Chapter 3.2
Development Densities

• ALL
• Remove Code Barriers
• Create Incentives
• Fill Regulatory Gaps

Limiting Off Property Shading of Solar Energy Systems

INTRODUCTION

Renewable solar energy systems create no direct pollution in their functioning and require very little maintenance.[1] As a result, solar energy has become a popular way to generate electricity, provide light, and heat water for domestic, commercial, and/or industrial use.[2] To operate efficiently, solar energy systems need direct access to sunlight. The more direct sunlight, the more efficient the system is. Shading from vegetation and structures can block sunlight. This presents a difficult challenge when the vegetation and structures are on someone else’s property. To balance the necessity of new vegetative and developmental growth against the importance of solar access rights, some local governments have enacted legislation that expressly protects solar energy systems from shading.

Protection from shade can be achieved through a permit process, by-right, or through an easement.[3] In terms of permits, there are two significant permit processes that create protection from shading: a protective solar access permit and a solar installation permit. The two achieve the same goals, but in slightly different ways. A protective solar access permit ensures the shading from vegetation, fences, buildings, and other structures on adjacent properties do not interfere with solar energy collectors. A solar installation permit grants the installer/owner of the solar energy system protected access. For more information regarding solar installation permits see Streamlining Solar Permit and Inspection Process.

The language included in local permitting regulations may include limiting the height of existing trees and buildings, ensuring new construction will not interfere with potential or existing solar energy systems, and prohibiting the planting of certain vegetation if when fully grown would shade or interfere with solar energy system. Obtaining a permit may include an application process, which requires submission of a map of all properties affected, labeling buildings, vegetation, and other structures. After the application is complete, the burdened landowner may be put on notice that an application has been submitted and afforded an opportunity to raise objections to the permit. An individual or committee appointed by the local government will then have the ability to either approve or deny the application. If approved, the landowner will receive either a protective permit over the system or an installation permit to build a system. The landowner typically has the burden of recording the permit and installing or maintaining the solar energy system while the burdened landowner has the responsibility of removing and maintaining vegetation and structures that have the potential to interfere with the system.[4]

EFFECTS

Creating an opportunity for landowners to protect their solar rights can incentivize solar energy systems by protecting the efficiency of the systems. Prohibiting new vegetative growth and other structures from shading solar energy systems protects solar investments. In order to gain a quicker return on initial investment, a system needs to be clear of shading to operate at full capacity. When a solar energy system underperforms because of shading outside the owner’s control, owners anticipated return on investment is extended, adding financial hardship and increasing greenhouse gases. Ordinances which grant protection from shading reduce the risk of underperforming systems by legally obligating the surrounding landowners to eliminate structures and vegetation that obstruct direct sunlight.

Drawbacks to enacting a protective ordinance prohibiting new vegetative growth and structures from shading include that it may impose unnecessary or unexpected economic costs on neighbors in both maintenance and property value. By limiting development rights, the ordinance may alter property values in a manner similar to other regulatory use impacts on property and may increase permitting burdens.[5]

EXAMPLES

Hartford, CT

Hartford, CT enacted a provision that prohibits new vegetative growth from shading solar energy systems. Because this ordinance establishes the protection “by-right,” no legislative or administrative action or protective permit is necessary to protect solar energy systems. The system is protected by-right from new vegetative growth and associated shading. The regulation states that “a property owner may not plant any tree which, when fully grown, will shade a solar collector existing at the time of the planting of the tree.”[6]

To view the provision, see Hartford, CT Zoning Regulations §6.4.1(E) (2018).

