M. Driggers
Energy Law Fall 2013
Sundamental Rights
“Sun-damental Rights”: Solar Easements, Solar Rights and Right to Dry Statutes in the United
States
Abstract
Harnessing the sun’s energy for lighting, heat and drying presents vast potential for
individuals to save money and protect the environment while still enjoying a comfortable life.
However, the right to use solar power is contentious; the rights to harness the sun for light, heat
and electricity is often at odds with the rights of others to use their land freely. While the sun
may continue to shine, its benefits can be blocked, both physically by shadows and figuratively
by the absence of laws and regulations to protect an individual’s unobstructed access to sun light
or solar access.
Solar rights were guaranteed in Ancient Rome through solar easements and this idea
continued into England where common law, and eventually statutes, guaranteed individuals
unobstructed light. The American system focused on new development and as a result, the idea
of solar rights and solar easements for existing landowners did not take hold. Courts have held
that individuals to not have an absolute right to unobstructed sunlight. This same approach is
prevalent in local zoning laws and community association restrictive covenants that prohibit the
use of solar panels and also clotheslines. With the advent of solar power as an abundant
renewable energy source, energy policies have shifted to advancing solar energy. As such,
building codes, zoning regulations and restrictive covenants should begin to yield to guaranteed
access to sunlight. This paper will discuss the history and current status of solar rights in the
United States and address the possible approaches that can be taken at state and local levels to
find a balance between the right to access solar potential and the rights of others to the
unrestricted use and enjoyment of their land.
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I. Introduction
While it’s still free, I’m gonna soak up the sun, before it goes out on me. Sheryl Crow, Soak up
the Sun.
Harnessing the sun’s vast energy for light, heat, drying and electricity presents an
opportunity for individuals to protect the environment and save money while still enjoying a
comfortable life. However, access to solar power is contentious; the right to harness the sun for
light, heat and electricity is often at odds with the rights of others to use their land freely. Solar
access can be impeded, physically by a structure blocking sunlight (shadows) or figuratively by
statutes, regulations and restrictive covenants. The history of the sun as an energy source, the
right to solar access, the current status of solar access rights in the United States and proposed
approaches to guarantee solar rights will be addressed in turn.
A. The Sun as an Energy Source
For billions of years the sun has produced energy. This energy is from the sun’s rays, or
solar radiation, that reaches the Earth. This energy can be converted into other forms of energy,
such as heat and electricity. U.S. EIA, Energy Explained, Renewable Sources, Solar. For
thousands of years, man has heated buildings with solar energy and designed building with
access to sunshine for heating and light. In the Seventh Century B.C. magnifying glass was used
to make fire and by the Third Century Greeks and Romans advanced this technology and used
the sun and mirrors to light torches for religious ceremonies. Archimedes was said to have used a
solar concentrator during war time to reflect the sun and burn approaching enemy ships, a.
Donald N. Zillman & Raymond Deeny, Legal Aspects of Solar Energy Development, 1976
ARIZ. ST. L.J. 25, 26. The sun’s rays were used for heating as well. Greek city planning
documents from the Fifth Century B.C.E. indicate that houses were laid out in a north-south
orientation to utilize solar heating. Melvin M. Eisenstadt, Access to Solar Energy: The Problem
and Its Current Status, 22 NAT. RESOURCES J. 21, 21 (1982). Roman baths were designed to
use the sun’s warmth in the Sixth Century A.D. In 1790 Swiss Scientist Horace de Saussure built
the world’s first solar collector which was used in the 1830’s by the British astronomer John
Herschel to absorb sunlight in order to cook food during an expedition to Africa. By 1954 the
sunlight was being converted into electricity. The first solar cell capable of converting the sun’s
energy into power to run electrical equipment was created by Bell Telephone Laboratory
scientists in the United States. U.S. Department of Energy, Energy Efficiency and Renewable
Energy, The History of Solar.
