning administrators as designated by zoning ordinance or bylaw orthe issuance o special permits.

Zoning: ordinances and bylaws adopted by cities and towns to regulate the use o land,buildings and structures to the ull extent o the independent constitutional powers o cities and towns to protect the health, saety and general welare o their present anduture inhabitants.

Zoning administrator: a person designated by the board o appeals pursuant to section 13to assume certain duties o said board.

Chapter 40A, Section 9B: Solar access

Section 9B. Zoning ordinances or bylaws adopted or amended pursuant to section veo this chapter may encourage the use o solar energy systems and protect solar accessby regulation o the orientation o streets, lots and buildings, maximum building heightlimits, minimum building set back requirements, limitations on the type, height andplacement o vegetation and other provisions. Zoning ordinances or bylaws may alsoestablish buer zones and additional districts that protect solar access which overlapexisting zoning districts. Zoning ordinances or bylaws may urther regulate the plantingand trimming o vegetation on public property to protect the solar access o private andpublic solar energy systems and buildings. Solar energy systems may be exempted romset back, building height, and roo and lot coverage restrictions.



Zoning ordinances or bylaws may also provide or special permits to protect accessto direct sunlight or solar energy systems. Such ordinances or bylaws may providethat such solar access permits would create an easement to sunlight over neighboringproperty. Such ordinances or bylaws may also speciy what constitutes an impermissibleintererence with the right to direct sunlight granted by a solar access permit and howto regulate growing vegetation that may interere with such right. Such ordinances orbylaws may urther provide standards or the issuance o solar access permits balancingthe need o solar energy systems or direct sunlight with the right o neighboringproperty owners to the reasonable use o their property within other zoning restrictions.Such ordinances or bylaws may also provide a process or issuance o solar accesspermits including, but not limited to, notication o aected neighboring propertyowners, opportunity or a hearing, appeal process and recordation o such permits onburdened and beneted property deeds. Such ordinances or bylaws may urther provideor establishment o a solar map identiying all local properties burdened or benetedby solar access permits. Such ordinances or bylaws may also require the examination o such solar maps by the appropriate ocial prior to the issuance o a building permit.

4. STATE OF NEW JERSEY

§ 45:22A-48.2. Solar collectors on certain roos, homeowners’ associationauthority limited

a. An association ormed or the management o commonly-owned elements andacilities, regardless o whether organized pursuant to section 1 o P.L.1993, c.30(C.45:22A-43), shall not adopt or enorce a restriction, covenant, bylaw, rule or regulationprohibiting the installation o solar collectors on certain roos o dwelling units, as ollows:

A roo o a single amily dwelling unit which is solely owned by anindividual or individuals, and which is not designated as a commonelement or common property in the governing documents o anassociation; andA roo o a townhouse dwelling unit, which or the purposes o thissubsection means any single-amily dwelling unit constructed withattached walls to another such unit on at least one side, which unit

extends rom the oundation to the roo, and has at least two sides whichare unattached to any other building, and the repair o the roo or thetownhouse dwelling unit is designated as the responsibility o the ownerand not the association in the governing documents.

b. An association may adopt rules to regulate the installation and maintenance o solarcollectors on those roos as specied in subsection a. o this section, in accordance withsubsection c. o this section, and as ollows:

(1) The qualications, certication and insurance requirements o personnel orcontractors who may install the solar collectors;

(2) The location where solar collectors may be placed on roos;

(3) The concealment o solar collectors’ supportive structures, xtures and piping;

(4) The color harmonization o solar collectors with the colors o structures orlandscaping in the development; and

(5) The aggregate size or coverage or total number o solar collectors, provided that theprovisions o paragraph (2) o subsection c. below are met.





(Description either by metes and bounds, i in a platted subdivision, by lot and blocksubdivision name, by middle Rio Grande conservancy district tract number or otheradequate legal description.)

The ollowing named persons have each received notication by certied mail evidencedby a return receipt signed by the named person, or i the address o any person wasnot known and could not be ascertained by reasonable diligence, or i a return receiptsigned by the named person could not be obtained, then notication to that person shallbe made by publication o a copy o this declaration, with the intended date o ling, at

least once a week or two consecutive weeks in a newspaper o general circulation in thecounty in which the property or which the solar right is being claimed is located, the lastpublication o which was no less than ten days prior to the ling o this declaration:(A listing o the names o the holders as shown in the records o the county clerk o anyinterest in property burdened by a claimed solar right, including owners, mortgagors,mortgagees, lessors, lessees, contract purchasers and contract owners or sellers, anda description, either by metes and bounds i in a platted subdivision, by lot and blockand subdivision name, by middle Rio Grande conservancy district tract number or otheradequate legal description, o that burdened property.)

