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JOSRE 兩Vol . 2 兩No.1–2010
‘‘Hey, Your Tree Is Shading My
Solar Panels’’: California’s Solar
Shade Control Act
Authors Scott Anders, Taylor Day, and Carolyn Adi Kuduk
Abstract This paper explores laws adopted in the United States at the state level
to ensure that a property owner has access to direct sunlight. In
particular, it focuses on laws designed to prohibit vegetation on adjacent
properties from shading solar energy equipment, such as photovoltaics
or solar water heating collectors. The paper compares the laws adopted
by states and focuses on California’s Solar Shade Control Act as a model
for other states. It provides a detailed analysis of the provisions of the
Act and a review of cases brought under it.
In the late 1970s and early 1980s as a result of the oil crisis, there was increased
interest in promoting alternative energy sources to reduce dependence on foreign
oil. As a result, many states adopted laws to encourage or promote renewable
energy technologies, including solar energy. Among these laws were financial
incentives, such as tax credits and rebates, and, in the case of solar energy,
provisions to protect a landowner’s right to sunlight and provisions to prohibit
deed restrictions such as covenants and conditions from unduly discriminating
against solar energy devices. In recent years, there has been renewed interest in
solar energy. More than 30 states have adopted financial incentive programs,
innovative financing programs, or other regulatory mechanisms that encourage the
use of solar energy.
1
As a result, solar energy installation rates have increased
significantly in recent years. For example, installed capacity of photovoltaics in
the United States increased steadily from 4 megawatts (MW) in 2000 to 435 MW
in 2009—a more than 100-fold increase.
2
Over 65% of the installed photovoltaics capacity in the U.S. is located in
California. The state has been a leader in promoting solar energy since 1976,
when it began to provide financial incentives for investment in solar energy
technologies. One legacy of California’s early interest in solar energy is a series
of laws designed to protect a consumer’s right to install and operate solar energy
technology on a home or business, including access to sunlight, or solar access.
Although California’s solar energy laws have been around for nearly thirty years,
we now examine this groundbreaking legislation for three reasons. First,
consumers and businesses often misunderstand the provisions and application of
these laws. Thus, this paper is intended in part to provide solar energy users and
neighboring tree and shrub owners more information about the content and
application of California’s solar laws. Second, given the significant financial
incentives available for solar technologies and the possibility of property-assessed
362 兩Anders, Day, and Kuduk
clean energy (‘‘PACE’’) financing programs
3
around the country, it is likely that
the number of operating solar energy systems will increase dramatically. Thus, it
is reasonable to expect that the number of solar access questions will also increase.
Third, given the relative paucity of solar shading laws in the U.S., it is likely that
other states will consider adding similar provisions to their statutes as the number
of solar energy systems increase around the country. California’s Solar Shade
Control Act of 1978 can serve as a model for states that are developing similar
laws.
This paper provides a brief comparison of solar access laws adopted by states in
the U.S. to demonstrate how few solar shading laws exist. There is a detailed
discussion of the Act, including key provisions, along with detail on how and to
whom the Act applies. It also lists statutory criteria included in the Act, and there
is a review of California case law under the Act. The paper also includes an
Appendix that provides other informative resources related to the Act, along with
the full text of the Act.
兩Solar Access Laws
In concept, solar access laws spring from deep historical roots. The Romans,
whose architecture was designed to take advantage of the sun’s light and heat,
likely were the first to codify protections of a homeowners’ access to sunlight.
5
Similarly, the doctrine of ancient lights protected landowners’ access to sunlight
as far back as seventeenth century Great Britain. Modern day solar access laws
vary by state and have many unique features, but can be grouped into four general
categories:
䡲Prohibition of Conditions, Covenants, and Restrictions: These laws
protect against prohibitive covenants, conditions, and restrictions,
generally limiting a common interest homeowner’s association or local
government from undue restrictions on installation of solar energy. Many
states have adopted some version of a solar rights law.
䡲Solar Easements: These laws typically allow a landowner to enter into
an agreement with adjacent landowner to ensure that sunlight reaches the
property. Like solar rights laws, many states have adopted solar easement
laws. Because obtaining an easement is a bilateral negotiation, it is not
clear how effectively these provisions promote solar energy.
6
䡲Local Zoning Authority to Adopt Solar Access Regulations: Several
states permit local zoning authorities to adopt rules and regulations in the
permitting and zoning process that preserve solar access, including
consideration for shading from other structures or vegetation.
䡲Solar Shading: These laws ensure that the performance of a solar energy
device will not be compromised by shade from vegetation on adjoining
properties.
‘‘Hey, Your Tree Is Shading My Solar Panels’’ 兩363
JOSRE 兩Vol . 2 兩No.1–2010
Solar Access Laws in the States
More than 30 states have adopted legislation that provides one or more of the
above solar protections. Exhibit 1 shows the states that have some form of
statutory solar protection, which type of law they have adopted, and the building
sector that is covered by the law. A significant majority of states have either a
law limiting the use of covenants, conditions, and restrictions that restrict use of
solar energy or solar easement law—or both. Seven states—Massachusetts,
Minnesota, New Mexico, New York, Oregon, Rhode Island, and Tennessee—also
have statutory provisions that allow the local zoning authority to adopt regulations
to protect access to sunlight, including consideration for shading from vegetation
and structures. Two states—California and Wisconsin—have statutes that provide
specific if limited relief for shading from vegetation on neighboring properties.
This paper is mainly concerned with laws that specifically address shading from
neighboring vegetation. Other than California’s Solar Shade Control Act, which
will be discussed in detail below, Wisconsin is the only other state that has a law
that provides specific, if limited, protections for solar energy system owners to
protect against shading from adjacent properties. It states that ‘‘[a]ny structure that
is constructed or vegetative growth that occurs on adjoining or nearby property
after a solar energy system...or a wind energy system...is installed on any property,
that interferes with the functioning of the solar or wind energy system, is
considered to be a private nuisance.’’
