LEGAL AIDS AND IMPEDIMENTS TO SOLAR ACCESS
Energy Regulation
Professor Ahrens
:
Laurence L. Duncan
..
•
r.
Development of Solar Energy Legislation
The emergence of solar legislation by the Federal government has occurred only recently.
Senators Humphrey and Bible
1
in 1959 introduced legislation to authorize grants and the use
of Federal facilities for solar energy research and development
2
by private institutions.
The measure was not enacted.
The
space program, however, was to provide the only source of Federal
funds and emphasis in solar energy research between this legislative failure and the great flood of energy legislation after the
Arab oil embargo.
Solar energy received a budget of 1.2 million dollars in 1971
by the National Science Foundation.
In 1972 a study conducted by
NASA and the National Science Foundation projected an optimistic
future for the development of solar energy in meeting a signifi3
.
Yet, in relation to expendicant portion of U.S. energy needs.
tures for nuclear and coal research, the solar energy budget was
4
meager and insignificant.
The Arab oil embargo of 1973 and the accompanying public
debate and outcry over fuel price increases sparked a flurry of
legislative activity.
Solar energy, long ignored, began to
receive Congressional and public attention with the passage of
)
5
the Solar Heatihg and Cooling Act in 1974.
C,\
r. . .,
l•~f)· ..
! J ~ '·" ~
.~
....
The Act funded the
building of demonstration solar heating and cooling projects
throughout the country to increase public awareness and to empha6
size the potential and technical feasibility of solar energy.
7
Subsequently, the Energy Reorganization Act of 1974
was
passed; this measure established the goal of energy self-
a
sufficiency
and placed solar energy development together with
geothermal research under an administrator of the Energy Research
and Development Administration (ERDA), the agency established by
9
the Act to carry out its objectives.
On the heels of the Energy
Reorganization Act was the Solar Energy Research, Development and
10
Demonstration Act of 1974.
The Act omitted the heating and
11
cooling of buildings
to avoid conflict with the previously
12
enacted Solar Heating and Cooling Act.
The Solar Energy Research, Development and Demonstration Act
l
created the Solar Energy Coordination and Management Project,
13
which was to function within ERDA.
This new body was to examine
14
the energy resources of the nation,
undertake research and
development in the technical problems of commercial solar energy
15
use
and establish a nationwide system for the gathering and
16
Additionally, the Solar
dissemination of solar information.
Energy Research Institute was formed to undertake broad action
in regard to repearch, development and other related areas of
17
•
interest.
The last maJor piece of implementing legislation for
solar energy was the Federal Nonnuclear Energy Research and
18
Development Act of 1974.
The Act's purpose was to bring
about increased use of alternative renewable fuels through
19
conservation and technological development
and provide finan20
cial incentives by grants and loans.
II.
Common Law Aids and Impediments to Solar Access
Assuming that a homeowner wishes to install either a pass1ve
21
or active solar device
on his horne, the paramount concern must
be access to the sun.
Once access is obtained, the continual
maintenance of exposure to the sun then becomes critical.
Corn-
prehensive Federal legislation and innovative technological
developments are of little value if common law and public legal
devices constitute an effective barrier to solar energy.
A.
Doctrine of Ancient Lights
A common notion among the general public is that every
person is entitled to access to the sun, but quite the contrary
is true under common law principles.
The Doctrine of Ancient
Lights, developed in England in the 1830's, provided that the
landowner was entitled to access to fresh air and light for the
>
reasonable use and enjoyment of his land.
This was permissible
only if the light, though possible passing over a neighbor's land,
3
22
had been interrupted for a specified period of years.
This
23
doctrine was first rejected in the United States in 1838
and
received the final death blow in 1959 in Fountainbleau Hotel
24
Corp. v. Forty-Five Twenty-Five, Inc.
In Fountainbleau the
court stated that "No American decision has been cited ... in
which it has been held that - in the absence of some contractual
or statutory obligation - a landowner has a legal right to the
free flow of light and air across the adjoining land of his
25
neighbor. "
The rejection of the Doctrine of Ancient Lights was due to
a long-standing fear of the courts that the doctrine would inhibit
26
development on adjoining tracts of land.
The feeling at present
among observers of the solar law environment is that the doctrine
will not be revived by the judiciary unless given the mandate to
27
do so by legislative action.