Thanks to modern technology there are a multitude of uses for the sun’s rays. Solar as
thermal energy can heat water or air used in homes, building and pools or spaces in homes.
Passive solar design refers to the process of designing buildings to collect, store, and distribute
solar energy as heat. These types of building absorb sunlight through south-facing windows, and
use dark-colored, dense materials in the building to act as thermal mass to store sunlight as solar
heat. Thermal energy from the sun can also be used to heat fluids to high temperatures in order
to operate a turbine and generate electricity. Solar energy can also be converted into electricity
by the use of photo-voltaic (PV) cells that or solar cells that change sunlight into electricity.
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Mass.gov, Executive Office of Energy and Environmental Affairs, Renewable Energy, About
Solar Energy.
Solar energy is incredibly abundant and has unlimited nearly unlimited potential. 20 days
of sunshine contains more energy than the world’s entire supply of coal, oil, and natural gas.
Union of Concerned Scientists, Clean Energy, Our Energy Choices, Renewable Energy. Because
solar energy can be sustained indefinitely and is inexhaustible, it is a type of renewable energy.
Renewable energy makes up about 9% of U.S. Energy Consumption; of that solar power makes
up 2%. US EIA Energy Explained, Renewable Sources.
The main benefits of solar energy are that solar energy systems do not produce air
pollutants or carbon dioxide; and solar energy use has a minimal impact on the environment. The
carbon footprint used to manufacture a solar panel is quickly offset by its use. The value to the
consumer is apparent as well. In the past 10 years the installed cost for solar PV has dropped
30% Mass.gov, Executive Office of Energy and Environmental Affairs, Renewable Energy,
About Solar EnergyThe limitation of solar energy is that sunlight varies according to location,
time of the day, the time of year and ambient weather conditions. US EIA Energy Explained,
Renewable Sources. There are some inherent dangers in the use of solar energy. Toxic materials
and chemicals used in the manufacturing process of photovoltaic cells (PV), which convert
sunlight into direct current electricity. Furthermore, some solar thermal systems use potentially
hazardous fluids to transfer heat.
B. Background Regarding Solar Rights, The Rights to Lights
From Roman bathhouses to present day solar cells, there has been a competition to
harness the sun’s energy for heating, light and now for generating electricity. This is sometimes
described as the “solar access issue,” where solar collectors are shaded by neighboring structures
or vegetation. Colleen Kettles, A COMPREHENSIVE REVIEW OF SOLAR ACCESS LAW IN THE
UNITED STATES, SOLAR AMERICA BOARD FOR CODES AND STANDARDS REPORT, 1 (2008). To
settle disputes in the right to sunlight struggle, governments have traditionally stepped in to
protect an individual’s right to access this abundant natural resource. Ancient Romans protected
the right to solar heat and light and enforced solar rights through court decrees, prescriptive
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easements and even government allocations. Sarah C. Bronin, Solar Rights, 89 BOSTON
UNIVERSITY LAW REVIEW 1217 (2009). . By the Sixth Century A.D. Justinian Code granted
individuals “sun rights” to allow them access to the sun for their sunrooms. An inscription on the
Temple of Apollo at Pompeii described a regulation where the local government had to
compensate property owners because a temple blocked their sunlight. Gail Boyer Hayes, Solar
Access Law: Protecting Access to Sunlight For Solar Energy Systems 14 (1979).
English Law created a doctrine called Ancient Lights. This doctrine referred to a negative
easement where the owner/occupier of an adjoining structure was prevented from building or
erecting anything that would obstruct the light flowing into a dominant home, or the home that
was enjoying the sunlight. Common Law in England dictated that if a person opened a window
in his home, he had a right to the flow of light passing though. If the window had been opened
long enough, it was an ancient light and the law protected it. Kettles, 2. Eventually a statutory
prescription was created by The Prescription Act of 1832, which set out a 20 year time frame for
a prescriptive easement in the flow of sunlight. Legislation.gov.uk, Prescription Act of 1832.
