Chapter 7.2
Solar Energy

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

Process to Resolve Tree Interference with Solar Access

INTRODUCTION

Issues often arise when trees on one landowner’s property impede access to sunlight for solar energy systems on a neighboring landowner’s property.[1] This obstruction of access to sunlight for solar energy systems is of particular concern because those systems require direct access to sunlight to operate efficiently.[2]  Communities can set up mechanisms through which solar access conflicts may be resolved with minimal impact to local tree resources—a competing environmental interest.[3]

Mechanisms for resolving disputes over solar access can take several forms.  Property owners can expressly agree to allocate solar rights in the form of an easement, covenant, or tenancy arrangement.^[4] Tree disputes can also be resolved through permitting systems and zoning regulations (for a brief on solar easements see Limiting Off Property Shading of Solar Energy Systems).^[5]

Another option for local governments is dispute resolution. Local dispute resolution ordinances involving tree and sunlight access disputes can vary, but often contain several core components. These components include procedures to provide notice to the opposing party, some form of informal mediation followed by the option of a hearing before a committee (as well as designation or creation of that committee), and/or binding arbitration.[6] Several dispute resolution ordinances provide standards for evaluating the merits of claims, as well as “considerations for selecting restorative action.”[7] Usually, an ordinance will specify that “the complaining party is. . . required to demonstrate that view obstruction did not exist at the time they acquired the property. The claimant is also required to demonstrate that the burdens imposed by the tree outweigh the benefits that the tree provides.”[8] Ordinances may also include a hierarchy of possible restorative actions, with a preference for actions less permanently damaging to trees.[9] Additionally, local governments may add apportionment of costs, recording, notification to future owners, and enforcement.[10]

Though these ordinances are generally located in a section of a local government’s ordinances devoted to trees, and often do not contain any reference, or only a cursory reference, to solar power access specifically, three things should be noted. First, though these ordinances are generally crafted with the interests of preserving a homeowner’s views from their house or general access to sunlight from tree blockage on someone else’s property, that does not mitigate their application to encouraging solar power access. Second, local governments could and should be sure to include solar power access explicitly in designing such an ordinance and in their standards for considering the action. Third, while currently these dispute resolution ordinances only deal with trees blocking solar access, local governments can also incorporate other structures that block solar access, possibly in a separate section of the code.

EFFECTS

According to the US Department of Energy (DOE), the total output of solar energy systems in the US has grown from 1.2 gigawatts to an estimated 30 gigawatts in the past ten years.[11]  This increase in output, which accompanied a decrease in the cost of solar panels, may make solar power a clean energy source that is economically competitive and may help create jobs.[12] Despite these advantages, the DOE additionally recognizes that “soft costs” prevent solar energy systems from being implemented on a wider scale, frequently constituting 55 percent of a residential solar power system’s overall costs.[13] Removing or reducing these costs could help increase solar access.

One of the primary goals of tree dispute resolution is to increase efficiency while maintaining the health of trees and the suitability of solar energy systems. As the Georgia Model Solar Zoning Ordinance recognizes, some regions are experiencing declining tree coverage, and tree removal to allow for solar access could exacerbate other problems, such as flooding, climate change, and biodiversity loss.[14] For example, trees provide shade that can keep homes cool, thereby reducing the amount of electricity needed to cool them.[15]  With the right tree dispute resolution process in place, municipalities can achieve continued development of this clean energy source without unduly compromising local tree coverage, which provides important environmental benefits (for ordinances focused on increasing the tree canopy cover see Tree Canopy Cover).

EXAMPLES

Del Mar, CA

Del Mar, CA recognizes “[t]rees, [s]cenic [v]iews and plentiful [s]unlight” are psychologically, aesthetically, and economically beneficial to the City.[16] The City explicitly recognizes the benefit of sunlight access to the utilization of solar energy.[17] As such, within its Code, it balances the benefits of trees and solar energy systems with a citizen dispute resolution process. In the process, “persons may seek to restore [s[cenic [v]iews and/or [s]unlight that has been unreasonably obstructed by the growth and/or installation of [t]rees and [v]egetation.”[18]

A homeowner can seek to restore and preserve sunlight access that is unreasonably obstructed by trees or vegetation within 300 feet of the applicant’s property boundaries, which existed when the property was purchased or within the last 10 years, whichever is shorter.[19] In combination with an administrative fee, a complainant can submit an application to the Department of Planning and Community Development, which will then provide time for, information about, and strong encouragement of mediation, as well as notice to the opposing party.[20] If mediation does not resolve the dispute, then a public hearing will be held before the commission, with both sides able to present evidence and arguments.[21]