The claimant has placed improvements on the land in the orm o a solar collector,as shown by the attached survey or plot plan setting orth distances rom lot lines

and height rom ground level o all solar collectors entitled to be recorded under theprovisions o the Solar Recordation Act … and setting orth the maximum height o atheoretical ence located at the property lines o the property on which the solar collectoris located which will not interere with the solar easement.

Notice is hereby given that by virtue o the Solar Recordation Act, the holders o anyinterest in property described above as having been mailed notice must record adeclaration, with the county clerk in each county in which solar right recordation hasbeen led, contesting the claimed solar right within sixty days, or the solar right shallbe ully vested. Witness [Name o person]set his hand and seal this ________ day o ________, [year][Document must be notarized].

B. Any person desiring to claim a solar right must record that right and give noticeto aected property owners as provided in the Solar Recordation Act as a necessarycondition precedent to enorcing a solar right. Failure to so record and give notice shallconstitute a jurisdictional deect and deprive any court o subject matter jurisdiction toenorce the solar right. However, nothing in this subsection shall apply to any solar right,lease, easement or contract right which has vested prior to the eective date o thissubsection.

C. Any person who receives notice o the recordation may, within sixty days aterreceiving notice, le a declaration contesting the right, in the same manner and at thesame place as the recordation was led. I a declaration is led contesting the claimed

solar right, then the solar right shall not be enorceable against the property coveredby the declaration unless agreed to by contract or ordered by a court o competent

jurisdiction, and any claim o a solar right shall expire one year rom the date o declaration unless the parties agree by contract to settle the solar rights dispute or unlesscourt action has commenced by that date to establish the claim o the solar right.

47-3-10: transerUnless the document o conveyance otherwise species, upon the transer o any realtyon which a solar right exists or upon the transer o any realty beneted by a leddeclaration contesting a solar right, that solar right or declaration contesting the solar




right shall be transerred with the realty and shall be enorceable by the vendee in thesame manner and to the same extent to which it was enorceable by the vendor. Asolar right is appurtenant to the real property upon which the solar collector is situated.Nothing in this section shall be construed to prevent a person rom agreeing to relinquisha solar right or a potential solar right. Nothing in this section shall aect any transer o solar rights made prior to the eective date o the Solar Recordation Act … pursuantto Paragraph (3) o Subsection B o Section 47-3-4 NMSA 1978 or any local solar rightsordinance.

47-3-11: local authorityA. Notwithstanding any other provisions o the Solar Recordation Act or the Solar RightsAct, the governing body o a county or municipality may by ordinance regulate in wholeor in part the claiming o solar rights in accordance with its powers to regulate zoning,planning and platting, and subdivisions; except that any solar right claimed pursuant tosuch local ordinance shall vest with respect to any property beneted or burdened bythe solar right only ater recordation as provided in Section 4 [47-3-9 NMSA 1978] o theSolar Recordation Act. Such local regulation shall not aect any solar right vested beorethe eective date o such ordinance, nor shall the local regulation aect any solar rightstranser, which vested prior to the eective date o such ordinance. In the absence o thelocal regulation o solar rights, the ollowing principles shall apply in addition to those setorth in the Solar Rights Act. I the property burdened by a solar right has or could haveimprovements constructed to a maximum height o twenty-our eet, then the solar rightshall be limited, as to that burdened property, to protecting an unobstructed line-o-sightpath rom the solar collector to the sun only as to obstructions located on the burdenedproperty, which cast a shadow greater than the shadow cast by a hypothetical ence teneet in height located on the property line o the property on which the solar collectoris located. I the property burdened by a solar right has or could have improvementsconstructed in excess o twenty-our eet in height, but no greater than thirty-six eet,then the solar right shall be limited, as to that burdened property, to protecting anunobstructed line-o-sight path rom the solar collector to the sun only as to obstructionslocated on the burdened property, which cast a shadow greater than the shadow cast bya hypothetical ence teen eet in height located on the property line o the property

on which the solar collector is located. No solar right shall be obtained against property,which has or could have improvements constructed in excess o thirty-six eet in heightunless so provided in a local ordinance or agreed to by contract. Unless otherwiseprovided by contract or local ordinance, a person may allow vegetation to grow orconstruct or plan to construct any improvement which obstructs the protected solarright so long as such obstruction does not block more than ten percent o the collectiblesolar energy between the hours o 9:00 a.m. and 3:00 p.m. Unless otherwise provided bycontract or local ordinance, solar rights shall be protected between 9:00 a.m. and 3:00 p.m.

B. Nothing in the Solar Recordation Act shall be construed to limit any county ormunicipal ordinances concerning solar rights in eect prior to the eective date o thissection.

