Solar Rights in Florida Public and Private Regulation of Solar Energy Installations Colleen McCann Kettles, JD Program Director Florida Solar Energy Center 2015
Workshop Outline • Introduction to the SunShot Initiative • Overview of Solar Technologies • Regulation of Solar Energy Installations in Florida • Florida’s Solar Rights Laws • Q&A – Discussion 2
SunShot Soft Costs Goal
Solar Energy Technologies Solar Electric (Photovoltaics – PV) Solar Thermal –Solar Water Heating –Solar Pool Heating –Process Hot Water (Industrial Scale) Page 7
Solar Water Heating
Solar Pool Heating
Photovoltaics (Solar Electric – PV)
Regulation of Solar Energy Installations • Quality Control Measures • Public and Private Land Use Regulations
Product Standards Broad Industry Recognition
Provide Third Party Certification
Practitioner Licensing Task Analysis
Minimum Education and Experience
Training and Continuing Education
Government Permitting Single Permit System
Equitable Permit Fee
Online Process 15
Installed System Inspection Standards Adoption
Permitting System 16
Issues for Discussion • • • • • •
Unnecessary requirements Unclear requirements Jurisdictional variations Submittal and processing time Inspection time High permit fees
History of the Right to Sunlight Doctrine of Ancient Lights A doctrine of English Common Law that gives a landowner an easement or right by prescription to the unobstructed passage of light and air from adjoining land if the landowner has had uninterrupted use of the lights for twenty years. Once a person gains the right to ancient lights, the owner of the adjoining land cannot obscure them, such as by erecting a building. If the neighbor does so, he or she can be sued under a theory of nuisance, and damages could be awarded.
Florida Landmark Decision • Fontainebleau vs Eden Roc – “No American decision has been cited … 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 neighbor. … And the English doctrine of ‘ancient lights’ has been unanimously repudiated in this country. – If … public policy demands that a landowner in the Miami Beach area refrain from constructing buildings on his premises that will cast a shadow on the adjoining premises, an amendment of its comprehensive planning and zoning ordinance, applicable to the public as a whole, is the means by which such purpose should be achieved.
Public and Private Land Use Restrictions • • • •
Local Ordinances Historic Preservation Landscape Controls Community Associations – Restrictive Covenants – Bylaws and Guidelines
Local Ordinances • Local government zoning regulations, development orders and comprehensive plans can impact solar development • Efforts have been made to create solar friendly and even solar ready local codes • Go Solar Florida has produced a Best Practices document for adoption: http://www.broward.org/GoGreen/GoSOLAR/Go SOLARFlorida/Documents/Best_Practices_Solar_ Friendly_Planning_Zoning_2014.pdf
Historic Buildings and Districts
Community Associations • There are more than 330,000 community associations in the United States • There are more than 7500 in Central Florida alone • They govern, among other things, improvements to property • Solar installations fall within their purview
Community Associations • Restrictive Covenants and Bylaws – Impose binding obligations on property owners – Can be enforced by association or other property owners
• Architectural Review Boards – Establish guidelines for property improvements – Review and approve applications
Solar Access Laws • Solar Easements: protecting the ability of one property to continue to receive sunlight across property lines without obstruction from another property • Solar Rights: protecting the ability to install solar energy systems on residential and commercial property that is subject to private restrictions as well as local government ordinances and building codes
Solar Easements in Florida • Solar easements are the prevalent method of assuring solar access. • Since a land owner owns at least as much of the air space above the ground as he can occupy or use in connection with the land, he has the right to grant an easement for light within that airspace.
Solar Easements in Florida • Since there is no implied right to light and air (Fontainebleau case), there must be statutory authority to create a solar easement. • Florida law enables the creation of a solar easement (Section 704.07, FS) • Solar easements are strictly voluntary, meaning you cannot force a property owner to grant one.