Many countries adopted a similar approach. Japanese courts recognize a "right to light" not only
for interiors through windows but for the entire house and garden. Successful “sunshine suits”
have yielded Japanese homeowners financial relief if their home is shaded by construction on
another lot, with courts often citing to health concerns as the justification for protecting solar
access. Japanese Courts Back the "Right to Sunshine," N.Y. Times, July 18, 1976, at 10, col. 1.
C. Solar Rights in the United States
The Ancient Lights doctrine has been repudiated in the United States. The Court of
Appeals in Florida in 1959 formally rejected the doctrine in Fontainebleau case, which became
the leading case regarding solar rights. (Fontainebleau Hotel Corp. V. Forty-five Twenty-Five,
Inc., 114 So. 2d 357 Fla. Ct. App. 1959). The Fontainebleau hotel in Miami Beach proposed the
construction of a14 story addition. The Eden Roc hotel, adjacent to the Fontainebleau sought an
injunction because they claimed that during certain months from 2pm to sunset, the addition’s
shadow would extend over their swimming pool and sunbathing areas and would block the light
and air on the beach in front of the hotel. The Trial court had initially ruled for the Eden Roc
with the rationale that no person had the right to use his property to injure another. The District
Court rejected that idea. The Court said that a landowner does not have any legal right to the free
flow of air and light, across his neighbor’s land. As a result, there could be no nuisance damages,
or injunctive relief. The Fontainebleau eventually built this addition and a large shadow extends
over the Eden Roc many afternoons. A majority of United States jurisdictions followed the
rationale of the Fontainebleau court in holding that there was no right to solar access. Sher v.
Leiderman, 181 Cal. App. 3d 867 (Cal. Ct. App. 1986). Wisconsin and New Hampshire held out
and both ruled that nuisance cases could be brought for obstruction of sunlight when it interfered
with solar collectors, but not passive home building. Prah v. Maretti, 321 N.W.2d 182 (Wisc.
1982); Tenn v. 889 Associates, Ltd. (N.H. 1985).
As the interest in solar energy has escalated, many scholars have suggested that the
Fontainebleau approach be rejected in favor of using water or oil and mineral laws to develop a
similar doctrine for solar access. The law of fugacious minerals applied to sunlight would
recognize some rights other than first to capture rights in order to prevent waste. Rather than the
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owner of one parcel blocking the light of another without using it, the sun’s radiation should be
considered a common pool of sunlight, apportioned among several property owners. Another
approach would be to use the rule of capture, and view sunlight as appurtenant to the real
property on to which it falls, and to adhere to the idea that a landowner owns the ground beneath
him and air above him. Glenn L. Reitze, A Solar Rights Zoning Guarantee: Seeking New Law in
Old Concepts, 3 WASHINGTON UNIV. QUARTERLY, 1976.
There is a new sun rising in solar access law. Beginning in the 1970s and 1980s states
began to enact their own statutes that addressed solar access. These statutes will be discussed in
the next section.
II. The Solar Panel Saga
“Sometimes the Sun Shines on Other People’s Houses and not mine…somehow the sun keeps
shining on you while I struggle to get mine.” Jason Mraz, the Sunshine Song.
The major hurdle standing between United States residents and their access to residential
solar power are covenants, conditions and restrictions (“CC&Rs”) that are a part of common
interest developments and are said to run with the land. These developments are made up of
property owners tied together by the use of common property, common interest and a
constitution by which members are governed. Stephen E. Barton & Carol Silverman, History and
Structure of the Common Interest Community. About 60 million Americans live in the over 300
million common interest developments. These common interest developments will be referred to
as Homeowners Associations (“HOAs”) for purposes of this paper. Homeowner’s associations
have banned or severely limited the installation of solar panels within their communities. Ray
Henry, Homeowner’s Associations and Solar Panels Don’t Always Mix, HUFFINGTON POST.