7
There is an important distinction between the solar shade laws and those that
provide for local authorities to adopt solar access rules and regulations. These
provisions are not as specific or strong as the specific solar shading laws of
California and Wisconsin. They may or may not include restrictions on shading
from vegetation and do not necessarily result in local rules—they simply provide
for the option to develop such rules. For example, Minnesota law permits
municipalities to ‘‘by ordinance regulate on the earth’s surface, in the air space
above the surface...’’, including ‘‘access to direct sunlight for solar energy
systems’’ as defined in the law.
8
Oregon law also provides that ‘‘[c]ounty
governing bodies may adopt and implement solar access ordinances. The
ordinances shall provide and protect to the extent feasible solar access to the south
face of buildings during solar heating hours, taking into account latitude,
topography, microclimate, existing development, existing vegetation and planned
uses and densities’’[emphasis added].
9
It is not clear how many local
municipalities have adopted rules and regulations that would address shading from
structures or vegetation. Such a survey is beyond the purview of this paper and
is an interesting area for further investigation.
The absence of solar shading is particularly evident among the states with the
most installed photovoltaics capacity. Among the top 10 states, only California
has adopted a solar shading law, although Oregon’s local zoning authority
provision specifically mentions existing vegetation (Exhibit 2).
10
364 兩Anders, Day, and Kuduk
Exhibit 1 兩States with Solar Access Laws
State
Prohibition
of CC&Rs
a
Solar
Easement
Local Zoning
Authority
Solar Shade
Control
Alaska X
Arizona X
California X X X
Colorado X X
Delaware X
Florida X X
Georgia X
Hawaii X
Idaho X
Indiana X X
Iowa X X
Kansas X
Kentucky X
Louisiana X
Maine X X
Maryland X X
Massachusetts X X X
Minnesota X X X
Missouri X
Montana X
Nebraska X
Nevada X X
New Hampshire X
New Jersey X X
New Mexico X X X
New York X X
North Carolina X
North Dakota X
Ohio X
Oregon X X X
Rhode Island X X
Tennessee X X
Utah X X
Ver mo nt X
Virginia X X
‘‘Hey, Your Tree Is Shading My Solar Panels’’ 兩365
JOSRE 兩Vol . 2 兩No.1–2010
Exhibit 1 兩(continued)
States with Solar Access Laws
State
Prohibition
of CC&Rs
a
Solar
Easement
Local Zoning
Authority
Solar Shade
Control
Washington X X
Wisconsin X X X
Note:
a
Conditions, Covenants, and Restrictions.
Exhibit 2 兩States with the Most Installed Photovoltaics
Percentage of
Total Installed
PV Capacity
Prohibition
of CC&Rs
a
Solar
Easement
Local Zoning
Authority
Solar Shade
Control
California 67% X X X
New Jersey 9% X X
Colorado 5% X X
Nevada 4% X X
Arizona 3% X
New York 3% X X
Hawaii 2% X
Connecticut 1%
Oregon 1% X X X
Massachusetts 1% X X X
All Other States 5%
Note:
a
Conditions, Covenants, and Restrictions.
兩California’s Solar Shade Control Act
California’s interest in solar access laws began in 1973, when the U.S. faced an
energy crisis on multiple fronts, including an inadequate electricity supply,
climbing fuel prices, and an oil embargo. This crisis, in conjunction with a second
that occurred in 1979–1980, increased consumer and government interest in
resource conservation and alternative energy technologies. Consequently, in 1978
California passed legislation, among other energy-related measures, that provided
financial incentives for consumers and businesses to invest in solar energy
technologies, as well as Assembly Bill 2321, the Solar Shade Control Act. The
366 兩Anders, Day, and Kuduk
Act was later amended in 2008 after the story of two Santa Clara County residents
being criminally prosecuted and convicted under the Act for letting their redwood
trees cast shade on a neighbor’s solar panels received national attention.
11
This section of the paper examines Sections 25980–25986 of the California Public
Resources Code, known as the Solar Shade Control Act (hereinafter ‘‘the Act’’),
and reviews lawsuits brought under the Act. Through the Act, which was enacted
in 1978 and later amended in 2008, the legislature sought to balance the desired
effects of planting trees and shrubs for shade and visual appeal with the desire
for increased use of solar energy devices, whose performance can be hindered by
shade from nearby vegetation. The Act provides limited protection to solar energy
system owners from shading caused by trees and shrubs on adjacent properties.
Generally speaking, the Act prohibits a property owner from allowing trees or
shrubs to shade an existing solar energy system installed on a neighboring
property, provided the shading trees or shrubs were planted after the solar
collecting device was installed. The Act includes the following key provisions,
which also could serve as key provisions for other states and levels of government
seeking to develop similar laws.
California’s Policy Intent
Section 25980 provides a policy rationale for the Act: ‘‘It is the policy of the state
to promote all feasible means of energy conservation and all feasible uses of
alternative energy supply sources.’’ This section also encourages the planting of
trees and shrubs to create shade and moderate ambient air temperature. But with
passage of the Act, the legislature recognized that circumstances may exist ‘‘in
which the need for widespread use of alternative energy devices, such as solar
collectors, requires specific and limited controls on trees and shrubs’’ when plant
shading interferes with the use of solar systems on adjacent properties.
Definition of ‘‘Solar Collector’’
Section 25981(a) of the Act provides the statutory definition of a solar collector
as ‘‘a fixed device, structure, or part of a device or structure ... that is used
primarily to transform solar energy into thermal, chemical, or electrical energy.’’
In 2008, the Act was amended to exclude from its protection any solar device or
structure that is ‘‘designed and intended to offset more than the building’s
electricity demand.’’
12
Under the Act, a solar collector is to be used as part of a
system that makes use of solar energy for water heating, space heating or cooling,
or power generation.