B.
Easement
An easement is an interest in land which gives the holder
of that interest limited rights or use in the land of another
28
person.
A consensual express easement executed by adjoining
landowners would appear to be quite beneficial to the potential
solar user.
Ye~
the express easement is not without practical
4
problems; such concerns as t?e
leng~h
of time of the easement,
expansion of the easement's coverage (a panel initially for
water heating then expanded for solar heating and cooling), the
cost of such an easement in a highly congested area and the number
of adjoining homeowners to be joined in the agreement will surface
29
with all of the attendant legal difficulties.
A route taken by many states has been to pass solar easement
legislation - that is, an easement to provide for and protect
solar access will be given the same legal status as any other
30
subject of an easement.
Commentators also have responded with
31
model easements to facilitate the prospective solar user.
In
summary, the homeowner in a secure neighborhood will benefit from
a privately negotiated easement, an option which appears more
viable as state legislation in this area increases.
C.
Restrictive Covenant
A restrictive covenant is a promise concern1ng land
32
A solar covenant
and is usually found in a deed restriction.
would benefit the solar user by burdening adjacent lots in that
vegetation would not be allowed to grow into a certain definable
33
As the most common
space required by the solar collector.
34
restrictive covenants usually
private controls on land use,
involve either Agreements made between neighbors or developed as
35
The best
part of an overall residential development scheme.
5
course in regard to a restrictive c?venant is the voluntary
negotiation between the two parties; the prospective solar user
in a neighborhood scheme may well have some difficulties.
In practical terms the restrictive covenants drafted by a
subdivision developer will have prescribed certain styles of
architecture and maximum building heights but probably failed,
in most cases, to consider the installation of solar equipment.
Several options present themselves to the homeowner in a subdivision which either does not allow solar collectors or has not
addressed the issue.
The individual first can 1gnore the res-
trictive covenant with all of the attendant legal consequences.
Secondly, the homeowner can seek to change the covenant in his
favor; however, in a large subdivision there may be objections
from neighbors several blocks away.
Third, the homeowner can
ask for construction of the covenant to determine if installation
of solar collectors is feasible.
-~-on
Last, a challenge may be mounted
'
36
If all else fails, the
the grounds of changed circumstances.
37
homeowner may have to fall back on obtaining a solar easement.
In general, restrictive covenants will be of little value
in securing solar access in established, well-developed neigh38
which would inhibit
borhoods.
Cities can prohibit new covenants
the use of solar devices, but it is unclear whether a city can
•
legislatively modify prior restrictive covenants.
The brightest
prospect for the homeowner in regard to restrictive covenants
is their use in a new subdivision in which the deeds contain
covenants to permit an guarantee the utilization of solar devices.
D.
Nuisance
A nuisance is "an invasion of interests in the use or
39
enjoyment of land";
the invasion must be intentional and unrea40
sonable so that it causes substantial harm.
The solar user's
interest in the theory of nuisance is to prevent the shading and
subsequent diminution of his active or passive solar device.
However, the general feeling among commentators and observers 1s
that few courts will provide relief to the plaintiff homeowner on
the basis of private nu1sance.
Of course, the option exists for
states and municipalities to declare the shading of a solar col41
lector to be a public nu1sance.
Yet there appears no great
42
movement to do so.
'
Nuisance may also come into play where adjacent horneowners protest the reflected light and heat of a rooftop solar
43
collector.
A protest on purely aesthetic grounds would probably
44
whereas the generation of glare and heat could
be insufficient,
45
well provide the basis for injunction or damages .
•
III.
Public Law Aids and Impediments to Solar Access
A.
Zoning
Zoning is the principal means by which the cities
and towns of the fifty states govern and coordinate their internal
structures and growth patterns.
Normally the states delegate the
power to zone to municipalities through legislative mandate.
A
traditional purpose in zoning has been to provide for adequate
light and air but only in terms of building heights, set-back,
46
or minimum lot size.
Thus, even though zoning has not directly
dealt with a right to sunlight, optimism still exists for zoning
in regard to solar access because of the wide scope and coverage
in a solar zoning scheme.
However, the deviations in zoning such
as variances and pre-existing non-conforming uses and prescribed
limitations such as building height and set-back can present
obstacles as formidable as restrictive covenants.