47-3-12: indexingA declaration led pursuant to Section 4 [47-3-9 NMSA 1978] o the Solar RecordationAct shall be indexed by the county clerk in the grantees index under the names o thepersons receiving notice in the declaration and in the grantors index under the name o the person ling the declaration.

6. CITY OF ASHLAND, OREGON

18.70 Solar Access18.70.010 Purpose and IntentThe purpose o the Solar Access Chapter is to provide protection o a reasonable amounto sunlight rom shade rom structures and vegetation whenever easible to all parcels



in the City to preserve the economic value o solar radiation alling on structures,investments in solar energy systems, and the options or uture uses o solar energy.18.70.020 Denitions

A. Exempt Vegetation: All vegetation over teen (15) eet in height at the time a solaraccess permit is applied or.

B. Highest Shade Producing Point : The point o a structure which casts the longest shadowbeyond the northern property boundary at noon on December 21st.

C. Natural Grade: The elevation o the natural ground surace in its natural state, beoreman-made alterations. The natural ground surace is the ground surace in its originalstate, beore any grading, excavation, or lling.

D. Northern Lot Line: Any lot line or lines less than orty-ve (45) degrees southeast orsouthwest o a line drawn east-west and intersecting the northernmost point o the lot. I the northern lot line adjoins any unbuildable area (e.g., street, alley, public right-o-way,parking lot, or common area) other than a required yard area, the northern lot line shallbe that portion o the northerly edge o the unbuildable area which is due north rom theactual northern edge o the applicant’s property.

E. North-South Lot Dimension: The average distance in eet between lines rom thecorners o the northern lot line south to a line drawn east-west and intersecting thesouthernmost point o the lot.

F. Solar Energy System: Any device or combination o devices or elements which relyupon direct sunlight as an energy source, including but not limited to any substance ordevice which collects sunlight or use in the heating or cooling o a structure or building,the heating or pumping o water, or the generation o electricity. A solar energy systemmay be used or purposes in addition to the collection o solar energy. These usesinclude, but are not limited to, serving as a structural member o part o the roo o abuilding or structure and serving as a window or wall.

G. Solar Envelope: A three dimensional surace which covers a lot and shows, at anypoint, the maximum height o a permitted structure which protects the solar access o the parcel(s) to the north.

H. Solar Heating Hours: The hours and dates during which solar access is protected bya solar access permit, not to exceed those hours and dates when the sun is lower thantwenty-our (24) degrees altitude and greater than seventy (70) degrees east and west o true south.

I. Solar Access Permit Height Limitations: The height limitations on aected properties

required by the provisions o a Solar Access Permit displayed as a series o ve (5) ootcontour lines which begin at the bottom edge o the solar energy system protected bythe permit, rise at an angle to the south not less than twenty-our (24) degrees rom thehorizon, and extend at an angle not greater than seventy (70) degrees to the east andwest o true south and run parallel to the solar energy system.

J. Solar Setback: The minimum distance that a structure, or any part thereo, can belocated rom a property boundary.

K. Slope:A vertical change in elevation divided by the horizontal distance o the verticalchange. Slope is measured along lines extending one hundred ty (150) eet north rom




the end points o a line drawn parallel to the northern lot line through the midpoint o the north-south lot dimension. North acing slopes will have negative (-) values and southacing slopes will have positive (+) values.

L. Sun chart : Photographs or drawings, taken in accordance with the guidelines o theSta Advisor, which plot the position o the sun during solar heating hours. The sun chartshall contain at a minimum the southern skyline as seen through a grid which plots solaraltitude or a orty-two (42) degree northern latitude in ten (10) degree increments andsolar azimuth measured rom true south in teen (15) degree increments. I the solar

energy system is less than twenty (20) eet wide, a minimum o one (1) sun chart shallbe taken rom the bottom edge o the center o the solar energy system. I the solarenergy system is greater than twenty (20) eet wide, a minimum o two (2) sun chartsshall be taken, one (1) rom the bottom edge o each end o the solar energy system.

18.70.030 Lot ClassicationsAected Properties. All lots shall meet the provisions o this Section and will be classiedaccording to the ollowing ormulas and table:

FORMULA I:Minimum N/S lot dimension or Formula I = 30’ 0.445 + S Where: S is the decimalvalue o slope, as dened in this Chapter.

FORMULA II:Minimum N/S lot dimension or Formula II = 10’ 0.445 + S Lots whose north-south lotdimension exceeds that calculated by Formula I shall be required to meet the setback inSection (A), below.

Those lots whose north-south lot dimension is less than that calculated by Formula I,but greater than that calculated by Formula II, shall be required to meet the setback inSection (B), below.

