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Consumers Right to the Sun

By Jane Pulaski
November 27, 2007 | 11 Comments

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Solar access laws, a topic generally relegated to the province of attorneys and feuding neighbors, establish certain rights for homeowners and businesses to use sunlight to generate solar thermal or solar electric energy. On the books in several states, solar access laws also describe how Homeowner Associations (HOA's) and local governments can sometimes restrict the use of solar energy in their developments through codes, covenants and restrictions (CCR's). To further complicate the issue, growth of trees or new construction of homes or buildings can obstruct the benefits of a solar installation.

"I think solar access will become more of an issue in part because of the California Solar Initiative, which will translate into many more systems installed."

--Scott Anders, Director of the Energy Policy Initiatives Center, University of San Diego School of Law

"While there are always disputes arising from solar access issues," says Scott Anders, Director of the Energy Policy Initiatives Center (EPIC), at the University of San Diego School of Law, "with the exception of a few high profile cases, historically, activity has not been very high." According to Anders, many solar access issues arise at the HOA level and never go any further. "We found very little case law in this area," he asserts.

Although California is the only state to enact a statutory-based right to access sunlight for solar energy projects, other states have or are enacting legislation which can help protect a consumer's solar rights.

"I think solar access will become more of an issue in part because of the California Solar Initiative, which will translate into many more systems installed," says Anders.

Erik J.A. Swenson, a Partner at King and Spalding LLP, assists energy project developers in negotiating key project contracts and obtaining financing, participates in administrative and court proceedings to uphold the rights of developers, industrial companies and lenders under federal and state energy laws, and advises lenders and equity investors with respect to specific energy projects and electric industry issues.

"I believe it's generally safe to say that things are heating up, and as a whole, the trend favors increased consumer rights rather than HOA rights," says Swenson.

Anders agrees.

"Actually, to the extent that HOA CC&Rs are seen as barriers to sustainable solutions, I could see HOAs weakened over time to remove restrictions to reduce green house gas (GHG)."

An upcoming telephone seminar presented by the Interstate Renewable Energy Council with funding from the U.S. Department of Energy's Solar America Initiative on December 6, 2007, will examine the consumer's right to sunlight and give examples of how these laws are applied around the country.

The two speakers for this seminar, Scott Anders and Erik J.A. Swenson, are experts on solar rights and both have written recent papers on the topic. For more information about the call seminar, contact Larry Sherwood.

Jane Pulaski is National Outreach coordinator for the Interstate Renewable Energy Council, a non-profit organization dedicated to moving renewable energy resources into the marketplace. The author wishes to thank Scott Anders and Erik J.A. Swenson for their contributions to this article.

Solar Energy

The information and views expressed in this article are those of the author and not necessarily those of RenewableEnergyWorld.com or the companies that advertise on its Web site and other publications.

11 Reader Comments

Comment
1 of 11

dawud-muhammad-37320

November 27, 2007

This is a important forum that is educational in nature to the point that it involved the individual rights to the pursuant s of rights to the sunlight.
The establishment of an solar access laws
should be included in the next new energy bills for all states where the need for energy independences so important and in the benefit for our country and for the security of an societies social-economic well being.

Comment
2 of 11

bob-lada-74249

November 27, 2007

THERE ARE TOO MANY LAWS ALREADY. IF A PERSON'S PROPERTY HAS THE SUN SHINING ON IT, THERE'S THE RIGHT. PERIOD. NOW, IF IT'S THE MATTER OF A PROPERTY NEEDING TO RISE ABOVE ANOTHER PROPERTY,TO ATTAIN SUNRAYS, THEN YOU HAVE A PROBLEM LET'S KEEP IT SIMPLE PEOPLE. IF YOU GOT IT, USE IT. YOU CAN'T (SHOULDN'T) CLIMB TO IT. BL/ RL.

Comment
3 of 11

john-broughton-40988

November 27, 2007

Jane good points on a key issue that involves all renewable energy resources, ecspecially solar residential and commercial systems. Solar easements and future development are only a few variables one should consider when developing potential new projects. With the enormous ramp up of renewable energy projects nationwide it would behoove those involved to conduct the proper due diligence when developing or implementing a project.
JB
www.nrgmanager.com

Comment
4 of 11

greg-montijo-74096

November 28, 2007

Bob Lada poses an intersting concept. Here in Hawaii, as well as many other urbanizing suburbs, it is often the case where, by means of zoning change or other planning and political tools, the perceived value to the community is given sway and projects are approved that put their shadow on adjacent properties. What we need are laws that provide that everything that rises must converge. That is, solar power must be provided by new development that overshadows prior development.