If zoning is
--
__ to play a substantive role in solar access, it must overcome
traditional limitations and become more innovative and responsive
47
to public needs.
If City X enacts a zoning ordinance with provisions affecting
building height, vegetation growth and restriction of solar col48
lector capacity,
follow.
.
constitutional challenges invariable will
A homeowner who can no longer grow a tall tree may allege
a Fifth Amendment taking.
Such a challenge should be able to be
0{){!7_.-_
overturned on the theory of social gain versus social loss
(the reduction in pollution and fossil fuels versus the right
to grow a particular tree), but the result will depend on the
49
peculiarities of each jurisdiction's laws.
Similarly, solar zoning ordinances will face varied
Fourteenth Amendment assaults based on due process and equal
protection.
Here the due process issue is to establish that
the zoning ordinance is "clearly arbitrary and unreasonable
and without substantial relation to public health, safety,
so
morals or general welfare."
Recently, in Village of Belle
51
Terre v. Boraas
the Supreme Court set a low equal protection
threshold for zoning by requiring a minimum retional basis
52
between the ordinance and the defined class of persons.
Yet
it requires little imagination as to the legal and political
whirlwinds which might be activated if a luxury high-rise apartment was to be constructed, thus diminishing the solar access of
rowhouses inhabited by low-income minority persons.
To inject new blood into the tired old body of traditional
zoning, commentators and scholars have proposed a number of
variations to secure solar access.
Among these are planned unit
53
development and permit systems.
·,.
•
The planned unit development (PUD) is a self-contained
living area with the housing usually located in clusters to
provide for large open spaces.
The.PUD concept is flexible
and breaks away from rigid uniformity as to lot size and setback.
The incorporation of solar access provisions such as
collector siting and vegetation control in the PUD has the
potential to be an excellent tool to secure solar access in
54
new residential and commercial building.
A permit system would involve the allocation of solar
access in a manner similar to the prior appropriation doctrine
in water law.
Such a system requires that the resource involved
be employed for a beneficial use and that such beneficial use
meet the requirement of specific criteria in a comprehensive
plan.
The owner of a small building in a high-rise zoning dis-
trict may find his permit for a solar collector denied due to a
non-beneficial use.
The disadvantages of such a system are the
possible inhibition of development on adjacent properties, the
requirement of specific enabling legislation and the required
administrative agency, and the possible promotion_of a first
come, first served mentality.
Further, municipal units will be
required to support the necessary administrative costs and may
55
have to pay compensation to avoid any taking problems.
B.
Transferable Development Rights
•
Transferable development rights
uncertainty in the area of solar access.
(TDR) are a virtual
The TDR would,
recognizing the bundle of rights in ownership, aid the landowner
who is unable to further develop due to zoning designed to prevent interference with the sun's rays.
The burdened landowner
can sell his development rights to another landowner who will be
able to develop at another location unhindered by restrictive
56
The advantage of such a system is that is
solar zoning.
works to balance public and private interests and softens the
conflict between regulation without compensation and the taking
57
of property.
Additionally, the plan would allow an orderly
development of solar capabilities in established, high urbanized
58
areas.
The disadvantages are that the city, if the plan is
59
to be successful, may become the purchaser of last resort
and
the whole process will require the mandate of the local legis50
lative body.
The importance of the TDR is not as a comprehensive solution but as merely one potential piece, particularly
61
for urban areas, in an overall solar development program.
C.
Building Codes
A building code is a collection of regulations which
define the materials, specifications, and standards relating to
a particular area of building construction such as plumbing or
electrical systems.
nificant
Building codes have not yet produced a s1g-
barri~r,
but there is a tremendous potential for
62
One characteristic of buildinhibiting full solar development.
ing codes which exacerbates the entire area is that of tremendous
0007~
11
diversity as to specifications, certification standards and
63
warranty programs.
There are three basic building codes within the United
States -
(1) Basic Building Code of the Building Officials and
Code Administrators;
(2)
the Uniform Building Code of the
International Conference of Building Officials; and (3)
the
Standard Building Code of the Southern Building Codes Conference.
