Consumers Right to the Sun

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.

“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. 


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