Homeowner’s Associations cite concerns with aesthetics or safety. Many fear that the solar
panels will look out of place or lower home values. Kate Galbraith, Homeowners Associations:
The Enemy of Solar?, NEW YORK TIMES. Likewise, existing solar energy system owners face
potential challenges when growing trees or new structures on a neighbor’s property shade their
solar collectors. North Carolina Solar Center, Database of State Incentives for Renewables &
Efficiency, DSIRE Solar Policy Guide: A Resource for State Policymakers.
A. Solar Rights Laws and Solar Easements
State Legislatures have stepped in and attempted to provide solar energy users protection
to install or keep solar panels by passing solar access laws. Such laws are protections that allow
consumers to access sunlight, prevent shading of solar systems and limit the ability of HOAs and
local governments to prevent the installation of solar energy systems. Forty states and the US
Virgin Islands have some form of solar access law, which could include solar easement
provisions, solar rights provisions, or a combination of the two. The most common type of state
level solar access law is the solar easement. A solar easement allows the owner of a solar energy
system to secure rights to continued access to sunlight from an adjacent property owner that
could be developing his building, home or foliage in a way that would restrict his system’s
access to sunlight. A solar rights law protects residents or businesses by limiting or prohibiting
private restrictions on solar energy system installations.
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These state protections are incredibly important because disputes between homeowners
and HOAs typically sway in favor of HOAs because courts are highly deferential to a HOA
board’s decisions, applying a form of the business judgment rules. Courts may justify their ruling
because a family joined the HOA and acquiesced to its rules. In a recent case even a jury found
in favor of an HOA over an owner who wanted to install solar panels on his property. Tesoro Del
Valle Master Homeowners Ass’n v. Griffin, 133 Cal. Rptr. 3d 167 (Cal. Ct. App. 2011).
Moreover, even with these statutory protections in place, a homeowner is not free to install solar
panels because courts have often had trouble interpreting the vague language in the legislation.
Many disputes between homeowners and HOAs do not make it to court because of the expense
involved in litigation. Evan Rosenthal, Letting the Sunshine In: Protecting Residential Access to
Solar Energy in Common Interest Developments, 40 FLA. ST. U.L. REV. 995 (2013).
III. Clotheslines and The Right to Dry
After a while we took in the clothes, nobody said very much. Just some old wild shirts and a
couple pairs of pants Which nobody really wanted to touch…Then they started to take back their
clothes, Hang 'em on the line. . .The next day everybody got up. Seein' if the clothes were dry.
Bob Dylan, Clothes Line
Drying clothes on a clothesline rather than using an electric tumble dryer uses the sun’s
heat as well as some amount of wind energy. A discussion regarding the right to dry clothes is
included because it is one way to harness the sun’s energy and reduce electricity consumption.
Clothes dryers were once a symbol of economic success, as evidenced by General
Electric’s advertising campaign, with Ronald Reagan as spokesman, to encourage Americans to
“live better electrically.” Drying for Freedom: Our Rights are Hanging on the Line. Now with
the increased knowledge of global warming, dryers akin to gas guzzling SUV’s, symbols of a
disregard for the environment. Many people now choose to dry their clothes, or at least a portion
of their laundry traditionally, on a line or inside their homes. According to the Association of
Home Appliance Manufacturers, in 2005 there were 88 million dryers in the United States. These
dryers consume 1,079 KWH of energy per household and result in over 2,000 pounds of CO2
emission per year. Caitlin Carpenter, As an Energy-saver, the Clothesline Makes a Comeback.
Those in opposition of clotheslines believe that clotheslines are unsightly, block views,
lower property values and are a strangulation risk, although there are no widely disseminated
clothesline fatality statistics. Home Owner Associations and communities with restrictive
covenants worry that prospective buyers may believe that neighbors are too poor to afford dryers
due to the aforementioned sentiment that tumble dryers and electric appliances indicate status
and wealth. Elisabeth Salemme, Fighting for the Right to Dry, TIME. One HOA lobby group
claimed the sight of washing lines could reduce neighboring property values by up to 15%. But
the National Association of Realtors says it's not possible to put a value on this effect. Tom
Geogheghan, The Fight Against Clothesline Bans, BBC MAGAZINE. Some opponents of
clotheslines believe that women hanging clothes on a line symbolizes them eschewing feminism.