The general deficiencies of these codes is a failure to
particularly define or address solar technology, the wide discretion given to implementing officials, and a lack of uniformity
64
Progress has begun with the development
among the three codes.
of a model code developed by the International Association of
Plumbing and Mechanical Officials.
Yet this document contains
significant flaws in regard to technical definitions and omis65
Significantly, in March, 1979,
sions in materials standards.
the Department of Energy published a model code specifically for
solar heating and cooling prepared by five building and code
66
administration organizations.
The course to be taken in this area is unclear.
Congress
could conceivable enact a federal code applicable to all the
states under the Commerce Clause, but political opposition
would
predicta~ly
be fierce.
The best short-time option appears
to be voluntary adoption of federal standards until there are
nationally recognized standards and-testing criteria.
This
would provide protection for the solar user, but a national
67
uniform standard would be absent.
The ultimate solution
will depend on market conditions for solar installations - a
weak, insignificant demand will, no doubt, allow building codes
to advance on their own very narrow paths to solar technology
applications.
D.
Interface with Public Utilities
Probably no one factor may have as much effect on solar
access by the ordinary consumer as that of the public utilities'
68
role in solar energy development.
Several basic concerns have
been commonly voiced in this area.
One problem with immediate
impac~
on the consumer is
69
that of rate and serv1ce discrimination by the public utilities,
justified in the name of fuel costs and recouping capital investments, against the mixed solar user (solar collector with a
utility back-up}.
Further, as the management of solar energy
becomes more aggressive, the consumers on a multi-user system
(several homes or a subdivision linked to a solar device} may
find themselves classified as a public utility under PUC jurisdiction with all of the attendant administrative paperwork and
.
certificate
~
filings for a
.
of public convenience and necess1ty.
70
The possible scenarios of utility participation in the
solar energy field run the gamut from full to mixed to total
71
non-involvement.
The issue undoubtedly will be resolved as
a matter of policy at the highest level; regardless of the outcome, the administrative rulings and public utility laws will
play a significant part in determining solar access for the
ordinary user.
IV.
The Role of Government in Solar Access
A.
Federal
The exact role of the Federal Government in obtaining
and securing solar access is uncertain.
Yet one aspect on which
there is some agreement is that the Federal Government should
72
not interfere in the land use policies of the states.
A report
73
concluded that Congress could,
by the American Bar Foundation
indeed, pass laws to guarantee solar access based on the national
defense or interstate commerce powers.
However, the historical
lack of federal intervention in this area and the political difficulties in delivering a federal standard seem to rule out such an
74
occurrence.
Congress has proposed legislation which would protect
75
access by scrutjnizirig state and local land use regulations.
Laws proposed in 1977 were of the "instant access" variety - no
state or local zoning regulation, law or ordinance could
76
permit interference with a solar device.
While this appears
to be an ease solution, the practical result would be a failure
to consider the uniqueness of each municipality's zoning pattern
and to generate considerable litigation.
A virtual Pandora's
box of legal, economic and political problems would be opened.
The function which the Federal Government, arguably, 1s best
able to perform is that of providing continued technical and
financial support and using such support to encourage state and
77
local laws for solar access.
B.
State and Local
The burden for instituting land-use measures to aid
solar legislation remains with the states and those municipalities
given the power to zone and, in some cases, condemn property by
their state constitutions.
State enactments have basically been
.....
either financial incentives and legal measures to assure access.
The financial incentives are diverse as to type and amount but
have assumed the following forms:
income tax credit and rebates,
sales tax exemptions, deductions from taxable income, low-interest
78
loans, and direct grants.
Legal and administrative steps have included consumer
.
.
lnformation services, certification and ·testing standards for
0 ·\n~'"'
>. "·
J. '
.
• :· \1 •
I
•
l
\.../
79
solar equipment and, of course, land-use measures.
As
examples, the programs of California and New Mexico illustrate
~
both sides of state legislation.
California has probably the most comprehensive solar
80
energy legislation of any state.·
A Solar Rights Act was
enacted to insure opportunities for access by the consumer;
solar easements have been included as part of the solar tax
credit, restrictive covenants which hinder solar development are
prohibited and legislative bodies cannot enact ordinances which
81
would prevent solar systems.
Yet the total legislative picture
has not been sunny.
California has suffered from inadequate
terms (in early legislation there was no distinction made between
active and passive systems) and faulty delegation df atithority
82
among various government agencies.
