Solar Energy Systems As Special Use Exceptions
Andrés Jiménez-Franck (author), Darcie White, Sara Bronin, Katie Gatzke & Jonathan Rosenbloom (editors)INTRODUCTION
The use of residential solar energy systems is outpacing the rate at which local governments are adopting zoning regulations to account for their use and installation. As a result, the development and use of solar energy systems may be unintentionally stunted when regulations have left the legal permissibility of solar energy systems ambiguous.[1]
Some local governments rely on special use exceptions to allow solar energy systems. Special use exceptions may provide local governments with the flexibility to regulate solar energy systems without permitting them by-right (for an ordinance permitting solar energy systems by-right see Allow Solar Energy Systems and Wind Turbines by-Right). Special use exceptions allow certain uses, if stipulated conditions are met and the zoning board or commission approves the use. Drafting these ordinances requires local governments to identify the zones in which solar energy systems may be permitted and the specific criteria homeowners must prove before being granted a special use permit to install a solar energy system.[2] In addition, these ordinances often set forth specifications for the solar energy system and whether a variance should be granted for height, setbacks, and other zoning requirements.
Ordinances may include a definition of solar energy system, but should make sure that such definition does not discourage installation.[3] Battery storage should also be mentioned in solar energy system definitions.[4] Definitions should emphasize the system’s size, height, and permitted coverage levels.[5] Local governments should be aware that because solar technology is still evolving, they should make sure the ordinance accommodates changes.[6] Finally, the angles at which solar panels are positioned are site-specific.[7] Consequently, ordinances should be conscious of the correct tilt.[8]
EFFECTS
Solar energy is more accessible to everyday consumers than ever before because arrays are more affordable through decreased production and marketing costs and tax incentives encouraging taxpayers to install solar energy systems.[9] “Conspicuous silence” by local governments on solar permissions can be a significant hindrance to solar energy use and expansion at the local level.[10]
Establishing zoning regulations that accommodate solar arrays encourages efficient land development,[11] and adequate special use exceptions can spark local solar energy markets.[12] Special use permitting can be a practical first step for promoting solar energy systems in the local development process (for an ordinance permitting solar energy systems by-right see Allow Solar Energy Systems and Wind Turbines by-Right).[13] Placing solar energy systems on developed land eliminates costs and saves resources consumed by solar arrays on undeveloped land.[14] Additionally, installing solar energy systems on developed land mitigates rural concerns of solar farms taking over agricultural space.[15] Installing solar energy systems on undeveloped rural land may also harm wildlife habitats or farming activities (for ordinances protecting wildlife habitats see Chapter 1.3 Sensitive Lands and Wildlife Habitats).[16] Choosing developed land for solar energy structures also reduces stress on intact lands, and costs associated with urban development.[17] Other benefits of solar energy systems on developed land include use of otherwise underutilized land.[18] Finally, concerns local governments may have with merging solar energy and neighboring land uses can be potentially addressed by issuing special use exceptions (for ordinances addressing off-property shading and shading dispute resolution see Process to Resolve Tree Interference with Solar Access and Limiting Off Property Shading of Solar Energy Systems).[19]
EXAMPLES
Sioux City, IA
Sioux City’s Zoning Ordinances provide a comprehensive model of solar energy system regulation through explicit special exception standards. In Sioux City, all solar arrays are subject to basic standards, which must be satisfied in order to comply with the zoning code. Solar arrays are permitted to surpass predetermined height limitations in certain locations. However, other items cannot be constructed or installed to “appreciably shade” an off-property solar array.[20]
In addition to roof-mounted solar arrays, Sioux City zoning also explicitly sets unique standards for ground-mounted solar arrays, solar arrays covering carports and covered walkways, and addresses the removal or replacement of damaged solar arrays.[21] Ground-mounted solar arrays must be set back from property lines equal to the setback requirements established for detached accessory buildings.[22] For solar arrays covering carports and walkways, there must be at least eight feet of clearance under the carport or walkway, and the solar panels covering them must be set back in residential zones from the front of the property line as required for principal buildings.[23] Sioux City also requires solar arrays with plain and obvious damage to be removed or replaced within 60 days of when the damage occurred.[24]
To view the provision, see Sioux City, IA Zoning and Sign Code, §§ 25.03.050.1, 03.080.4(4)(b)-(d). (2015).