The commission then makes a final determination based on standards that include reasonable efforts by the applicant to resolve the dispute and factors relating to whether sunlight access is unreasonably obstructed (the factors balance the quality and purpose served by the sunlight, including solar power access).[22] If the commission determines that there is an unreasonable obstruction, it will set the restorative action, which is based on codified criteria.[23] These criteria take into account the value and purpose of the tree (including its wildlife conservation effect, effect on soil stability, and energy conservation value). The code also sets forth a codified hierarchy of restorative actions that aim to preserve the tree or vegetation to the extent feasible.[24] Del Mar provides for an enforcement timeframe and mechanism, as well as an appeals process making the decision subject to judicial review.[25]

To view the ordinance, see Del Mar, CA Municipal Code §§ 23.51.010-23.51.120 (2019).

Alameda County, CA

Alameda County, CA created an ordinance that applies to a specific area. It establishes “the right of persons to preserve views or sunlight which existed at any time since they purchased or occupied a property from unreasonable obstruction by the growth of trees; [and] [t]o establish a process by which persons may seek restoration of such views or sunlight when unreasonably obstructed by the growth of trees or other vegetation.”[26]

The County looks to balance the preservation of trees with unobstructed views and sunlight.[27] A criterion the County sets forth to determine the validity of an unreasonable obstruction to the requisite “primary living area” is the “extent to which the trees interfere with efficient operation of a complaining party's pre-existing solar energy systems.”[28] The code defines primary living area as “the portion or portions of a residence from which a view is observed most often by the occupants relative to other portions of the residence.”[29]  Several criteria are also set forth for evaluating the proper restorative action.[30] The criteria include visual and auditory privacy, wind screening, aesthetics, soil conservation, and wildlife habitat provided by the tree, as well as the financial burden of the restorative action.[31] Options for restorative actions include several varieties of trimming, as well as removal with replacement planting.[32] The County provides guidelines as to which restorative actions are preferred, favoring those least invasive to trees.[33]

The ordinance establishes a dispute resolution process that includes notice and dialogue in an attempt to resolve the dispute.[34] If dialogue fails, then the complainant attempts mediation, which the tree owner can decline.[35] If mediation is declined or fails, the complainant must prepare a “tree claim,” which includes information about the tree, proposed measures, and evidence of attempted and failed initial reconciliation and mediation, and must also serve this on the tree owner.[36] The complainant must then offer binding arbitration to the tree owner, who may accept or decline.[37] If the tree owner declines arbitration, the complainant is then free to pursue civil litigation.[38]

To view the ordinance, see Alameda County, CA Code of Ordinances §§ 6.66.010-6.66.130 (2012).

ADDITIONAL EXAMPLES

Clyde Hill, WA Municipal Code §§ 17.38.010-17.38.100 (2019) (providing a dispute resolution process for disputes over sunlight or views that existed at any time since the property was purchased and have since been blocked by trees on an adjacent property, and which explicitly recognizes the value of sunlight to solar power access).

San Francisco, CA Public Works Code §§ 820–829 (2018) (requiring, for the purpose of promoting all feasible uses of alternative energy, that property owners engage in a process of initial reconciliation, community board mediation, arbitration, or if necessary, litigation, when they believe that a tree on another’s property interferes with their access to sunlight).

Tiburon, CA Municipal Code §§ 15-1-15-16 (2017) (providing a tree dispute resolution process that includes a criterion for unreasonable obstruction by trees through the “extent to which the trees interfere with efficient operation of a complaining party’s pre-existing solar energy systems.”).

Sausalito, CA Municipal Code §§ 11.12.010-11.12.050 (1989) (providing a tree dispute resolution process in regard to blocked views and sunlight, beginning with initial reconciliation, and also including the options of mediation, binding arbitration, and, finally, if all else fails or is rejected, review of the claim by the Planning Commission. If a tree owner fails to comply with the decision, administrative fines, including a lien on their property, can be incurred).

Contra Costa, CA County Code §§ 816-2.202-816-6.1208 (2019) (providing a method for private property owners to gain restoration of views and sunlight lost due to tree growth by another private property owner; includes initial reconciliation, arbitration, and if necessary, litigation).

Medina, WA Municipal Code §§ 18.16.010-18.16.160 (2007) (preserving and restoring views or sunlight when such views or sunlight have subsequently been unreasonably obstructed by the growth of trees; offers voluntary mediation, binding arbitration, and litigation).