83
New Mexico enacted its own Solar Rights Act
declaring that
the right to sunlight was a property right; the act was based on
an analogy to water law's doctrines of prior appropriation and
beneficial use.
In terms of practical operation the system
required permits for the installation of solar devices.
The situ-
ation in New Mexico, however, has been as if there is no legislation at all.
The package has been soundly denounced because
key terms such as
11
beneficial use" are poorly defined, imple-
mentation of·laws would forestall development, and sunlight has
84
If any conclusion
shown itself to be legally unlike water.
16
can be drawn from these examples,
i~
is that artfully drawn and
effective legislation 1s a difficult but not impossible task.
Legislation like that of New Mexico, which is ill-conceived,
probably constitutes a more effective barrier to solar energy
than an absence of regulations.
Given well stated principles
85
and guidelines, the judiciary will uphold the legislature.
Though far down on the governmental ladder, municipalities
can have a significant impact on solar access.
Cities can choose
not to update building codes, enact solar zoning, or grant
variances for solar equipment.
When municipalities do choose to
act, however, the results are often sweeping.
For example, on December 12, 1978, San Diego County became
the first governmental body in the United States to mandate the
86
Ordinances
use of solar energy for water heating in new housing.
passed in Santa Clara County in 1980 mandated protection of solar
access in new subdivisions and solar water heater retrofitting of
87
existing homes on resale in 1983.
The possibili~ies are present
for the local governmental units to take charge but only if given
support from the State and Federal levels .
•
v.
Conclusion
Three elements converge to compose the total concept of
solar access:
market conditions, technology, and legal mechanisms.
Clearly no great quantity of consumers will purchase solar devices
if interest rates are exorbitantly high or if the devices available
are functionally inefficient.
milieu of factors
i~
What legal mechanisms do in this
to serve as either a positive or negative
counterbalance to prospective consumers.
A nationwide survey shows
the balance to be presently weighted against the consumer - interest
rates are high, technology is still improving, and legal mechanisms
have not sufficiently adapted to promote solar development.
The total picture, however, is not without promise.
A~great
number of states have taken initial steps in terms of financial
incentives and land-use provisions.
State legislation needs to be
fine-tuned, and common and public law devices will have to be
altered to fit the technological demands.
menting mechanism has emerged as dominant.
No single legal impleThe approach then for
states and cities will have to be a balanced approach, utilizing
each particular legal device in a specific, problem-oriented fashion.
Overall the courts have shown substantial deference to existing
laws, ordinances, concepts, etc.; however, given a stated legislative policy fo~·solar energy development, the courts have shown a
willingness to adapt.
The ball is now in the court of the legis-
lative bodies - federal, state, and local.
FOOTNOTES
1
S. 2318, 86th Cong., 1st Sess., 105 Cong. Rec. 1030 (1959).
2
Id.
3
Zillman and Deeny, Legal Aspects of Solar Energy Development,
25 Arizona St. L. J. 25, 45 (1976) [hereinafter cited as Zillman
and Deeny].
4
Id.
Solar energy research received 6.8 million dollars during
the period 1970-1973; in the meantime coal received 250 million
dollars and nuclear power received over one billion dollars.
Id.
5
42 U.S.C. §5501 (1974).
Zillman and Deeny note that "[f]or
better or worse, solar energy is now a part of the federal energy
bureaucracy. " Zillman and Deeny, supra note 3, at 4 9.
6
42 u.s. c. §.550l(b) (1974).
7
42 u.s. c. § 5801 (1974).
8
Id. at § 5801 (a).
-9
......
Id. at § 5812 (d).
10
Id. at § 5551.
-11
S. Rep. No. 1151, 93rd Cong., 2nd Sess. 4, reprinted in
[1974]
12
u.s.
Code Cong & Ad. News 5914, 5918.
42
u.s. c.
§ 5501 (1974).
42
u.s. c.
§ 5553 (Supp. IV 197 4) .
42
u.s. c.
§ 5533 (Supp. IV 1974).
13
14
15
-Id.
at § 5555 (a).
16
..
Id. at § 5557.
This was named the Solar Energy Informa-
Id.
tion Data Bank.
17
Id. at § 5559 (a).
