Solar access rights might seem the brainchild of California’s former Governor Moonbeam Brown, but the notion has roots dating at least to the Doctrine of Ancient Lights that emerged in England in the 13th Century.
Under this doctrine, an owner of a building with windows had a negative easement entitling him to prevent an adjoining property owner from obstructing or obscuring the flow of light through the windows. England’s Prescription Act of 1832 created a statutory prescription for light.
As early as the 19th Century, the potential for conflict between solar access and planned urban density was recognized when an author noted that the Ancient Lights doctrine “can hardly be regarded as applicable to narrow lots in the new and growing cities [of America]; for the effect would be greatly to impair the value of vacant lots, or those having low buildings upon them, in the neighborhood of other buildings more than twenty years old.”1
At present, energy costs are relatively low in the U.S. compared to many countries. Whereas we might pay 6 cents per kw hour, in many European countries the same amount of energy would cost 25 cents. Because 25 cents is roughly equal to the production cost of photovoltaic power, even without government subsidies, the use of photovoltaic cells is more common in European countries. Several countries — Germany, Spain and Japan among them — further sweeten the deal with government subsidies of up to 50 cents per kw hour. As energy costs increase, however, solar access rights will become a more valued commodity.
Not surprisingly, California generates more solar power than any other state in the nation. A much-publicized California case is among several now foreshadowing (pun intended) our arrival at the age of competing green interests. The Sunnyvale case arose before California in 2006 had reached 23,000 photovoltaic operating systems representing about 180 MW of electric capacity. California’s new goal is to reach 3,000 MW capacity by 2016 — imagine how fiercely green interests will be competing in eight years.
In 1997, a Sunnyvale couple planted some redwood trees in their yard. In 2001, their neighbor installed a 10-kw solar system on his roof, complying with setback requirements that enabled him to rely upon California’s Solar Shade Control Act of 19792 (SSCA) to ask his neighbors to trim or chop down some of their redwoods, by then 15–20 feet tall.
The SSCA is applicable when trees cast a shadow greater than 10% over the collector absorption area of a solar panel between 10 a.m. and 2 p.m. The SSCA is not applicable to trees planted before solar panel installation, but is applicable to post-installation tree growth. Under the SSCA, after a solar owner has given the offending neighbor 30 days’ notice, he can file a complaint with the local prosecutor.3
The solar panel owner did file a complaint and the Santa Clara County District Attorney’s Office thereafter prosecuted his neighbors. The court declined to fine the offending tree owners the $1,000 per day spelled out in the SSCA, but it did order them to remove some of the trees.
The Sunnyvale case raises the issue of fairness. Fairness to tree owners aside, conservation principles and arithmetic would seem to favor solar power owners: even the Sierra Club admits that while an average tree only sequesters 14 pounds of carbon dioxide a year, the average solar system can offset that in just a few days.4
Yet, solar power isn’t always suitable and a building’s surroundings can make it a suboptimal energy source. “Shadowing has a big impact on photovoltaic cells. With photovoltaic cells, the current is additive. If you shade one cell out of 36, it basically cuts off the entire output,” explains David Trione, founder of Sound Power, Inc.
“We are quite candid about this. If a prospective client has power lines, trees or surrounding buildings shading a planned cell location, we recommend they do not hire us to do the job, even if we lose out on a $30,000 job,” says Trione.
A rooftop is generally the most cost-effective location for solar modules on a home, but other locations are sometimes a better choice. Trione recalls a client on Stuart Island in San Juan County who wanted to install photovoltaic cells.
“There was no way solar panels on his roof would have worked because he was right next door to someone with acres of tall trees,” he said. “We trimmed branches off of one of his own trees and strapped the solar modules onto the tree with a big U-bolt. We were concerned about high winds, but that was 10 years ago and they are still fine.”
It also is possible to install solar modules offsite and run wires to the site or erect them on steel poles near the site but above the treeline, although these remedies can increase costs substantially. Given these alternatives, doesn’t the real question become who foots the bill. Should the Sunnyvale solar-power owner have been obligated to spend the money to mount his cells on posts above his neighbors’ treetops?
Washington faces green choices similar to California’s. At present, Chapter 64.04 RCW, enacted in 1979, encourages the use of solar-energy systems. RCW § 64.04.160 provides that solar easements “may only be created by written agreement.” RCW § 64.04.170 provides that in an action for interference with a solar easement, in addition to ordering an injunction, the court may award actual damages — as measured by increased energy charges — for the duration of the interference, costs of the system and reasonable attorney fees and costs.
In January, Rep. Hans Dunshee (D-44, Everett), introduced HB 2546, which did not get out of committee. The bill called for an amendment to chapter 64.04 to create an implied solar easement for property owners erecting and operating a solar energy system on their property on or after January 1, 2009. Under HB 2546, an owner would have to document the existence and operation of the solar energy system in a recorded instrument before commencing an action for interference with the implied solar easement.