Those lots whose north-south lot dimension is less than that calculated by Formula IIshall be required to meet the setback in Section (C), below.

18.70.040 Solar Setbacks

A. Setback Standard A. This setback is designed to insure that shadows are no greaterthan six (6) eet at the north property line. Buildings on lots which are classied asStandard A, and zoned or residential uses, shall be set back rom the northern lot lineaccording to the ollowing ormula:SSB = H - 6’0.445 + SWHERE:SSB = the minimum distance in eet that the tallest shadow producing point whichcreates the longest shadow onto the northerly property must be set back rom thenorthern property line.H = the height in eet o the highest shade producing point o the structure which casts

the longest shadow beyond the northern property line.S = the slope o the lot, as dened in this Chapter.

B. Setback Standard B. This setback is designed to insure that shadows are no greaterthan sixteen (16) eet at the north property line.Buildings or lots which are classied as Standard B or or any lot zoned C-1, E-1 or M-1,or or any lot not abutting a residential zone to the north, shall be set back rom thenorthern lot line as set orth in the ollowing ormula:SSB = H - 16’0.445 + S



C. Setback Standard C. This setback is designed to insure that shadows are no greaterthan twenty-one (21) eet at the north property line.Buildings or lots in any zone whose north/south lot dimension is less than Standard Bshall meet the setback set orth in the ollowing ormula:SSB = H - 21’0.445 + S

D. Exempt Lots. Any lot with a slope o greater than thirty percent (30%) in a northerlydirection, as dened by this Ordinance, shall be exempt rom the eects o the Solar

Setback Section.E. Lots Aected By Solar Envelopes. All structures on a lot aected by a solar envelopeshall comply with the height requirements o the solar envelope.

F. Exempt Structures.

1. Existing Shade Conditions. I an existing structure or topographical eaturecasts a shadow at the northern lot line at noon on December 21, that is greaterthan the shadow allowed by the requirements o this Section, a structure on thatlot may cast a shadow at noon on December 21, that is not higher or wider at thenorthern lot line than the shadow cast by the existing structure or topographicaleature. This Section does not apply to shade caused by vegetation.2. Actual Shadow Height. I the applicant demonstrates that the actual shadowwhich would be cast by the proposed structure at noon on December 21, isno higher than that allowed or that lot by the provisions o this Section, thestructure shall be approved. Reer to Table D or actual shadow lengths.

18.70.050 Solar Access Perormance StandardA. Assignment o Solar Factor. All land divisions which create new lots shall be designedto permit the location o a twenty-one (21) oot high structure with a setback which doesnot exceed ty (50%) percent o the lot’s north-south lot dimension. Lots having northacing (negative) slopes o less than teen percent (15%) (e.g., 10%), and which arezoned or residential uses, shall have a north-south lot dimension equal to or greater thanthat calculated by using Formula I. Lots having north acing (negative) slopes equal to

or greater than teen percent (15%) (e.g., 20%), or are zoned or non-residential uses,shall have a north-south lot dimension equal to or greater than that calculated by usingFormula II.

B. Solar Envelope. I the applicant chooses not to design a lot so that it meets thestandards set orth in (A) above, a Solar Envelope shall be used to dene the heightrequirements which will protect the applicable Solar Access Standard. The SolarEnvelope, and written description o its eects, shall be led with the land partition orsubdivision plat or the lot(s).

18.70.060 VariancesA. Variances to this Chapter shall be processed as a Type I procedure, except thatvariances granted under subsection B o this Section may be processed as a Sta Permit.

(Ord. 2484 S3, 1988)B. A variance may be granted with the ollowing ndings being the sole acts consideredby the Sta Advisor:

1. That the owner or owners o all property to be shaded, sign and record with theCounty Clerk on the aected properties’ deed, a release orm supplied by the City, whichcontains the ollowing inormation:

a. The signatures o all owners or registered leaseholders who hold an interest in theproperty in question.

b. A statement that the waiver applies only to the specic building or buildings towhich the waiver is granted.




c. A statement that the solar access guaranteed by this Section is waived or thatparticular structure and the City is held harmless or any damages resulting rom thewaiver.

d. A description and drawing o the shading which would occur, and

2. The Sta Advisor nds that:a. The variance does not preclude the reasonable use o solar energy on the site by

uture buildings; andb. The variance does not diminish any substantial solar access which benets a

habitable structure on an adjacent lot.c. There are unique or unusual circumstances which apply to this site which do not

typically apply elsewhere.