-18
42 u.s.c. § 5901 . (Supp. IV 1974).
19
Id. at § 5904.
20
Id. at § 5906.
21 For the purposes of this discussion an "active" solar
·device will be considered to be a solar collector with a heat
transfer fluid.
A "passive" solar device consists of a series
of architectural principles, such as a skylight or greenhouse,
to maximize heating in the winter and minimize heat build-up in
the summer.
See Solar Energy in America's Future, Stanford Research
Institute, Division of Solar Energy, Energy Research and Development Administration, U.S. Dept. of Energy (March, 1977).
22
Comment, The Dawning of Solar Law, 29 Baylor L. Rev. 1013,
1014 (1976) .
The period of time to acquire such a right was
--.changed from the memory of man to a period of 27 years.
to Light Act, 1959, 7 & 8 Eliz. 2, C. 56 §§2, 3.
23
Parker v. Foote, 19 Wendell 309, 317 (N.Y. 1838).
Eisenstadt and Utton.
Id., Right
See
Solar Rights and Their Effect on Solar
Heating and Cooling, 16 Nat. Resources J. 363, 367 (1976)
after cited as Eisenstadt and Utton] .
24
'
181 F1a .} Supp. 74, 114 So. 2d 357 (1959).
25
Id. at
114 s. 2d at 359.
'
ooo.s~
[herein-
26
-·
Kraemer, Solar Law 132 (1978) [hereinafter cited as
Solar Law].
27
Id.
See Legal Barriers to Solar Heating and Cooling·of
Buildings, Environmental Law Institute, U.S. Dept. of Energy
(March, 1978)
[hereinafter cited as Legal Barriers].
Hayes,
Solar Access Law 185 ·(1979) [hereinafter cited as Hayes].
28
Restatement of ·Property§ 450 (1944).
29
Zillman and Deeny, supra note 3, at 35.
30
See State Solar Legislation ("1976), a pamphlet compiled
by the Solar Heating and Cooling Information Center as to current
state legislation in tax incentives and land use.
Also helpful is
the continuous reporting of such developments in the Solar Law
' .
Reporter.
31
Various innovative solar easements such as those for nonshade,
set-back, height, vertical angle, etc., have been constructed.
See
Burke and Lemons, Simplified Solar Easements·, 2 Solar L; Rep. 323
(1979).
A method to describe the protected area in a solar easement
can be found in Riordan and Hiller, Describing the Solar Space in
a Solar Easement, 2 Solar L. Rep. 299 (1979).
32
. . Legal Barriers,' supra note 27, at 15.
33
See. Sola·r Law, .supra not·e ~6 ,. ·at -64 for·
a:
Solar Shade Control Covenant.
34
")
•
5 Williams, American Planning Law 241-253
proposed Model
(1975).
See
American Planning Association, Protecting Solar Access for Residential Developments:
A Guidebook for Planning Officials (U.S.
ooor ~.
""...
.
Government Printing Office, 1979) for a discussion of private
land-use controls for solar access.
35
The rights and obligations in a neighborhood scheme are
referred to as "mutual equitable servitudes" or alternatively
"reciprocal negative easements.''
& Gitelman,
See generally Beuscher, Wright
Land Use 140 (1976).
36
Zillman and Deeny, supra note 3, at 36.
37
Hayes, supra note 27, at 197.
38
Legal Barriers, supra note 27, at 17.
See also Note,
Legal and Policy Conflicts Between Deed Covenants and Subsequently
Enacted zoning Ordinances, 24 Vand. L. R. 1031 (1971).
Prosser, Law of Torts 572 (4th ed. 1971).
40
Id. at 578.
41Solar Law, supra note 26, at 136.
See also Legal Barriers,
supra note 27, at 8.
42
A survey of State Solar Legislation and the Current Developrnents section of the Solar Law Reporter shows no trend in this
-direction.
43
A failure to take into account all of the relevant technical
characteristics of the solar device makes this a distinct and
increasing possibility.
Conversation with Dr. John D. Reichert,
Department of Electrical Engineering, Texas Tech University,
June 12, 1981.
44
Legal Barriers, supra note 27, at 9.
45
Id.