This disagreement can become incredibly personal. In 2008 a Verona Mississippi man was
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murdered by his neighbor because he continued to use a clothesline despite the neighbor’s
annoyance with the practice. Geogheghan.
In the other side of the line, there are that who believe that line drying saves money, is
nostalgic, and is better for the environment. Clothes dryer make up over 6% of household energy
consumption. One statistic notes that if one in three Americans started line drying for five
months of the year, 2.2m tons of CO2 will have been prevented from entering the atmosphere by
2020.Geogheghan. These individuals believe that they have a right to use their property as they
wish. Drying clothes on a line saves a household on average of twenty-five dollars a month. The
denim company, Levi Strauss, has sided with the pro-clothesline camp and encouraged line
drying. The company released statistics that show pair of Levi’s 501 jeans that revealed 60
percent of the climate impact is created during the consumer phase with 80 percent of that due to
energy-intensive drying. Levis Strauss & Company, Life Cycle of a Jean.
In many communities hanging clothes on a line to dry may be a form of civil
disobedience. One man entangled in the drama even asserted that, “they’ll just have to pry these
clothespins out of my cold dead hands” Drying for Freedom: Our Rights are Hanging on the
Line. Tens of millions of people in the United States live where homeowners associations or
communities ban clotheslines. Jon Howland, Clothesline Bans Void in 19 States, SIGHTLINE
DAILY. These may be outright bans or de facto bans that strictly limit clotheslines be out of sight.
As a result of significant pressure by consumers, homeowners and environmentalists, At
present, 19 states have some sort of right to dry laws. Four states have specific laws aimed at
allowing individuals to line dry clothing. The other states have incorporated right to dry statutes
into their solar rights statutes by broadly including the terms solar radiation as a source for
heating or cooling and solar energy device or system.
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State
Law
Florida
Florida Statute 163.04
Colorado
Hawaii
Colorado Common Interest Ownership Act, Section
38-33.3-107.7
Senate Bill 1338
Maine
Maine Revised Statute Title 33, Chapter 28-A
Maryland
Senate Bill 224
Vermont
Vermont Statutes, Title 27, Chapter 5
Oregon
Chapter 105, Section 105.880
Arizona
Arizona Statutes, Article 3, Chapter 4, Section 33-439
California
California Civil Code Section 707-714.5
Illinois
Homeowners’ Energy Policy Statement Act
Indiana
Indiana Code 32-23-4
Louisiana
House Bill 751
Massachusetts
Nevada
Massachusetts General Laws, Chapter 184, Section
23C
Nevada Revises Statutes, Chapter 111, Section 239
New Mexico
New Mexico Solar Rights Act
North Carolina
Chapter 22B, Article 3
Texas
House Bill 362
Virginia
2010 Code of Virginia, Title 67, Chapter 7
Wisconsin
Chapter 236, Section 292(2)
Utah
Utah Code, Title 10, Chapter 9a, Section 610
From Jon Howland, Clothesline Bans Void in 19 States, SIGHTLINE DAILY
Opponents of right to dry laws equate them with a state intrusion in homeowner rights
and the right to private contracts. Likewise, they argue that individuals who chose to live in their
communities agree to be bound by the rules or have tacitly consented.
IV. Proposed Solutions
Here comes the sun, here comes the sun. And I say it's all right Sun, sun, sun, here it comes. The
Beatles, Here Comes the Sun
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A multitude of solutions exist to protect a homeowner’s right to enjoy and utilize the sun
to its full potential. Cultural and legal approaches are discussed below.