Ashland, OR

In 1981, Ashland, OR was one of the first cities in the country to introduce a solar access protection law.[7] The primary purpose of the City’s solar access ordinance is to preserve the investment in solar energy by decreasing the amount of shade from structures and vegetation whenever possible.[8] Any property owner may apply for a protective permit as long as their application includes a $50 fee with an additional $10 fee for each lot affected by the permit, a statement by the applicant, affirming “the solar energy system is already installed or that it will be installed on the property within one year following the granting of the permit,” and a parcel map of the owner’s property, identifying the location of adjacent buildings and vegetation.[9] A Staff Advisor reviews the permit application, allows 30 days for any objections by adjacent landowners, then notifies the applicant if the permit has been approved. Once the permit is in place, planting vegetation that shades the system or erecting a structure that interferes with the system is prohibited.[10] Further, in Ashland, a Solar Access permit “becomes void if the use of the solar energy system is discontinued for more than 12 consecutive months or if the solar energy system is not installed and operative within 12 months of the filing date of the solar access permit.”[11]

To view the provision, see City of Ashland, OR Land Use Code §18.4.8.060 (current through December, 2018).

Ridgecrest, CA

The City of Ridgecrest, CA creates a solar access easement to prevent vegetation, buildings, fences, walls, or other structures from creating shade over a solar energy system.[12] Located in the subdivision code, the request for an easement must contain a clear diagram of the direct sunlight path and language for the steps to terminate or revise the easement.[13] If the easement drastically alters the purpose of the burdened land or would not be feasible, the structures or vegetation that cast a shadow will remain and the easement will not be valid.[14] Additionally, if the easement is approved without any issues, it should be recorded to be valid.[15]

To view the provision, see Ridgecrest, CA Code of Ordinances § 19-2.4 (current through 2017).

Boulder, CO

Boulder, CO divides properties into three “Areas” to ensure each type of property receives adequate solar protection.[16] Area One, which contains multiple zones, primarily protects south yards, walls, and rooftops.[17] There is no permit required in this area to receive protection.[18] Area Two only protects rooftops and also does not require a permit to gain protection.[19] Area Three, which consists of planned densities, requires a permit to gain solar access protection.[20]

The City’s ordinance calculates the applicable degree of shade protection by the height of a vertical and hypothetical “solar fence.” Such a fence completely encloses the lot within the property lines.[21] In Area One, a structure may not be built which would shade the lot greater than a hypothetical twelve-foot “solar fence.”[22] In Area Two, the hypothetical “solar fence” height is increased to twenty-five feet.[23] The solar fence calculation is not applicable in Area Three, as the only way to obtain protection in this area is through a protective permit.[24]

When an individual in the City requires a permit to obtain solar access protection, their application must include a description of the solar energy system, the adjacent properties, any obstructing vegetation, the benefit from the system, and proof that the system is or will be located in an area where its efficiency is maximized.[25] Once all the application materials have been received, the City Manager has the authority to approve the permit and may place additional conditions on the permit.[26] If the permit is approved, it will expire if the system is not installed within one year or is dormant for a continuous period of two years.[27] Additionally, the protection permit is only enforceable if it has been properly recorded.[28]

In regards to vegetation, any greenery growing or in the ground at the time the permit application is submitted may not be ordered trimmed or removed.[29] If future vegetation interferes with the solar collector after the permit has been granted, the cost to remedy the shading falls on the vegetation owner.[30] If the individual fails to remedy the problem, the City will complete the project at the individual’s expense.[31] Additionally, failure to pay the City for the removal may result in a collection by the County Treasurer and may be levied against the individual’s personal property.[32]

To view the provision, see City of Boulder, CO Municipal Code § 9-9-17(c).

ADDITIONAL EXAMPLES

Clackamas, OR Municipal Code § 1019.01 (2005) (a protective permit prohibits shade caused by vegetation and adjacent land structures).

Schaumburg, IL Municipal Code § 154.70 (2016) (protective easements against shade by vegetation or structures may be granted, reserved, bought, or otherwise obtained).

South Miami, FL Land Development Code § 20-3.6(w)(3) (Current through 2018) (requiring many residential structures to be designed in a way which maximizes the efficiency of existing and future solar collectors).