~
01'{\nrlJ\J ~)o. •. :
46
Eisenstadt and Utton,--Solar Rights and Their Effect on
solar Heating and Cooling 16 Nat. Resources J. 364, 384 (1976)
[hereinafter cited as Eisenstadt and Utton].
47
Zillman and Deeny, supra note 3, at 43.
One development
in proposed solar zoning is the definition of the space to be
protected from vegetation and adjacent buildings as the "collector
envelope."
Any type of solar zoning must by nature describe this
protected area.
See Goble,
Siting~Protection:
Access 2 Solar L. Rep. 25, 33 (1980).
Envelope Concepts:
A Note on Solar
Knowles and Berry, Solar
Moderate Density Applications 1 Solar L. Rep.
727 (1979).
48
See Solar Law, supra note 26, at 94-116 for several varieties
of model solar zoning ordinances.
49
See note 46 supra.
50
Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395
(1926).
51
416
u.s.
1 (1974).
52
See n. 1 supra at 381.
53
The variations from which to choose are often complex and
relatively untried.
The American Bar Foundation has drawn up a
recommendation for "overlay zoning" - the traditional zoning schemes
are overlaid with Mandatory Use, Affirmative Solar Use, and Other
Solar Use Distrjcts.
See Legal Barriers, supra note 27, at 33.
See also Model Solar Energy Laws (American Bar Foundation 1975).
.
Kraemer suggests that the
t~eory
of_eminent domain may have a
limited role in protecting and securing solar access.
Solar
Law, supra note 26, at 143-150.
54
Land-Use Barriers and Incentives to the Use of Solar
Energy 29, Solar Energy Research Institute, U.S. Dept. of Energy
(August, 1979) [hereinafter cited as Land-Use Barriers] .
55
Id. at 23-24.
56Legal Barriers, supra note 27, at 11-12. A broad discussion of transferable development rights is presented in Carmichael,
Transferable Development Rights as a Basis for Land
2 Florida St. L. Rev. 35 (1974).
U~e
Control,
Kraemer views the solar corn-
ponent of the TOR as the TSDR or Transferable Solar Development
Right. See Solar Law, supra note 26, at 164.
57
Note, A Legislative Approach to Solar Access:
Transferable
Development Rights, 13 New England L. Rev.
835, 868 (1978).
58
Id.
59
'
Legal Barriers, supra note 27, at 12.
60
See note 57 supra.
61Legal Barriers, supra note 27, at 12-13.
62
Legal Barriers; supra note 27, at 49-50.
63
Model Docurne.nt for Code Officials on Solar Heating and
Cooling of Buildings 51, u.s. Dept. of Energy (March 1979).
64
Legal Barriers, supra note 27, at 52-69.
65
~
•
See note 63 supra. A broad discussion of buildin·g codes
is contained in Standards, Building Codes and Certification Programs for Solar Technology Applications, Solar Energy Research
Institute, U.S. Dept. of Energy (July 1979).
66
Legal Barriers, supra note 27, at 63-64.
See also
National Bureau of Standards, Plan for the Development and Implementation of Standards of Solar Heating and Cooling Applications,
Energy Research and Development Administration,
u.s.
Dept. of
Energy (August 1976) .
67
Legal Barriers, supra note 27, at 63-64.
68
See Solar Energy in America's Future, Stanford Research
Institute, Energy Research and Development Administration (March
197 7) •
69
See Regulated Utilities and Solar Energy, Solar Energy
Research Institute, U.S. Dept. of Energy (June, 1979).
Sparrow,
Public Utility Involvement with Distributed Solar Systems
1 Solar L. Rep. 955 (1980).
Utility Rates and Service Policies as
Potential Barriers to the Market Penetration of Decentralized Solar
Technologies, Solar Energy Research Institute, U.S. Dept. of Energy
(August 1979).
The most substantive law review article on the
......
subject is contained in Dean & Miller, Utilities at the Dawn of a
Solar Age, 53 N. D~ L. Rev. 329 (1977).
70
See note 69 supra.
71In 1976 the California state PUC denied a permit to a
utility company to participate in a solar demonstration project.
Regulated Utilities and Solar Energy 32, Solar Energy Research
Institute,
~
u.s.·
Dept. of Energy (June, 1979).
Significant in any
utility participation in solar energy will be the antitrust
ooo.~~
implications.