13
Based on this statutory definition, the following common
solar energy systems would be considered ‘‘solar collectors’’: photovoltaics, solar
water heating for use in buildings, solar water heating for space heating, and solar
pool heating.
The Act does not specify whether a residential structure designed to take
advantage of the sun’s light and warmth, sometimes referred to as a passive solar
home, would be defined as a solar collector by the Act. However, this question
was answered in Sher v. Leiderman, in which the California Court of Appeal held
that a passive solar home would not meet the definition of a ‘‘solar collector,’’ as
‘‘Hey, Your Tree Is Shading My Solar Panels’’ 兩367
JOSRE 兩Vol . 2 兩No.1–2010
defined in Section 25981.
14
The court reasoned that statutory language defining a
solar collector was not intended to accord protection to passive systems.
Consequently, the Sher court held that exclusively passive solar homes are not
protected from shading by the Solar Shade Control Act.
Confusion over what systems are ‘‘active’’ or ‘‘passive’’ under the Act is
compounded by system-specific terminology. For example, there are two main
types of solar water heating systems: active and passive.Active systems use pumps
and sensors to control the flow of water into and out of the collector. Passive
systems have no moving parts and rely on existing water pressure from the home’s
plumbing and convection to move water through the collector. But, because both
active and passive solar water heating systems are used primarily to convert solar
energy into hot water, they are ‘‘solar collectors’’ under the Act, and entitled to
protections from shading thereunder.
Installation Requirements
A solar collector is defined under Section 25981(a) as including only those devices
or structures fixed on the roof of a building. However, if ‘‘a solar collector cannot
be installed on the roof of [a] building receiving the energy due to inappropriate
roofing material, slope of the roof, structural shading, or orientation of the
building,’’ the Act promulgates that a solar collector can instead be installed on
the ground.
Whether affixed to the roof or the ground, Section 25981(d) provides that the
Act’s protections only apply to solar collectors, as defined above, which have been
installed and comply with all local building and setback regulations. In therelevant
part, the Act specifies that solar collectors must ‘‘be set back not less than five
feet from the property line, and not less than 10 feet above the ground. A collector
may be less than 10 feet in height, only if, in addition to the five-foot set back,
the solar collector is set back three times the amount lowered.’’ Thus, it is possible
that a solar energy system that meets Section 25981’s definition of a solar collector
may be installed in a manner that violates the Section 25981(d) setback
requirements. In such a case, the solar energy system would not be protected by
the provisions of the Act.
Optional Notice Prior to Installation
The Act’s amendment authorizes property owners contemplating solar collector
installations to provide notice to affected neighbors of a proposed solar collector
installation. While this is not required, Section 25982.1(a) states that the owner
of a property where a solar collector is proposed to be installed may provide, no
more than sixty days prior to its installation, a written notice by certified mail to
the owners of the affected property using a specified form. The notice would state,
in part, the property owner’s contact information, the specific location of where
the solar collector will be installed on the property, and the proposed installation
date of the solar collector. A copy of the specified form to be used is provided in
Section 25982.1(a) and included here in the Appendix.
368 兩Anders, Day, and Kuduk
Threshold for Violation
Specifically, Section 25982 of the Act prohibits certain tree owners from planting
or allowing a newly planted tree or shrub to cast a shadow over more than 10%
of a solar collector on a neighboring property at any one time during the hours
of 10:00
AM
and 2:00
PM
. However, the Act’s amendment exempts all trees and
shrubs planted prior to the time of the installation of a solar collector. In other
words, the Act allows trees and shrubs to grow and shade solar panels without
penalty as long as they predate the neighboring solar collector.
Who is Liable Under the Act?
Section 25983 provides that ‘‘the person who maintains or permits the tree or
shrub to be maintained’’ can be liable if they violate the Act. Specifically, the Act
states that those people who fail to ‘‘remove or alter the tree or shrub after
receiving a written notice from the owner or agent of the affected solar collector
requesting compliance with the requirements’’ of the Act can be held responsible
for violations of the Act.
Penalties for Violation
Prior to its amendment in 2008, violators of the Act could be criminally prosecuted
and convicted of maintaining a public nuisance for allowing their trees to shade
neighboring solar collectors. California legislators acted to change this punishment
after the story of two Santa Clara County residents being criminally convicted and
ordered to prune their redwood trees sparked national debate.
15
After the Act’s
amendment, violations are no longer considered criminal. Instead, Section 25983
provides that violations of Section 25982 now constitute a private nuisance, as
defined in Section 3481 of the California Civil Code. It should be noted, however,
that the 2008 amendment is not retroactive. In other words, any criminal
convictions issued under the prior Act still stand.
Procedures for Seeking Protection Under the Act
Before the Act’s amendment became effective on January 1, 2009, solar collector
owners seeking to enforce the Act had to have their claims prosecuted by a district
attorney or other prosecutor. This entailed demonstrating to the prosecutor that a
violation occurred, having the prosecutor deliver a thirty-day abatement notice to
the offending tree or shrub owner to cure the violation, and finally prosecuting
this person if the violation was not abated within thirty days.
Now that violations of the Act are no longer criminally prosecuted, the solar
collector owner is solely responsible for enforcing the protections afforded by the
Act. This is essentially a two-step process. First, the affected solar collector owner
must provide the tree or shrub owner written notice requesting compliance with
the requirements of Section 25982. Second, if the tree or shrub owner fails to
comply with the written notice requesting compliance with the Act, the affected
solar collector owner may bring a private nuisance suit under the Act against the
negligent person to remedy the solar shading.
‘‘Hey, Your Tree Is Shading My Solar Panels’’ 兩369
JOSRE 兩Vol . 2 兩No.1–2010
Exemptions for Certain Property Owners
The Act both explicitly and implicitly exempts certain property owners and certain
trees and shrubs from the Act. Indeed, the solar collector owner’s right to sunlight
is not absolute.
