Things are (Literally) Looking Up

Many thanks to Matt for inviting me back as a guest blogger!   If nothing else, a bit of blogging will provide me a productive distraction this month from grading spring semester exams.   Matt and the entire team of editors continue to do an outstanding job with the blog, and it’s absolutely one of my favorite morning reads.

I’ll use my first post to respond to Matt’s half-joking question:  why should a land use prof spend time thinking about the space above land?   After all, airspace rights receive scant attention in most land use casebooks.  Discussions of airspace rights might seem better suited for a course on aviation law.  Land use profs should stay down in the dirt, right?       

Not necessarily. Over the past few years, I've managed to convince myself that some of the most perplexing and unsettled land use conflicts of the day involve the oft-forgotten space just above the surface of land.  

For me, it all began while I was still practicing at a large law firm in Seattle.  Our wind energy developer client approached us with a puzzling question:  can a landowner be liable for stealing a neighbor’s wind?   The client and a competing developer had leased adjacent parcels for wind farms.  Our client wanted to install a wind turbine immediately upwind of one of the competitor’s turbine sites that was situated just on the other side of their common property boundary line.  If both turbines were installed, the turbulent “wake” from the upwind turbine would render the downwind turbine largely ineffective.  Only one of these two prime turbine sites could be profitably developed.  Under the law, who should prevail in this dispute over wind – the upwind party or the downwind party? 

While I was wrestling with that question, I stumbled upon the topic of solar access--a similar sort of airspace use conflict that involves solar energy devices instead of wind turbines.  Should landowners be liable when trees or buildings on their parcels shade a neighbor’s solar panels?  Laws Wyoming and New Mexico effectively give solar energy users strong legal protections against shading—“solar rights”—drawing analogies to water law’s prior appropriation doctrine.  But these analogies to water law are misguided, ignoring neighbors’ longstanding rights in the airspace above their land.  Better governance rules are needed for these conflicts that are capable of balancing policymakers’ general interest in promoting solar energy with the existing airspace rights of neighbors.

These wind and solar energy disputes over airspace are just two examples of how airspace is playing an increasingly crucial role in the sustainability movement.  Vertical construction and infill development that occupy additional airspace continue to be significant strategies for curbing suburban sprawl, and city-based tree planting programs are occupying more urban airspace as well.   At the same time, planners and sustainability advocates are pushing other strategies that require that more airspace be kept open.  For example, city-sponsored urban gardens need significant amounts of un-shaded sunlight to thrive, and even LEED certification standards award points for natural lighting designs that often rely on skylights, windows, and minimal shade.  When combined with the solar and wind energy uses of airspace mentioned above, these developments are collectively generating an unprecedented level of competition for scarce airspace.      

In summary, I think that airspace is very much a topic worth covering in a land use course.  There is reason to believe that the challenge of crafting policies that can fairly and efficiently govern airspace conflicts is only beginning and will continue to vex policymakers and legal scholars well into the future.

Troy Rule