A. Educating HOA’s Regarding Solar Panels and solar Rights
HOAs may simply need to be educated not only regarding state laws and rules allowing
solar panels but also about the benefits of allowing solar panels in their neighborhoods. Solar
panels have been shown to increase property values. For the average installation, the authors
found that solar panels added a $20,194 premium to the sales price of the house based on repeat
sales data (houses were in the mid-$500,000 range). Ashlea Ebeling, How Much Do Solar Panles
Boost Home Sale Prices, Forbes. Property values of solar homes are increased for a variety of
reasons. They decrease electric bills making them desirable to potential home buyers and come
with subsidies including state and federal tax credits. Additionally, homeowners are becoming
increasingly aware of their carbon footprint and the impact that they have on global warming. A
community that welcomes solar panels is increasingly becoming a desirable place to live rather
than a neighborhood of “Al Gores.” As the acceptance of solar panels increases, likely HOA
acceptance of them will as well.
As evidenced by the bans still in place in solar rights states, HOAs are not fully informed
regarding state prohibitions on solar panel restrictions. HOAs may also have bans in their
regulation that are not enforced because the time and logistics required make it nearly impossible
to amend CCRs. Often HOAs attempt to get around solar laws and restrict the installation of
solar panels by requiring permitting and approval or setting out specifications for the number,
size and even color of solar panels.
One suggested approach is that solar panel companies can take it upon themselves to
educate HOAs about the advantages of solar panels and the applicable state laws. While this may
have an initial cost, the return on investment would be significant and solar panel companies and
installers and contractors have an incentive to do so. In fact, many companies have websites
directed to consumers about the cost and environmental savings of solar panels. These efforts
could be directed to home owners associations as well. For example, a brochure, fact book, etc.
could be sent to the President of an HOA or even to homeowners and potential customers to pass
on to their HOAs. Many environmental and renewable energy groups have already taken up this
task and have begun to inform homeowners of their solar rights.
B. Model Clothesline Regulations for HOAs
If HOAs are provided some alternative ideas regarding clotheslines, they may be more
willing to allow them in their communities. Perhaps HOA CCRs could regulate the location (e.g.
backyard only) and type of clothesline used (specified height or rotary line). Such concessions
may go a long way in encouraging community associations to eliminate their clotheslines bans.
Furthermore, HOAs should be educated by environmental groups and concerned citizens
about not only the laws that are enacted in 19 states and counting, but the cost and environmental
savings that will be passed on to homeowners. These concerns may be important to an individual
looking to buy a home. Some recently developed common interest communities laud their
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“greenness” but have outright bans on clotheslines of any form. Right to dry statutes in states
could also specify a reasonable restriction and allow those, but no outright or de facto clothesline
bans.
C. A Cultural Approach to Conservation
HOAs and legislators will respond to their constituents. With this in mind, perhaps the
cultural approach to solar panels and especially clotheslines needs to be the focus. The
Documentary, Drying for Freedom, was moderately successful in educating the public about the
advantages of line drying and the right to dry, especially with the advent of file sharing sites like
Youtube. Until A-list stars, or their maids, begin putting clotheslines in the backyards of palatial
estates, a public awareness video similar to the One Bulb campaign could be beneficial, insert a
catchy title like “Letting it All Hang Out,” add some stars in an ad campaign and laundry might
be blowing in the wind in suburbs everywhere.
A clever advertising approach by Levi Strauss & Company encouraged costumers to
submit their ideas for aesthetically pleasing clotheslines and drying racks, offering a $10,000
prize, while also raising awareness about right to dry issues. Companies participating in
campaigns of this sort will increase awareness and acceptance of clotheslines.
D. Local Zoning Approaches
Local governments may have the authority to adopt zoning ordinance that will ensure
solar access. This zoning could include solar access ordinances that contain building height
restrictions to avoid shading solar panels. Guidelines regarding street orientation could be
enacted as well. Zoning that prohibits clotheslines outright should be eliminated in favor of
reasonable restrictions.