18.70.070 Solar Access Permit or Protection rom Shading by VegetationA. A Solar Access Permit is applicable in the City o Ashland or protection o shadingby vegetation only. Shading by buildings is protected by the setback provisions o thisOrdinance.B. Any property owner or lessee, or agent o either, may apply or a Solar Access Permitrom the Sta Advisor. The application shall be in such orm as the Sta Advisor mayprescribe but shall, at a minimum, include the ollowing:

1. A ee o ty ($50.00) Dollars plus Ten ($10.00) Dollars or each lot aected bythe Solar Access Permit.

2. The applicant’s name and address, the owner’s name and address, and thetax lot number o the property where the proposed solar energy system is to belocated.

3. A statement by the applicant that the solar energy system is already installedor that it will be installed on the property within one (1) year ollowing thegranting o the permit.

4. The proposed site and location o the solar energy system, its orientation withrespect to true south, and its slope rom the horizontal shown clearly in drawingorm.

5. A sun chart.

6. The tax lot numbers o a maximum o ten (10) adjacent properties proposedto be subject to the Solar Access Permit. A parcel map o the owner’s propertyshowing such adjacent properties with the location o existing buildings andvegetation, with all exempt vegetation labeled exempt.

7. The Solar Access Permit height limitations as dened in Section 18.70.050o this Ordinance or each aected property which is necessary to protect thesolar energy system rom shade during solar heating hours. In no case shall theheight limitations o the Solar Access Permit be more restrictive than the buildingsetbacks.

C. I the application is complete and complies with this Ordinance, the Sta Advisor shallaccept the solar access recordation application and notiy the applicant. The applicant isresponsible or the accuracy o all inormation provided in the application.

D. The Sta Advisor shall send notice by certied letter, return receipt requested, toeach owner and registered lessee o property proposed to be subject to the Solar AccessPermit. The letter shall contain, at a minimum, the ollowing inormation:

1. The name and address o the applicant.

2. A statement that an application or a Solar Access Permit has been led.

3. Copies o the collector location drawing, sun chart, and parcel map submittedby the applicant.



4. A statement that the Solar Access Permit, i granted, imposes on them dutiesto trim vegetation at their expense.

5. The advisability o obtaining photographic proo o the existence o trees andlarge shrubs.

6. The times and places where the application may be viewed.

7. Telephone number and address o the City departments that will provideurther inormation.

8. That any adversely aected person may object to the issuance o the permit bya stated time and date, and how and where the objection must be made.

E. I no objections are led within thirty (30) days ollowing the date the nal certiedletter is mailed, the Sta Advisor shall issue the Solar Access Permit.

F. I any adversely aected person or governmental unit les a written objection withthe Sta Advisor within the specied time, and i the objections still exist ater inormaldiscussions among the objector, appropriate City Sta, and the applicant, a hearing dateshall be set and a hearing held in accordance with the provisions o Section 18.70.080.

18.70.080 Hearing Procedure

A. The Sta Advisor shall send notice o the hearing on the permit application to theapplicant and to all persons originally notied o the Solar Access Permit application, andshall otherwise ollow the procedures or a Type I hearing.

B. The Sta Advisor shall consider the matters required or applications set orth inSection 18.70.070(B) on which the applicant shall bear the burden o proo, and theollowing actor on which the objector shall bear the burden o proo: A showing bythe objector that the proposed collector would unreasonably restrict the planting o vegetation on presently under-developed property.

1. I the objector is unable to prove these circumstances and the applicant makesthe showings required by Section 18.70.060(B), the Sta Advisor shall approvethe permit.

2. I the applicant has ailed to show all structures or vegetation shading o theproposed collector location in his application, the Sta Advisor may approve thepermit while adding the omitted shading structures or vegetation as exemptionsrom this Chapter.

3. I the objector shows that an unconditional approval o the application wouldunreasonably restrict development o the objector’s presently under-developedproperty, the Sta Advisor may approve the permit, adding such exemptions asare necessary to allow or reasonable development o the objector’s property.

4. I the Sta Advisor nds that the application contains inaccurate inormationwhich substantially aects the enorcement o the Solar Access Permit, the

application shall be denied.C. Any decision by the Sta Advisor is subject to review beore the Planning Commissionas a Type II planning action according to the usual procedures contained in this Title.(Ord. 2775, 1996)

18.70.090 Limits On Solar Access PermitsA. No Solar Access Permit may be led which would restrict any lot which has an averageslope o teen (15) percent in the northerly direction.B. A Solar Access Permit becomes void i the use o the solar collector is discontinued ormore than twelve (12) consecutive months or i the solar collector is not installed and




operative within twelve (12) months o the ling date o the Solar Access Permit. Theapplicant may reapply or a Solar Access Permit in accordance with Chapter 18.70.070,however, the application ee shall be waived.