Exemption for Existing Trees or Shrubs
Section 25984(a) states that the Act does not apply to trees or shrubs planted prior
to the installation of a solar collector. Therefore, trees or shrubs planted before a
solar collector is installed and later grow to cast a shadow over more than 10%
of the solar collector are completely exempt from the Act.
Exemption for Timberland and Agricultural Land
Section 25984(b) of the Act specifically exempts all trees planted, grown, or
harvested on timberland or on land devoted to the production of commercial
agricultural crops.
16
Exemption for Replacement Trees
17
Section 25984(c) provides an exemption for trees or shrubs planted to replace
trees or shrubs that had been growing prior to the installation of a solar collector.
Consequently, if a tree planted prior to the installation of the solar collector dies,
or is removed for the protection of public health, safety, or the environment, and
is subsequently replaced, the replacement tree is exempt from the Act, even if it
shades the solar collector in a way that would otherwise violate the Act.
Exemption for Trees Subject to a Local Ordinance
Section 25984(d) exempts from the provisions of the Act any ‘‘tree or shrub that
is subject to a city or country ordinance.’’
Exemption for Municipalities
Section 25985(a) of the Act allows any city or unincorporated areas of a county
to adopt an ordinance exempting itself from the Act.
18
This exemption applies
only to trees planted and maintained by the municipality itself, and not to trees
owned by private citizens. Zipperer v. County of Santa Clara, 133 Cal. App. 4th
1013 (2005), discussed below, further discusses this exemption.
Exemption for Passive Systems
Section 25986 permits owners of passive solar systems that would cast a shadow
over a solar collector on an adjacent property to seek an exemption from the Act.
To grant an exemption, the court must find that the net energy savings from the
passive solar system would exceed those of the shaded solar collector.
As discussed above, the statute does not clearly define what solar energy systems
or structures constitute a ‘‘passive or natural solar heating system or cooling
370 兩Anders, Day, and Kuduk
system’’ and are exempt from the Act’s protections. A passive or natural solar
heating or cooling system could be interpreted to mean a structure or building
that is designed to use orientation, thermal mass, and shading for passive heating
or cooling. Alternatively, a passive or natural solar heating or cooling system could
be interpreted to mean deciduous trees that would block summer sunlight but
permit winter sunlight to enter a building. Trees or shrubs used as passive or
natural solar heating or cooling systems that shade an adjacent active solar system
may be exempt from the provisions of the Act, provided the court finds that the
passive system provides greater net energy savings than the adjacent solar
collector.
19
兩How the Provisions Affect Each Party
We have grouped the key provisions of the Act to demonstrate the threshold for
the solar collector owner to demonstrate a violation under the Act, and the tree
or shrub owner to determine if the alleged violation is actionable.
Solar Collector Owner
The following provides a listing of the statutory conditions necessary to
demonstrate that a tree or shrub on an adjacent property is shading a solar collector
in a way that violates the Act. The solar collector owner must be able to answer
the following questions in the affirmative to be protected by the Act:
䡲Was the tree or shrub in question planted after the solar collector’s
installation?
䡲Was the solar collector installed pursuant to Section 25981(d)’s setback
requirements?
䡲Does the solar collector meet the statutory definition of a ‘‘solar
collector’’ provided in Section 25981?
䡲Does the neighboring tree or shrub shade more than 10% of the solar
collector between 10:00
AM
and 2:00
PM
local standard time?
Tree or Shrub Owner
The following provides a list of the statutory conditions necessary to determine
if a property or tree owner is violating the Act. There may be no violation of the
Act if the tree or shrub owner can answer in the negative to any of the following
questions:
䡲Does the tree or shrub shade more than 10% of the solar collector
between 10:00
AM
and 2:00
PM
local standard time?
䡲Was the tree or shrub in question planted after the solar collector was
installed?
䡲Did the solar collector owner, or their agent, provide written notice
requesting compliance with the requirements of Section 25982?
‘‘Hey, Your Tree Is Shading My Solar Panels’’ 兩371
JOSRE 兩Vol . 2 兩No.1–2010
Further, there may be no violation of the Act if the tree or shrub owner also can
answer any of the following questions in the affirmative:
䡲Was the solar collector designed and intended to offset more than the
building’s electricity demand?
䡲Is the tree or shrub in question owned by a municipality that has passed
an ordinance exempting itself from the Act?
䡲Is the tree or shrub subject to a city or county ordinance?
䡲Is the tree or shrub in question growing on land designated as timberland
or agricultural land?
䡲Are the trees or shrubs in question part of a passive cooling and heating
strategy in which net energy savings from the passive solar system are
demonstrably greater than those of the shaded solar collector?
兩Cases Relating to the Act
Though relatively few cases have examined the Solar Shade Control Act since its
enactment in 1978, the following cases provide insight into the Act’s interpretation
and legal argumentation:
䡲California v. Bissett, No. BB727255 (Cal. Sup. Ct. Santa Clara County
Mar. 28, 2008).
䡲Sher v. Leiderman, 181 Cal. App. 3d 867 (1986).
䡲Zipperer v. County of Santa Clara, 133 Cal. App. 4th 1013 (2005).
䡲Kucera v. Lizza, 59 Cal. App. 4th 1141 (1997).
䡲Prah v. Maretti, 108 Wis. 2d 223 (1982).
California v. Bissett
The first and only prosecution under the Act occurred in California v. Bissett.
20
The story begins in 1996, when defendant Bissett and her husband Treanor planted
three redwood trees in their backyard.
21
The next five years, they planted five
more redwoods. In 2001, plaintiff neighbor Vargas installed solar panels on his
roof and shortly thereafter asked the defendants to remove or prune the shading
redwood trees. After the defendants refused to comply, the District Attorney’s
Office commenced its prosecution against the defendants under the Act.