E. Judicial Activism
Courts faced with interpreting solar access laws heavily scrutinize the sometimes vague
language. The task can be even more difficult since solar rights laws are relatively new.
Rosenthal, 4. The more familiar courts are with these statutes and solar rights disputes, the easier
it will be for them to interpret the statutes as the legislators intended. Justices typically rule in
favor of homeowners and rely on the business purpose rule or are reluctant to interfere in
contractual disputes. Now when courts are tasked with determining competing solar issues, they
are armed with public policy, because of statutes and renewable portfolio standards, will be more
likely to allow them to rule on the side of a homeowner who wishes to install a solar panel or use
a clothesline.
F. Legislative Action
Legislators have a multitude of environmental and economic reasons to encourage solar
panels use by enacting solar rights laws that encourage active and passive use of solar power. For
example, solar panels and passive use of the sun for heating, light and drying clothing may
reduce the demand for foreign oil sources and fossil fuels. Solar panels on homes could also
lessen the impact of global warming. The environmental offset of a home solar system are
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significant. A 5kW residential solar energy system in a 25 year period will offset: 255,000
pounds of CO2; 1,000 lbs of NOx(smog); 830 lbs of SO2 (acid rain); and 400,000 miles driven
by an average car. http://www.mercurysolarsystems.com/content/whysolar/carbonfootprint.asp.
Solar panel use has the ability to eliminate peak power grid problems that are often present on
hot summer days when consumers use their air-conditioning nonstop. Brownouts, when utilities
cannot supply the amount of powers customers demand, are reduced by solar power systems that
produce maximum outputs in the afternoons when the sun shines the brightest and heat is the
most intense. Rik DeGunther ,Solar Power Your Home For Dummies, 2nd Edition.
Legislators need to move towards putting solar rights that guarantee the right to solar
energy systems, into law where only easements are allowed or no such rights exist. Some states
may allow voluntary solar easements between individuals but such schemes are limited in
effectiveness. Solar energy system owners have no guarantee with a neighbor or subsequent
purchase or an adjoining lot. A solar rights law scheme is more effective. North Carolina Solar
Center, Database of State Incentives for Renewables & Efficiency, DSIRE Solar Policy Guide: A
Resource for State Policymakers. If legislators continue with an easement scheme, they should
create a filing system with a county clerk so that an individual who wishes to install a solar
energy system can put in a permit, give other a time to object (e.g. 60 days) and then allow that
filing to become an enforceable easement.
Existing solar rights laws may need to be revamped in order to be effective. An effective
solar rights law should define the type of solar energy systems that seek to be protected. Vague
or absent provisions in solar rights laws have led to lawsuits and delays in a number of states. At
best, a solar rights statute should prevent CCRs from prohibiting solar energy equipment
generally. Alternatively, if it merely prohibits unreasonable bans on solar panel or solar energy
systems, it must clearly define what an “unreasonable” would be in order to be effective (e.g.
restrictions on color cannot result in a reduction in efficiency). When solar right laws are
amended, legislators should include right to dry statutes within the language, by including
clotheslines as a solar energy system. The alternative would be to propose a model right to dry
statute, clearly stating the environmental and economic purpose of right to dry laws, prohibiting
unreasonable bans and using clear language.
Another solution would be to add language in the statute that makes litigation between a
homeowner and an HOA easier to bring. A provision that awards attorney’s fees or allows
expedited mediation in such cases could encourage homeowners to bring suit, and HOAs will
react accordingly if they feel the statute has some teeth.
V. Conclusion
The fight for “sun-damental” rights has gained momentum. More citizens of restricted
communities are demanding that they be allowed to access one of the most abundant energy
sources. The acceptance of renewable energy has increased in light of information about global
warming, the decrease in costs of solar panels in light of new technology and the desire to save
money. However, to bridge the gap between the time when all consumers rely on renewable
energy, legislators, community members, and concerned citizens in general should demand that
an individual’s right to access the sun for heat and light not be infringed.
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