White Plains, NY
White Plains established standards permitting solar energy systems through variances and special exceptions. Solar arrays must be approved by the Design Review Board prior to installation to ensure quality and attractive designs.[25] One and two family homes may install a solar array without approval by the Board as long as the system does not need a variance, has a rated capacity of twelve kilowatts or less, and is mounted parallel to the roof surface or tilted with an eighteen inch gap or narrower between the module and the roof.[26] If a zoning application is denied, an applicant can appeal.[27] On appeal, the Board of Appeals upon an applicant’s requisite showing of difficulty or unnecessary hardship may grant a variance.[28] Solar energy systems that meet code requirements are also exempt from the height requirements placed on similar structures, but “only to the height necessary to accomplish the purpose they are intended to serve.”[29]
To view the provision, see White Plains, NY Zoning Ordinance, §§ 4.4.15.5, 4.4.21, 9.1, 10.3.5.2, 10.3.7 (2018).
ADDITIONAL EXAMPLES
Kent, CT Zoning Regulations, §§ 3132, 3332, 9140 (2018) (permitting residential grounded or angle-mounted solar arrays with height limitations).
Cambridge, MA Zoning Ordinance, § 22.63 (2017) (protecting publicly registered solar energy systems).
CITATIONS
[1] Jessica Bacher & John Nolon, Zoning for Solar Energy: Resource Guide, Pace Law School: Land Use Law Center https://perma.cc/C48G-FAYM (2015).
[2] Renewable Energy Ordinance Framework, Delaware Valley Regional Planning Commission, 10 https://perma.cc/C82L-SJYH (2015).
[3] Webinar Summary: Best Practices in Solar Planning & Zoning, SolSmart https://perma.cc/YJ6E-XYUE (2019).
[4] Megan Day, Best Practices in Zoning for Solar, National Renewable Energy Laboratory, https://perma.cc/2YEE-WGAC (April 17, 2017).
[5] Id.
[6] Id.
[7] See Mindy Goldstein et al., The Georgia Model Solar Zoning Ordinance Guide https://perma.cc/AMB8-3QQL (2018).
[8] Id.
[9] Troy A. Rule, Buying Power: Utility Dark Money and the Battle over Rooftop Solar, 5 LSU J. Energy L. & Resources 1, 3-4 https://perma.cc/N568-UUXE (2017); Galen Barbose and Naïm Darghouth, Tracking the Sun VII: The Installed Price of Residential and Non-Residential Photovoltaic Systems in the United States, Lawrence Berkeley National Laboratory https://perma.cc/2633-AY6X (2015).
[10] Day, supra note 4 (quoting Planning for Solar energy Briefing Papers, American Planning Association https://perma.cc/39HV-7AYC (2013)).
[11] Id.
[12] Renewable Energy Ordinance Framework, Delaware Valley Regional Planning Commission, Ch. 2 § 3 https://perma.cc/C82L-SJYH (2015).
[13] Goldstein, supra note 7, at 63.
[14] Id. at 66.
[15] Id. at 60.
[16] Id. at 66.
[17] Id. at 68.
[18] Id.
[19] Id. at 10-11.
[20] Sioux City, IA Zoning and Sign Code, § 25.03.050.1 (2015).
[21] Id. at § 25.03.080.4(4)(b)-(d).
[22] Id. at § 25.03.080.4(4)(b).
[23] Id. at § 25.03.080.4(4)(c).
[24] Id. at § § 25.03.080.4(4)(d).
[25] White Plains, NY Zoning Ordinance, §§ 4.4.21.2, 9.1 (2018).
[26] Id. at § 4.4.21.2.
[27] Id. at § 10.3.7.
[28] Id.
[29] Id. at § 4.4.15.5.