18.70.100 Entry o Solar Access Permit Into RegisterA. When a Solar Access Permit is granted, the Sta Advisor shall:

1. File the Solar Access Permit with the County Clerk. This shall include the owner’sname and address and tax lot o the property where the recorded collector is to be

located, any special exceptions or exemptions rom the usual aects o a Solar AccessPermit, and the tax lots o the ten (10) or ewer adjacent properties subject to the SolarAccess Permit.

2. File a notice on each aected tax lot that the Solar Access Permit exists and that itmay aect the ability o the property owner to grow vegetation, and that it imposescertain obligations on the property owner to trim vegetation.

3. Send a certied letter, return receipt requested, to the applicant and to each ownerand registered lessee o property subject to the Solar Access Permit stating that suchpermit has been granted.

B. I a Solar Access Permit becomes void under Section 18.70.090(B), the Sta Advisorshall notiy the County Clerk, the recorded owner, and the current owner and lessee o property ormerly subject to the Solar Access Permit.

18.70.110 Eect and EnorcementA. No City department shall issue any development permit purporting to allow theerection o any structure in violation o the setback provisions o this Chapter.

B. No one shall plant any vegetation that shades a recorded collector, or a recordedcollector location i it is not yet installed, ater receiving notice o a pending Solar AccessPermit application or ater issuance o a permit. Ater receiving notice o a Solar AccessPermit or application, no one shall permit any vegetation on their property to grow in sucha manner as to shade a recorded collector (or a recorded collector location i it is not yetinstalled) unless the vegetation is specically exempted by the permit or by this Ordinance

C. I vegetation is not trimmed as required or is permitted to grow contrary to Section18.70.100(B), the recorded owner or the City, on complaint by the recorded owner,shall give notice o the shading by certied mail, return receipt requested, to the owneror registered lessee o the property where the shading vegetation is located. I theproperty owner or lessee ails to remove the shading vegetation within thirty (30) daysater receiving this notice, an injunction may be issued, upon complaint o the recordedowner, recorded lessee, or the City, by any court o jurisdiction. The injunction mayorder the recorded owner or registered lessee to trim the vegetation, and the courtshall order the violating recorded owner or registered lessee to pay any damages to thecomplainant, to pay court costs, and to pay the complainant reasonable attorney’s eesincurred during trial and/or appeal.

D. I personal jurisdiction cannot be obtained over either the oending propertyowner or registered lessee, the City may have a notice listing the property by owner,address and legal description published once a week or our (4) consecutive weeks ina newspaper o general circulation within the City, giving notice that vegetation locatedon the property is in violation o this Ordinance and is subject to mandatory trimming.The City shall then have the power, pursuant to court order, to enter the property, trimor cause to have trimmed the shading parts o the vegetation, and add the costs o thetrimming, court costs and other related costs as a lien against that property.

E. In addition to the above remedies, the shading vegetation is declared to be a public



nuisance and may be abated through Title 9 o the Ashland Municipal Code.

F. Where the property owner or registered lessee contends that particular vegetation isexempt rom trimming requirements, the burden o proo shall be on the property owneror lessee to show that an exemption applies to the particular vegetation.

7. VIRGIN ISLANDS

§ 1001. Short titleThis act shall be cited as the “Solar and Wind Energy Systems Act.”

§ 1002. Declaration o ndings and policyThe Legislature o the Virgin Islands nds and declares that the prohibitive costs o electrical power and the increasing occurrences o electrical power outages in the VirginIslands requires the Government o the United States Virgin Islands to pursue seriousconsideration o other energy sources. Further, the use o renewable energy sources,such as solar energy and wind energy, will help to reduce continuing dependency andreliance on depletable energy resources such as oil, natural gas, and coal. Thereore, theLegislature declares that it is in the public interest to develop and expand solar and windenergy systems to meet the present and uture energy needs o the Virgin Islands. Theowner o a solar or wind energy system would be permitted to negotiate or assurance o continued access to the owner’s energy source. Zoning regulations would be promulgated

that would encourage and protect renewable energy systems.

§ 1003. DenitionsAs used in this chapter, the term “solar or wind energy system” means any system thatconverts, stores, collects, protects or distributes the kinetic energy o the sun or wind intomechanical, chemical or electrical energy to provide power generation or the heatingo water, the heating and cooling o buildings or other structures, and other similarpurposes.

§ 1004. Prohibited conveyances(a) Any covenant, condition, or restriction contained in any deed, contract, mortgage,

security instrument, or other instrument pertaining to a conveyance, sale or transer o real property or interest therein which prohibits or unreasonably limits the installation oruse o a solar or wind energy system shall be void and unenorceable.(b) A covenant, condition or restriction shall be considered “unreasonable” or thepurposes o this chapter i it signicantly increases the cost and expense o the solaror wind energy system to its owner or user, or signicantly decreases its eciency, orotherwise eectively discourages the installation or use o a solar or wind energy system.