Upon concluding that some of the redwood trees were in violation of the Act,
Judge Kumli of the Santa Clara County Superior Court convicted Bissett and
Treanor under the state’s nuisance law. As part of the conviction, Judge Kumli
ordered Bissett and Treanor to alter or remove any offending tree so that less than
10% of Vargas’ solar panels would be shaded. After the conviction, and in order
to comply with the court’s order, the defendants eventually pruned one of the
redwood tree’s upper branches.
As a result of this case, and the widespread attention it received nationwide
following the conviction, California State Senator Joe Simitian introduced Senate
372 兩Anders, Day, and Kuduk
Bill 1399 (2008), an amendment to the Solar Shade Control Act. The bill
exempting all trees and shrubs planted prior to the installation of a solar panel
was signed into law by Governor Arnold Schwarzenegger in July 2008 and
became effective January 1, 2009.
22
Sher v. Leiderman
Sher v. Leiderman provides guidance as to whether a passive solar home meets
the Act’s definition of a ‘‘solar collector.’’
23
The Shers designed and constructed
a house that takes advantage of winter heat and light. The Shers installed south-
facing windows, skylights, and a large south-facing concrete patio as passive
design features to light and heat the home’s interior. The home, which did not
include any solar collectors as defined by the Act, was characterized by the trial
court as a ‘‘passive solar’’ home, even though it had no thermal mass features to
store and emit radiation of heat.
In the decades after the Shers built their house, trees on the adjoining property,
owned by the Leidermans, matured and prevented winter sunlight from reaching
the Sher’s home. Between December and February, the trees cast a shadow on
much of the Sher’s home from 10:00
AM
to 2:00
PM
. To restore sunlight to the
Sher’s home, some trimming, topping, and removal of the Leiderman’s trees would
have been necessary. As required by then-existing Section 25983, the Shers
contacted the Santa Clara County District Attorney, who determined that the Solar
Shade Control Act did not apply to the Sher’s situation and did not offer a notice
to abate to the Leidermans.
The Shers then sued their neighbors on three causes of action: (1) privatenuisance;
(2) public nuisance under the California Solar Shade Control Act; and (3)
negligent infliction of emotional distress. We focus primarily on the application
and interpretation of the Solar Shade Control Act in this case. The court noted in
its ruling that at the time no case law had developed regarding the Act, so the
question of whether a passive solar home is eligible for the protections afforded
solar collectors under the Act was one of first impression.
24
The California Court of Appeal ruled against the Shers, holding that a passive
solar home designed to collect solar heat does not meet the statutory definition of
‘‘solar collectors’’ contained in Section 25981. The court also held that blockage
of sunlight in and of itself does not constitute a private nuisance.
In its ruling, the court referred to then existing Section 25981, which defined
‘‘solar collector’’ as ‘‘a fixed device, structure, or part of a device or structure,
which is used primarily to transform solar energy into thermal, chemical, or
electrical energy.’’ The Act further provided that a ‘‘solar collector shall be used
as part of a system that makes use of solar energy for any or all of the following
purposes: (1) water heating, (2) space heating or cooling, and (3) power
generation.’’
The Shers argued that their passive solar home is a ‘‘structure, or part of
a...structure... used as part of a system which makes use of solar energy,’’ thereby
‘‘Hey, Your Tree Is Shading My Solar Panels’’ 兩373
JOSRE 兩Vol . 2 兩No.1–2010
meeting the definition of ‘‘solar collector’’ as promulgated under the Act. The
court disagreed, stating that the key word in the definition of a solar collector
under the Act is ‘‘primarily,’’ rather than ‘‘structure.’’ Although the Sher’s south-
facing windows were part of a strategy to passively heat and cool their home, the
court did not agree that the primary function of their windows were to heat their
home, since the windows also allowed light into the home.
The court further held that permitting the Sher’s home to be considered a solar
collector would create a definitional problem whereby every home that has a
south-facing window would be considered a solar collector, regardless of any
intention to passively heat or cool their home, and therefore be eligible to receive
the protections of the Act. The court additionally referred to the Act’s setback
restrictions to support its conclusion that the Sher’s home was not a solar collector.
The court reasoned that the setback restrictions pertain to a solar collector that
would be installed on a home or building and not to the home itself. Lastly, the
court noted that if the legislature had intended to apply the rights and remedies
of the Act to buildings, it would have indicated its intent through explicit statutory
language.
Zipperer v. County of Santa Clara
Zipperer v. County of Santa Clara examines the municipal exemption contained
in Section 25985 of the Act. The central question in this case was whether a
municipality could exempt itself from the Solar Shade Control Act after the
alleged violation of the Act.
The Zipperers built a home with solar heating and cooling systems in the mid-
1980s. The County of Santa Clara purchased an adjacent property in 1991, which
contained a small grove of trees, and designated this land as a park reserve. After
the County acquired the land, the trees on this parcel grew significantly and began
to shade the Zipperer’s home, hindering the performance of their solar system. In
1997, the Zipperers requested that the County trim or remove the offending trees.
The County did not respond to this request, but in 2002 passed an ordinance
exempting itself from the Act. In 2004, the Zipperers brought suit against the
County seeking relief under the Act. The Zipperers alleged that the County
violated the Act well before it exempted itself, and that allowing the exemption
to retroactively apply would allow the County to escape liability for preexisting
violations.
The court found in the County’s favor, holding that Santa Clara County may,
without limitation, exempt itself from the Act. Because the legislature expressly
empowered cities and counties to exempt themselves from the Act, the Zipperer
court held that the County’s validly enacted ordinance extinguished any statutory
Solar Shade Control Act claim.
Kucera v. Lizza
Kucera v. Lizza concerns the validity of a town ordinance protecting property
views and sunlight against unreasonable obstruction by tree growth.
25
One of the
374 兩Anders, Day, and Kuduk
issues addressed by the California Court of Appeal was whether the Solar Shade
Control Act preempts separate local ordinances regarding blockage of sunlight not
related to solar collectors.