Dunshee’s intention was never to privilege solar cells over trees; rather, he anticipates solar power access conflicts in high-density areas where one building may block a lower building’s solar access. Dunshee plans to introduce a revised bill next year.
Stu Halson, a lobbyist for the Washington Land Title Association who testified against HB 2546, saw recording problems with the bill as drafted. “It would give the dominant estate an interest in the servient estate, which would be recorded for the dominant estate, but not for the servient estate and, therefore, would not show up in the chain of title, making the insuring of that title impossible,” he said. “It also creates takings problems.”
Speaking for himself and not for the association, Halson proposed revisiting the issue, believing there should be a way “to create incentives without messing up recordation or getting into a quagmire over takings issues.” One possibility, he conjectures, would be to shift the tax burden. “Perhaps an assessor could segregate a portion of an assessment to inure to the benefit of the property owner of the servient estate,” he suggested.
Other legal battles over alternative sustainable interests will develop as concerns about global climate change and energy costs increase. They may change the way we think of easement, nuisance and boundary law.
“Municipalities need to plan for this,” reflects Aaron Adelstein, executive director of the Green Built® Program of the Master Builder’s Association for King and Snohomish counties. “We value increased density as a way to mitigate urban sprawl, but denser development conflicts with solar power technology. It’s not always going to be a win-win situation.”
Adelstein, who works with both landscape architects and solar installation specialists, believes the best shot at fully addressing the nexus between environmental concerns and how we use space is to discuss possible conflicts before they arise. He advocates increased dialogue among city planners, developers, builders and others as a way to anticipate best practices and solutions and to preempt bitter disputes among competing interests.
Although some states have enacted laws preventing homeowner associations from unreasonably restricting the installation of solar energy systems, Washington’s Condominium Act does not contain such restrictions. The conflict between an association’s aesthetic code and solar access rights, or the competing needs of various owners seeking to act upon solar access, may be another source of future litigation.
Wind rights also present competing green interests. No governmental agency in the U.S. regulates windmill spacing and there is little law on wind rights, although larger wind-power projects must go through an impact assessment and are subject to public comment. Washington, fifth in the nation this year in wind power installed (1,163 MW),5 may well see future suits between lessors and lessees of wind rights, or between parties with competing windmills.
Thanks to the following attorneys for their thoughtful comments on the King County Bar Real Estate listserv: John Tomlinson, David Leen, Allen Sakai, Rebecca Wiess and Gretchen Valentine.
Michelle Branigan, Ph.D., J.D., is a solo practitioner with a practice emphasizing real property law. She has a longstanding interest in sustainability issues, is a former certified Ecobroker, and used to have a bumper sticker saying, “A rind is a terrible thing to waste.”
1 John Bouvier, A Law Dictionary, Adapted to the Constitution and Laws of the United States, 1856. In a seminal Florida Court of Appeals case, Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 257 (Fla. Ct. App. 1959), the Eden Roc Hotel sought a TRO when it realized that neighboring Fontainebleau Hotel’s imminent construction of an addition would cast a shadow over its cabana. Eden Roc relied on the Doctrine of Ancient Lights to support its position. The court stated that the U.S. had “unanimously repudiated” the doctrine. This was not entirely true. A 1982 Wisconsin case, Prah v. Maretti, 321 N.W. 182 (1982), rejected Fontainebleau and held that a party may bring a nuisance action for interference with solar access.
2 Sections 25980–25986 of the California Public Resources Code.
3 See Gergacz, “Legal Aspects of Solar Energy: Easements for Sunlight and Individual Solar Energy Use,” 10 B.C. Envtl. Aff. L. Rev. 1 (1982), for a good discussion of private versus public prosecution of solar-access rights and takings issues. In an earlier California case, the prosecutor’s office determined that a passive home did not fall within the parameters of the SSCA and declined to prosecute. The homeowners then sued under three private causes of action, private nuisance under the SSCA and negligent infliction of emotional distress. The court held that a passive home did not meet the SSCA’s definition of a “solar collector” and that blockage of sunlight was not a public nuisance. Sher v. Leiderman, 181 Cal. App. 3d 867 (1986).
4 “I’m a big tree fan. They increase property values and provide shade and cooling. But it’s actually better for the environment to put solar on your roof than to plant a tree. … On average a tree only sequesters 14 pounds of carbon dioxide a year and a solar electric system offsets that every two or three days.” Kurt Newick, chair of the Global Warming Committee, Loma Prieta Chapter of the Sierra Club (as quoted in Kerry Trueman blog, February 12, 2008).
5 American Wind Energy Association’s Annual Rankings Report, April 8, 2008.
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