Florida’s Solar Easement Statute 704.07 Solar easements; creation; remedies.— (1) Easements obtained for the purpose of maintaining exposure of a solar energy device shall be created in writing and shall be subject to being recorded and indexed in the same manner as any other instrument affecting the title to real property. Solar easements may be preserved and protected from extinguishment by the filing of a notice in the form and in accordance with the provisions set forth in ss. 712.05 and 712.06.
Florida’s Solar Easement Statute (2) In addition to fulfilling the requirements of law relating to conveyance of interests in land, the instrument creating the solar easement shall include: (a) A description of the properties, servient and dominant. (b) The vertical and horizontal angles, expressed in degrees, at which the solar easement extends over the real property subject to the solar easement. (c) A description of where the easement falls across the servient property in relation to existing boundaries and various setbacks established by the local zoning authority.
Florida’s Solar Easement Statute (d) The point on the dominant property from where the angles describing the solar easement are to be measured. (e) Terms or conditions under which the solar easement is granted or will terminate. (f) Any provisions for compensation of the owner of the property benefiting from the solar easement in the event of interference with the enjoyment of the solar easement or compensation of the owner of the property subject to the solar easement for maintaining the solar easement. (3) No structure under construction on October 1, 1978, shall be subject to any solar easement recorded pursuant to this section.
Florida’s Solar Rights Law 163.04 Energy devices based on renewable resources.— (1) Notwithstanding any provision of this chapter or other provision of general or special law, the adoption of an ordinance by a governing body, as those terms are defined in this chapter, which prohibits or has the effect of prohibiting the installation of solar collectors, clotheslines, or other energy devices based on renewable resources is expressly prohibited.
Florida’s Solar Rights Law (2) A deed restriction, covenant, declaration, or similar binding agreement may not prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restriction, covenant, declaration, or binding agreement. A property owner may not be denied permission to install solar collectors or other energy devices by any entity granted the power or right in any deed restriction, covenant, declaration, or similar binding agreement to approve, forbid, control, or direct alteration of property with respect to residential dwellings and within the boundaries of a condominium unit.
Florida’s Solar Rights Law Such entity may determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 45° east or west of due south if such determination does not impair the effective operation of the solar collectors. (3) In any litigation arising under the provisions of this section, the prevailing party shall be entitled to costs and reasonable attorney’s fees.
Florida’s Solar Rights Law (4) The legislative intent in enacting these provisions is to protect the public health, safety, and welfare by encouraging the development and use of renewable resources in order to conserve and protect the value of land, buildings, and resources by preventing the adoption of measures which will have the ultimate effect, however unintended, of driving the costs of owning and operating commercial or residential property beyond the capacity of private owners to maintain. This section shall not apply to patio railings in condominiums, cooperatives, or apartments. History.—s. 8, ch. 80-163; s. 1, ch. 92-89; s. 14, ch. 93-249; s. 1, ch. 2008-191; s. 3, ch. 2008-227.
Florida’s Solar Rights Law 718.113 (7) Notwithstanding the provisions of this section or the governing documents of a condominium or a multicondominium association, the board of administration may, without any requirement for approval of the unit owners, install upon or within the common elements or association property solar collectors, clotheslines, or other energy-efficient devices based on renewable resources for the benefit of the unit owners.
Florida’s Solar Rights Law
Florida’s Solar Rights Law
Florida’s Solar Rights Law
Florida’s Solar Rights Law
Issues for Discussion • Local government regulations or procedures that restrict solar • Enforcing Solar Rights laws in community associations that restrict solar • Cumbersome requirements for obtaining approval for installation
Policies Promoting Solar Development • Financial Incentives – Property Tax Exemption – Tangible Personal Property Tax Exemption – Sales Tax Exemption – Property Assessed Clean Energy
• Net Metering • Interconnection • Third Party Power Purchase Agreements
Thank You! Questions? Contact Information: Colleen McCann Kettles, Program Director Florida Solar Energy Center [email protected]