A Town of Tiburon ordinance, entitled ‘‘View and Sunlight Obstruction from
Trees,’’prohibited trees from blocking neighboring homeowners’preexisting views
and access to sunlight. When neighboring trees began to obstruct the Kucera’s
views of San Francisco Bay, the Kuceras brought suit against Lizza, the
neighboring tree owner, for violating the town’s ordinance. Lizza argued, in part,
that the Act preempted the local ordinance due to the perceived conflict between
the state law and the Town of Tiburon ordinance.
The Kucera court disagreed with Lizza, holding that the Act does not preempt
local ordinances restricting the growth of trees from unreasonably blocking views
and sunlight. The court reasoned that the town’s ordinance was not preempted by
the Act partly because Lizza identified ‘‘no provisions of Tiburon’s ordinance as
inconsistent with the state legislation.’’ Therefore, the court’s ruling in Kucera
holds that local ordinances principally concerned with preserving views and
sunlight will not be preempted by the Act.
Prah v. Maretti
Prah v. Maretti is a Wisconsin Supreme Court case in which a homeowner sued
a neighbor whose construction plans would block sunlight needed for the
homeowner’s solar collector.
26
At the time, Wisconsin had no state law protecting
access to sunlight, so the homeowners claimed that blocking sunlight from
reaching their solar collector constituted a private nuisance.
27
In this case, the circuit court ruled in favor of the neighboron a summary judgment
motion. The circuit court held that private nuisance law does not apply to blockage
of sunlight, and therefore there is no claim upon which the homeowners can seek
relief.
The Wisconsin Supreme Court reversed the circuit court’s ruling and determined
that the case should proceed to trial on the merits. The Wisconsin Supreme Court
posited that private nuisance law might apply to obstruction of sunlight for solar
energy purposes, and therefore the homeowners stated a claim for which relief
could be granted. The case was remanded back to the circuit court.
In reversing the circuit court ruling, the Wisconsin Supreme Court detailed
arguments for why blockage of sunlight could constitute a private nuisance. The
court noted that this question ‘‘requires the court to make ‘a comparative
evaluation of conflicting interests and to weigh the gravity of the harm to the
plaintiff against the utility of the defendant’s conduct.’’ The Prah court also
examined three policy reasons explaining why other jurisdictionshave traditionally
been unwilling to apply the broad power of private nuisance to cases involving
solar access. The first of these is the longstanding right of landowners to use
property as they wish as long as they did not cause physical damage to a neighbor.
Secondly, sunlight has historically only been valued for aesthetic enjoyment or
‘‘Hey, Your Tree Is Shading My Solar Panels’’ 兩375
JOSRE 兩Vol . 2 兩No.1–2010
Exhibit 3 兩Summary of Cases Related to the Solar Shade Control Act
Case State Description Central Question Court Ruling Case Citation
California v. Bissett CA Redwood trees shading
neighboring
photovoltaics.
Did shade tree owners violate
CA’s Solar Shade Control Act?
Tree owner convicted under
California’s nuisance law.
No. BB727255 (Cal. Sup. Ct.
Santa Clara County Mar. 28,
2008.
Sher v. Leiderman CA Leiderman’s trees
shading Sher passive
solar home.
Is a passive home considered
‘‘a solar collector’’?
Passive solar homes are
not ‘‘solar collectors.’’
181 Cal. App. 3d 867
(1986).
Zipperer v. County of
Santa Clara
CA County trees shading
Zipperer solar home.
Can a municipality exempt
itself after an alleged
violation?
County can exempt itself
without limitation.
133 Cal. App. 4th 1013
(2005).
Kucera v. Lizza CA Lizza trees obstructing
Kucera views.
Can Solar Shade Control Act
preempt local ordinances
regarding blockage of
sunlight not related to solar
collectors?
Local ordinances
principally concerned with
preserving views and
sunlight are not be
preempted by the Act.
59 Cal. App. 4th 1141
(1997).
Prah v. Maretti WI Maretti’s newly
constructed building
would shade Prah’s solar
collector.
Would shading from building
constitute nuisance.
Circuit court denied Prah’s
injunction in summary
judgment, WI Supreme
Court reversed ruling and
remanded back to circuit
court.
108 Wis. 2d 223 (1982).
376 兩Anders, Day, and Kuduk
for illumination, not as a means of power generation. Third, society has a strong
interest in not restricting or impeding land development. The Wisconsin Supreme
Court argued that all three of these policy concerns are no longer fully accepted
or relevant, especially considering the increase in regulation and development of
the use of sun for energy purposes. Exhibit 3 provides a summary of the cases
discussed here.
兩Conclusion
Increased interest in clean energy options has led to an increase in policies
designed to encourage installation of solar energy devices. Many states have
policies in place to protect solar access. The majority of these laws focus on the
ability of covenants, conditions, and restrictions (CC&Rs) to limit solar energy
installations or provide for solar easements. There is a relative paucity of statutory
provisions that provide protections against shading from neighboring vegetation.
As the number of solar installations increases nationwide, it is inevitable that
issues related to shading from vegetation will arise. As states consider solar
shading laws, California law may provide some guidance. California’sSolar Shade
Control Act provides limited protections for solar collector owners whose devices
are shaded by neighboring trees and shrubs. These protections are limited because
the Act contains specific requirements that determine which solar collectors are
eligible for protections under the Act, including the function of the collector, the
manner in which it was installed on the building, and the date the offending tree
or shrub was planted.
兩Appendix A
兩
兩Legal Journals and Law Review Articles
For information about the possible conflicts of California’s Solar Shade Control
Act with the U.S. Constitution, and other interpretations of the Act, the following
law review articles and books are a useful resource:
28
䡲Sara C. Bronin, Solar Rights, 89 B.U.L. Rev. 1217 (2009). This article
outlines the various means of protecting the right to solar access and
devotes some discussion to the Act.