§ 1005. Energy system height limitationNotwithstanding the provisions o Title 29, chapter 3, Virgin Islands Code, a tower usedin a solar or wind energy system may exceed the height limitation o the district in whichit is located by no more than one hundred (100) eet.

§ 1006. Easement or solar or wind energy system; rules and regulations

(a) For a subdivision o land or which a preliminary plot or general subdivision plan,or any other plan or data is required pursuant to the provisions o Title 29, chapter 3,subchapter II, Virgin Islands Code, the Planning Director shall also require, as a conditiono approval o such plan or plans, a dedication o easements or the purpose o assuringthat each parcel or unit in the subdivision shall have the right to receive sunlight or windacross adjacent parcels or units in the subdivision.

(b) The Planning Director shall issue rules and regulations to eectuate the provisions o




this chapter and shall include therein the ollowing:

(1) Standards or determining the exact dimensions and locations o such easements

(2) Restrictions on vegetation, buildings and other objects which could obstruct thepassage o sunlight or wind through such easements;

(3) Terms or conditions, i any, under which an easement may be revised orterminated; and

(4) Considerations o cost, easibility, contour, and conguration o the parcels or

units to be subdivided.(c) Such an easement shall not result in reducing allowable densities on any segment

o a parcel or unit o a subdivision which may be occupied by a building or otherstructure already constructed, or presently under construction, on October 3, 1984.

8. STATE OF WISCONSIN

66.0401 Regulation relating to solar and wind energy systems

66.0401(1)

(1) Authority to restrict systems limited. No county, city, town, or village may place anyrestriction, either directly or in eect, on the installation or use o a solar energy system,

as dened in s. 13.48 (2) (h) 1. g., or a wind energy system, as dened in s. 66.0403 (1)(m), unless the restriction satises one o the ollowing conditions:

66.0401(1)(a)(a) Serves to preserve or protect the public health or saety.66.0401(1)(b)(b) Does not signicantly increase the cost o the system or signicantly decreaseits eciency.66.0401(1)(c)(c) Allows or an alternative system o comparable cost and eciency.66.0401(2)

(2) Authority to require trimming o blocking vegetation. A county, city, village, or town

may provide by ordinance or the trimming o vegetation that blocks solar energy, asdened in s. 66.0403 (1) (k), rom a collector surace, as dened under s. 700.41 (2) (b),or that blocks wind rom a wind energy system, as dened in s. 66.0403 (1) (m). Theordinance may include, but is not limited to, a designation o responsibility or the costso the trimming. The ordinance may not require the trimming o vegetation that wasplanted by the owner or occupant o the property on which the vegetation is locatedbeore the installation o the solar or wind energy system.

236.292 Certain restrictions void236.292(2)(2) All restrictions on platted land that prevent or unduly restrict the construction andoperation o solar energy systems, as dened in s. 13.48 (2) (h) 1. g., or a wind energy

system, as dened in s. 66.0403 (1) (m), are void.

9. STATE OF FLORIDA

SOLAR RIGHTS LAW (Sections 163.04 and 718.113, Florida Statutes)

163.04 Energy devices based on renewable resources

(1) Notwithstanding any provision o this chapter or other provision o general orspecial law, the adoption o an ordinance by a governing body, as those termsare dened in this chapter, which prohibits or has the eect o prohibiting theinstallation o solar collectors, clotheslines, or other energy devices based onrenewable resources is expressly prohibited.



(2) A deed restriction, covenant, declaration, or similar binding agreement maynot prohibit or have the eect o prohibiting solar collectors, clotheslines,or other energy devices based on renewable resources rom being installedon buildings erected on the lots or parcels covered by the deed restriction,covenant, declaration, or binding agreement. A property owner may not bedenied permission to install solar collectors or other energy devices by any entitygranted the power or right in any deed restriction, covenant, or similar bindingagreement to approve, orbid, control, or direct alteration o property with respect

to residential dwellings and within the boundaries o a condominium unit. Suchentity may determine the specic location where solar collectors may be installedon the roo within an orientation to the south or within 45° east or west o duesouth i such determination does not impair the eective operation o thesolar collectors.

(3) In any litigation arising under the provisions o this section, the prevailing partyshall be entitled to costs and reasonable attorney’s ees.

(4) The legislative intent in enacting these provisions is to protect the public health,saety, and welare by encouraging the development and use o renewableresources in order to conserve and protect the value o land, buildings, and

resources by preventing the adoption o measures which will have the ultimateeect, however unintended, o driving the costs o owning and operatingcommercial or residential property beyond the capacity o private ownersto maintain. This section shall not apply to patio railings in condominiums,cooperatives, or apartments.