Greg Montijo, MCRP

Comment
5 of 11

marston-schultz-72158

November 28, 2007

Many of the problems of solar access could be rectified if the energy consumer is allowed to install his or her array on a separate property with proper solar exposure and access to the grid. A second meter would be required The consumer would put up his array on land made available by some one else.
The land could be anywhere within the service area of the primary energy provider, preferably in the same community. Anyone doing one of these remote installations would generate energy credits toward their bill, a simple thing to do with current technology.

This would make solar available to the following:

Renters
Those with poor solar exposure.
Historical buildings
Buildings in historical zones
Those under restrictive covenant (Homeowners Associations)

If we can break the physical link between the user and the energy generator, this will democratize solar access.

thinkingman@sbcglobal.net

Comment
6 of 11

-22434

November 28, 2007

In response to James Giambrone Jr, I think your approach to the height issue v/s renewable 'wind' energy and HAM radio towers, should center on HomeLand Security issues.

There may even be funding or language in the HomeLand Security Act that would recognize the value of towered devices for the protection of the citizenry of Oregon and throughout the United States of America.

The planning department would be hard pressed to deny the need for communications and emergency power in the event of a natural disaster or terrorist act. A wind system or a photovoltaic system would continue to operate during such disasters, and when the utility grid may be off line.

allen@scholfieldsolar.com

Comment
7 of 11

eugene-lucas-60935

November 28, 2007

While I'm in favor of land owners' right to the solar energy that strikes their property, I'd be a little miffed if my neighbor decided to put a solar-thermal trough in his yard. There goes the neighborhood. We need to define, "where the tip of my nose is," which defines how far you have the freedom to swing your arm (or install a PV array, etc.). Personally, I'd love to install a solar-thermal trough on the roof of my carport in order to use the hot liquid directly to heat and cool my home. But...

Comment
8 of 11

james-giambrone-jr-57337

November 28, 2007

Good article-thank you.
I live in Bandon, Oregon, on the southern coast and the city is about to delete an exception to building height limits which will in effect ban new wind turbines (and ham radio antennas) in our town. They know of this effect, action taken up by the planning commission which feels towers are ugly.

This will take us in the opposite direction of the rest of the world. We are a tourist destination since the timber and fish industries have shrunk.

Would any of you be interested in weighing in on Bandon politics by calling city hall, 541-347-2437 The city manager's email is: citymanager@ci.bandon.or.us; the mayor, Mary Schamehorn, is: marys@coosnet.com planning dept is: mhampton@ci.bandon.or.us
Mine is: JimmyG@CommonSenseAmerica.info
Thank You.

Comment
9 of 11

scott-kelley-74368

November 28, 2007

All very good points are being made. It is time for a change, right now. We have the products to harvest energy from Mother Earth in a non evasive way and through education of the consumer, will we only win the battle with politics. The consumer dollar is almighty, and we the consumer have the right to demand what we want and what we need. The polticians will follow the money as they always do.
Michigans Insentive for wind generators is only $40K for five new homes to be built with a tough guide line.

Comment
10 of 11

david-miller-69770

November 28, 2007

Senator Menendez of NJ is working to get the S.O.L.A.R bill passed, last I heard it was in committee somewhere. The SOLAR act would not only allow homeowners the right to have solar PV systems installed but would call for nationawide net metering laws to be enacted which would cover all utilities and co-ops. Any excess green energy returned to the grid, the home owners would be compensated for the same price they bought the power for. Petition site is the first place we all need to visit.
http://www.thepetitionsite.com/takeaction/654310470?z00m=9419835

D Miller

Comment
11 of 11

gunther-beck-68945

November 28, 2007

My worry is: will there be countries that simply forbid private use of sunshine or wind, simply to prevent that people become independent of the power companies? Sounds strange, but with the financial interests and political power behind the energy business, who can rule it out? (You have to link to the public water, you have to link to the waste-water and pay for it, no way out, even if you could do it better and cheaper on your own!)

I would plead for a humans right to produce one's own renewable power as long as it is not reducing the power available for others. That means harvesting the sun/wind on the own real estate must be a right that no state or lobby can touch.

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