䡲Melvin M. Eisenstadt, Access to Solar Energy: The Problem and its
Current Status, 22 Nat. Resources J. 21 (1982). This general article on
solar energy devotes a few pages to specific interpretations of the Act.
䡲Energy; Solar Shade Control, 10 Pac. L.J. 484 (1979). This article
provides an overview of the Act including unresolved interpretational
questions.
䡲John. W. Gergacz, Legal Aspects of Solar Energy: Statutory Approaches
for Access to Sunlight, 10 B.C. Envtl. Aff. L. Rev., 1 (1982–1983). This
article discusses the possibility that the Act violates the U.S. Constitution
and other specifics of the Act.
‘‘Hey, Your Tree Is Shading My Solar Panels’’ 兩377
JOSRE 兩Vol . 2 兩No.1–2010
䡲Stephen B. Johnson, State Approaches to Solar Legislation: A Survey,1
Solar L. Rep. 55 (1979). This article also devotes a few pages to discuss
various interpretations of the Act.
䡲Stephen M. Murphy, Comprehensive Solar Access Regulation in
California as a Taking of Property: A Future Battleground for an Old
Conflict? 15 U.S.F. L. Rev. 537 (1980–1981). This article also addresses
the Act’s potential conflicts with the U.S. Constitution.
䡲Robert L. Thayer, Solar Access, ‘‘It’s The Law!’’: A Manual on
California’s Solar Access Laws for Planners, Designers, Developers, and
Community Officials 9–13, (1981). This is a handbook on California’s
solar laws, discussing applications and interpretations of the Act.
兩Appendix B
兩
兩Full Text of Solar Shade Control Act
The Solar Shade Control Act is contained in the California Public Resources Code
Sections 25980–25986. The full text of the statutes is provided below.
29
25980. This chapter shall be known and may be cited as the Solar Shade Control
Act. It is the policy of the state to promote all feasible means of energy
conservation and all feasible uses of alternative energy supply sources. In
particular, the state encourages the planting and maintenance of trees and shrubs
to create shading, moderate outdoor temperatures, and provide various economic
and aesthetic benefits. However, there are certain situations in which the need for
widespread use of alternative energy devices, such as solar collectors, requires
specific and limited controls on trees and shrubs.
25981. (a) As used in this chapter, ‘‘solar collector’’ means a fixed device,
structure, or part of a device or structure, on the roof of a building, that is used
primarily to transform solar energy into thermal, chemical, or electrical energy.
The solar collector shall be used as part of a system that makes use of solar energy
for any or all of the following purposes:
(1) Water heating.
(2) Space heating or cooling.
(3) Power generation.
(b) Notwithstanding subdivision (a), for the purpose of this chapter, ‘‘solar
collector’’ includes a fixed device, structure, or part of a device or structure that
is used primarily to transform solar energy into thermal, chemical, or electrical
energy and that is installed on the ground because a solar collector cannot be
installed on the roof of the building receiving the energy due to inappropriate
roofing material, slope of the roof, structural shading, or orientation of the
building.
378 兩Anders, Day, and Kuduk
(c) For the purposes of this chapter, ‘‘solar collector’’ does not include a
solar collector that is designed and intended to offset more than the building’s
electricity demand.
(d) For purposes of this chapter, the location of a solar collector is required
to comply with the local building and setback regulations, and to be set back not
less than five feet from the property line, and not less than 10 feet above the
ground. A solar collector may be less than 10 feet in height only if, in addition
to the five-foot setback, the solar collector is set back three times the amount
lowered.
25982. After the installation of a solar collector, a person owning or in control of
another property shall not allow a tree or shrub to be placed or, if placed, to grow
on that property so as to cast a shadow greater than 10% of the collector absorption
area upon that solar collector surface at any one time between the hours of 10
AM
and 2
PM
, local standard time.
25982.1. (a) An owner of a building where a solar collector is proposed to be
installed may provide written notice by certified mail to a person owning property
that may be affected by the requirements of this chapter prior to the installation
of the solar collector. If a notice is mailed, the notice shall be mailed no more
than 60 days prior to installation of the solar collector and shall read as follows:
兩Solar Shade Control Notice
Under the Solar Shade Control Act (California Public Resources Code Sec. 25980
et seq.) a tree or shrub cannot cast a shadow greater than 10% of a solar collector
absorption area upon that solar collector surface at any one time between the hours
of 10
AM
and 2
PM
local standard time if the tree or shrub is placed after
installation of a solar collector. The owner of the building where a solar collector
is proposed to be installed is providing this written notice to persons owning
property that may be affected by the requirements of the act no more than 60 days
prior to the installation of a solar collector. The building owner is providing the
following information:
Name and address of building owner:
Telephone number of building owner:
Address of building and specific location where a solar collector will be installed
(including street number and name, city/county, ZIP Code, and assessor’s book,
page, and parcel number):
Installation date of solar collector:
Building Owner, Date
(b) If the owner of the building where a solar collector is proposed to be
installed provided the notice pursuant to subdivision (a), and the installation date
‘‘Hey, Your Tree Is Shading My Solar Panels’’ 兩379
JOSRE 兩Vol . 2 兩No.1–2010
is later than the date specified in that notice, the later date shall be specified in a
subsequent notice to persons receiving the initial notice.
(c) (1) A transferor of the building where the solar collector is installed
may provide a record of persons receiving the notice pursuant to subdivision (a)
to a transferee of the building.
(2) A transferor receiving a notice pursuant to subdivision (a) may provide
the notice to a transferee of the property.
25983. A tree or shrub that is maintained in violation of § 25982 is a private
nuisance, as defined in Section 3481 of the Civil Code, if the person who
maintains or permits the tree or shrub to be maintained fails to remove or alter
the tree or shrub after receiving a written notice from the owner or agent of the
affected solar collector requesting compliance with the requirements of § 25982.