718.113. Maintenance; limitation upon improvement; display o fag; hurricaneshutters.

(6) Notwithstanding the provisions o this section or the governing documents o acondominium or a multicondominium association, the board o administrationmay, without any requirement or approval o the unit owners, install upon

or within the common elements or association property solar collectors,clotheslines, or other energy-ecient devices based on renewable resources orthe benet o the unit owners.

SOLAR ENERGY SALES TAX EXEMPTION (Chapter 212, Florida Statutes)

212.02 (26) “Solar energy system” means the equipment and requisite hardwarethat provide and are used or collecting, transerring, converting, storing, orusing incident solar energy or water heating, space heating, cooling, or otherapplications that would otherwise require the use o a conventional source o energy such as petroleum products, natural gas, manuactured gas, or electricity.

212.08 (hh) Solar energy systems. Also exempt are solar energy systems or anycomponent thereo. The Florida Solar Energy Center shall rom time to timecertiy to the department a list o equipment and requisite hardware consideredto be a solar energy system or a component thereo.

SOLAR ENERGY STANDARDS ACT (Section 377.705, Florida Statute)

377.705 Solar Energy Center; development o solar energy standards.

(1) SHORT TITLE. This act shall be known and may be cited as the Solar EnergyStandards Act o 1976.




(2) LEGISLATIVE FINDINGS AND INTENT

(a) The Legislature recognizes that i present trends continue, Florida will increasepresent energy consumption six old by the year 2000. Because o this dramaticincrease and because existing domestic conventional energy resources will notprovide sucient energy to meet the nation’s uture needs, new sources o energymust be developed and applied. One such source, solar energy, has been inlimited use in Florida or 30 years. Applications o incident solar energy, the use osolar radiation to provide energy or water heating, space heating, space cooling,

and other uses, through suitable absorbing equipment on or near a residence orcommercial structure, must be extensively expanded. Unortunately, the initialcosts with regard to the production o solar energy have been prohibitivelyexpensive. However, because o increases in the cost o conventional uel, certainapplications o solar energy are becoming competitive, particularly when lie-cyclecosts are considered. It is the intent o the Legislature in ormulating a soundand balanced energy policy or the state to encourage the development o analternative energy capability in the orm o incident solar energy.

(b) Toward this purpose, the Legislature intends to provide incentives or theproduction and sale o, and to set standards or, solar energy systems. Suchstandards shall ensure that solar energy systems manuactured or sold within

the state are eective and represent a high level o quality o materials,workmanship, and design.

(3) DEFINITIONS

(a) “Center” is dened as the Florida Solar Energy Center o the Board o Regents.

(b) “Solar energy systems” is dened as equipment which provides or the collectionand use o incident solar energy or water heating, space heating or cooling,or other applications which normally require or would require a conventionalsource o energy such as petroleum products, natural gas, or electricity andwhich perorms primarily with solar energy. In such other systems in which solarenergy is used in a supplemental way, only those components which collect andtranser solar energy shall be included in this denition.

(4) FLORIDA SOLAR ENERGY CENTER TO SET STANDARDS, REQUIRE DISCLOSURE,SET TESTING FEES

(a) The center shall develop and promulgate standards or solar energy systemsmanuactured or sold in this state based on the best currently availableinormation and shall consult with scientists, engineers, or persons in researchcenters who are engaged in the construction o, experimentation with, andresearch o solar energy systems to properly identiy the most reliable designsand types o solar energy systems.

(b) The center shall establish criteria or testing perormance o solar energy systemsand shall maintain the necessary capability or testing or evaluating perormanceo solar energy systems. The center may accept results o tests on solar energysystems made by other organizations, companies, or persons when such testsare conducted according to the criteria established by the center and when thetesting entity has no vested interest in the manuacture, distribution or sale o solar energy systems.



(c) The center shall be entitled to receive a testing ee sucient to cover the costso such testing. All testing ees shall be transmitted by the center to the Chie Financial Ocer to be deposited in the Solar Energy Center Testing Trust Fund,which is hereby created in the State Treasury, and disbursed or the payment o expenses incurred in testing solar energy systems.

(d) All solar energy systems manuactured or sold in the state must meet thestandards established by the center and shall display accepted results o approvedperormance tests in a manner prescribed by the center.








A ComprehensiveReview of

Solar Access Lawin the United State

Suggested Standards for

Model Statue and Ordinanc

Prepared

Colleen McCann KettleFlorida Solar Energy Research and Educatio

Solar America Board for Codes and StandardsSolar America Board for Codes and Standards

Documents

Solar Access Full