As a result of the more rapid adoption of solar energy measures by homeowners and businesses in response to state and federal incentives, the US Department of Energy commissioned a study of the effectiveness of current laws pertaining to solar access. Solar energy systems require direct access to sunlight to operate effectively and efficiently.
The solar access issue is separated into two distinct areas: solar easements and solar rights. “Solar easements” refers to the ability of one property to continue to receive sunlight across property lines without obstruction from another’s property (e.g., buildings, foliage, or other impediments). “Solar rights” refers to the ability to install solar energy systems on residential and commercial property that is subject to private restrictions (e.g., covenants, conditions, restrictions, bylaws, condominium declarations, and local government ordinances and building codes).
The United States has held that there is no common law right to sunlight. This requires that specific statutory authority be established to protect the rights of solar users in terms of their ability to install a solar energy system on their property, and after that system is installed, to protect their access to sunlight so the system remains operational.
Land-use planning, authority for solar easements, and prohibitive covenants, conditions and restrictions that impede the use of solar energy have all been employed to protect solar access with varying degrees of success. The DOE report reviews traditional legal mechanisms that govern the operation of public and private governments, as well as solar-specific ordinances and statutes that have evolved over the years. It concludes that most current law has been ineffective or too expensive because of the lack of enforcement mechanisms.
The report recommends a model statute for implementation at the state level. The model statute includes prescriptive provisions, such as community design and solar easements. It also includes prohibitive provisions, such as those restricting the use of solar energy. At the local level, the report recommends that focus be placed on implementation and enforcement of state law. Specifically, the site-plan review and approval requirement should include an element to address current and future use of solar energy (e.g., solar easements, landscaping, and building height restriction and orientation).
Note: This work was sponsored by the Solar America Board for Codes and Standards. The Solar America Board for Codes and Standards (Solar ABCs) is a collaborative effort among experts to formally gather and prioritize input from the broad spectrum of solar photovoltaic stakeholders including policy makers, manufacturers, installers, and consumers resulting in coordinated recommendations to codes and standards making bodies for existing and new solar technologies. The U.S. Department of Energy funds Solar ABCs as part of its commitment to facilitate wide-spread adoption of safe, reliable, and cost-effective solar technologies.
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Submitted by Colleen McCann Kettles, JD
Florida Solar Energy Center