25984. This chapter does not apply to any of the following:
(a) A tree or shrub planted prior to the installation of a solar collector.
(b) A tree planted, grown, or harvested on timberland as defined in Section
4526 or on land devoted to the production of commercial agricultural crops.
(c) The replacement of a tree or shrub that had been growing prior to the
installation of a solar collector and that, subsequent to the installation of the solar
collector, dies, or is removed for the protection of public health, safety, or the
environment.
(d) A tree or shrub that is subject to a city or county ordinance.
25985. (a) A city, or for unincorporated areas, a county, may adopt, by majority
vote of the governing body, an ordinance exempting their jurisdiction from the
provisions of this chapter. The adoption of the ordinance shall not be subject to
the California Environmental Quality Act (commencing with Section 21000).
(b) Notwithstanding the requirements of this chapter, a city or a county
ordinance specifying requirements for tree preservation or solar shade control shall
govern within the jurisdiction of the city or county that adopted the ordinance.
25986. Any person who plans a passive or natural solar heating system or cooling
system or heating and cooling system which would impact on an adjacent active
solar system may seek equitable relief in a court of competent jurisdiction to
exempt such system from the provisions of this chapter. The court may grant such
an exemption based on a finding that the passive or natural system would provide
a demonstrably greater net energy savings than the active system which would be
impacted.
兩Endnotes
1
Database of State Incentives for Renewables and Efficiency (DSIRE), 2010. See http://
www.dsireusa.org/.
380 兩Anders, Day, and Kuduk
2
Sherwood (2009).
3
PACE programs allow local government entities to offer sustainable energy project loans
to eligible property owners. Through the creation of financing districts, property owners
can finance renewable onsite generation installations and energy efficiency improvements
through a voluntary assessment on their property tax bills.
4
The Solar Shade Control Act refers to both shrub owners and tree owners.
5
Eisenstadt (1982).
6
Anders et al. (2010).
7
Wis. Stat. § 844.22.
8
Minn. Stat. § 462.357.
9
ORS § 215.044 et seq.
10
Sherwood (2009).
11
Barringer (2008).
12
§ 25981(c).
13
§ 25981(a).
14
Sher v. Leiderman, 181 Cal. App. 3d 867, 883 (1986).
15
Barringer (2008).
16
§ 4526 defines ‘‘Timberland’’ as: [L]and, other than land owned by the federal
government and land designated by the board as experimental forest land, which is
available for, and capable of, growing a crop of trees of any commercial species used
to produce lumber and other forest products, including Christmas trees. Commercial
species shall be determined by the board on a district basis after consultation with the
district committees and others.
17
§ 25984 does not specifically define what constitutes a replacement tree.
18
§ 25985(a) further states that ‘‘adoption of the ordinance shall not be subject to the
California Environmental Quality Act.’’ The following California jurisdictions have
exempted themselves from the Act: Butte County, City of Santee, City of Shasta Lake,
Sacramento County, and Santa Clara County. Note that this is not an exhaustive list.
Review local municipal codes or contact local officials to determine if a municipality
has an exemption.
19
See generally John W. Gergacz, Legal Aspects of Solar Energy: Statutory Approaches
for Access to Sunlight, 10 B.C. Envtl. Aff. L. Rev. 1, 20 (1982) (‘‘tree and shrub
placement may work passively with the design of a building to naturally heat or cool
it, at least in part’’).
20
No. BB727255 (Cal. Sup. Ct. Santa Clara County Mar. 28, 2008).
21
Barringer (2008).
22
2008 Cal. Stat. ch. 176.
23
Sher v. Leiderman, 181 Cal. App. 3d 867, 881–83 (1986).
24
A case of first impression is the first time such a specific legal question on that specific
topic has been considered by the court.
25
59 Cal. App. 4th 1141, 1143 (1997).
26
108 Wis. 2d 223, 224–25 (1982). Note that because Prah is not a California case,
California courts are not required to abide by its holding.
27
Shortly after Prah was decided, Wisconsin passed legislation similarto California’s Solar
Shade Control Act, and which provided two remedies for solar shading claims. See
‘‘Hey, Your Tree Is Shading My Solar Panels’’ 兩381
JOSRE 兩Vol . 2 兩No.1–2010
former Wis. Stat. § 66.031 (now Wis. Stat. § 66.0401) and former Wis. Stat. § 66.032
(now Wis. Stat. § 66.0403).
28
This is not intended to be an exhaustive list of resources available on the Solar Shade
Control Act.
29
All current California laws can be found at http://www.leginfo.ca.gov.
兩References
Anders, et al. California’s Solar Rights Act. A Review of the Statutes and Relevant Cases.
Energy Policy Initiatives Center, 2010.
Barringer, F. Trees Block Solar Panels, and a Feud Ends in Court The New York Times,
April 7, 2008.
——. In California Neighbors’ Dispute, Officials Find It’s Time to Speak for the Trees.
The New York Times, July 23, 2008.
Database of State Incentives for Renewables and Efficiency (DSIRE). 2010. See http://
www.dsireusa.org/.
Eisenstadt, M. Access to Solar Energy: The Problem and its Current Status. Natural
Resources Journal, 1982, 21.
Gergacz, J.W. Legal Aspects of Solar Energy: Statutory Approaches for Access to Sunlight.
Boston College Environmental Affairs Law Review, 1982, 10, 1–36.
Sherwood, L. Solar Installation Trends. Interstate Renewable Energy Council. New York,
2009.
The materials included in this paper are intended to be for informational purposes
only, and should not be considered a substitute for legal advice in any particular
case.
Scott Anders, University of San Diego, San Diego, CA 92110 or
scottanders@sandiego.edu.
Taylor Day, Morgan, Lewis & Bockius LLP, Los Angeles, CA 90071-3132 or
tday@morganlewis.com.
Carolyn Adi Kuduk, University of San Diego, San Diego, CA 92110 or
Carolynk-10@sandiego.edu.