See Impact of the Antitrust Laws on the Commer-
cialization of Solar Heating and Cooling, Solar Energy Research
Institute, U.S. Dept. of Energy (June, 1979).
72
Hayes, supra note 27, at 215-235.
73
Proceedings of the Workshop on Solar Energy and the Law
(an interim report of the American Bar Foundation on its project,
"Legal Issues Related to the Utilization of Solar Energy" (1975)).
74
Legal Barriers, supra note 27, at 22.
75
H. R. 12158, 94th Cong. 2d Sess., 122 Cong. Rec. 1379 (1976).
H. R. 11677, 94th Cong., 2d Sess., 122 Cong. Rec. 670 (1976).
76
S. 985, 95th tong., 1st Sess § 2(a) (1977).
H. R. 259, 95th
Cong . , 1st S e s s . § 2 (a) ( 19 7 7 ) .
77
Legal Barriers, note 27 supra, at 23.
78
Legal Barriers, note 27 supra, at 23.
A broad overview of
state financial incentives is contained in The Implementation of
State Solar Incentives:
A Preliminary Assessment.
Solar Energy
Research Institute, U.S. Dept. of Energy (January 1979).
See also
Legal and Institutional Implications of Providing Financial Incentives to Encourage the Development of Solar Technologies, Solar
Energy Research Institute, U.S. Dept. of Energy (July 1979).
79
The Solar Energy Research Institute has conducted a survey
of state land-use measures.
Incentives:
See The Implementation of State Solar
Land-Use Planning to Ensure Solar Access, ·solar Energy
Research Institute, U.S. Dept. of Energy (March 1979).
80
California has created a Central Energy Agency, appropriated
"j()nA
......... _
O'
....,.;
R & D money and provided loans for solar energy development.
Problems in the Administration of State Solar Legislation 15-16,
Solar Energy Research Institute, U.S. Dept. of Energy (July 1979).
81
Id.
82
Comment, Common Problems in Drafting State Solar Legislation 1 Solar L. Rep. 157, 159-176 (1979).
83
N. M. STAT. ANN. § 70-8-1 to 70-8-5.
84
Supra note 82, at 25-27.
85
Evidence of the judiciary following the legislature's lead
is found in two important examples in California and New York.
On
March 1,
1979, the Los Angeles Superior Court in Kraye v. Old Orchard Association (Civil Action No. C 209453) found invalid restrictive
covenants which prohibited rooftop installations which could be
seen from adjacent properties in the neighborhood.
The court
found that the covenant was contrary to the declared state policy
of encouraging the use of solar systems.
See 1 Solar L. Rep. 8
- (1979).
In New York on May 15, 1979, the Westchester County Supreme
Court overturned the refusal of a local zoning board of appeals to
grant a variance for a solar collector.
In Katz v. Bodkin (Index
No. 3312/79, Sup. Ct., Westchester Cty.) the court noted the stated
policies of the federal and state governments to promote and
encourage
sola~·energy
arid held the action of the zoning board of
appeals to be arbitrary and capricious.
(1980).
01)00:""',
lJ .
c.J.
w
See 1 Solar L. Rep.
925
86
Pulliam and Hedgecock, Local'Leadership for Solar Energy
2 Solar L. Rep. 57 {1980).
San Diego was farsighted enough to
draft a solar access ordinance and adopt a model building code.
Id.at 69.
The San Diego ordinance was opposed by architects, the
construction industry and labor.
The architects wanted more
comprehensive standards while the construction industry did not
want to be forced into such requirements.
Labor was concerned
about which particular sector would install the collectors.
at 65-66.
87
2 Solar L.
Rep. 473 {1980).
Id.
Vol. 2, No. 1
So!ar Law Reporter
33
- - - - - Lot Boundaries
Bu ildable olume
y
-----
Figure 3-A.
Collector Envelope:
Height limitations and setback requirements Cl·eat~ a " buildagle volume"
\ ithin which any structure can be located. The buildable volumes of adjacent
lot potentially cast determinable shadows on the solar lot. The area within
the buildable ~olumc of the solar lot that is not shJded by the buil abl
volume on adjacent lots is the "coll~ctor envelope" within which a collector
can be legally sited without being shaded by structures or po ntial
structure on adjacent lots.
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