Monday, April 18, 2016

Zoning’s Centennial, Part 15: Zoning In Solar and Clean Energy: A Series by John R. Nolon

Part 15

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

Zoning In Solar and Clean Energy


As zoning turns 100, it is showing its age by its exclusion of modern clean energy systems in many communities. It is also demonstrating its historical resiliency, as more and more progressive communities act to reform zoning to permit, require, and incentivize renewable and clean energy facilities. These rapidly evolving systems include building integrated solar systems, ground- and roof-mounted solar arrays, large- and small-scale wind generation, multi-building combined heat and power facilities, microgrids, on-site electricity generation, and geothermal systems.

For clean energy systems to be constructed, they must be permitted by local zoning and not subject to expensive regulatory barriers that discourage their use and increase their cost. Promoting clean energy systems under local land use regulations is one of the latest efforts on the part of local governments to mitigate climate change, which, in the aggregate, are most impressive.

It is an uphill battle. By analyzing the comprehensive plans and zoning codes of most local governments, it is evident that regulatory barriers to clean energy systems are ubiquitous. These range from the simple failure to define and permit clean energy systems, to excessive height and setback restrictions, to additional or outdated permitting requirements—which greatly increase the costs of systems or discourage their use due to the unpredictability or length and costs of the approval process. The battle is being fought first on the solar front, given the popularity, improved technology, and reduced costs of solar energy systems. 

Although both the federal and state levels of government have a strong interest in encouraging the deployment of renewable energy systems, the power to permit solar energy systems under land use law has been delegated by most states to local villages, towns, and cities. Most states are not willing to preempt local control of solar and other clean energy systems; as a result, it is state policy to defer to local discretion in these matters, allowing local policymakers to determine the types of solar and other clean energy systems that will be deployed in the state.

Local officials who want to encourage solar energy systems are adjusting the local land use system by first adding a solar energy component to the comprehensive plan or adopting a special solar energy policy or plan to guide the reform of land use regulations. These local governments are then amending zoning regulations to permit and encourage these systems.

The primary, and most common, barrier to solar energy system implementation occurs when solar energy systems are neither defined nor permitted in one or more zoning districts. Without explicit definitions of solar facilities, they cannot be permitted by reference in the district use provisions of local zoning. In addition, the lack of clear clean energy- or solar-related definitions misses the opportunity for municipalities to send a signal to developers, property owners, and installers that they are "open for clean energy business." Municipalities are beginning to fix this problem by amending their zoning code to include definitions of the different solar energy systems available, based on type, size, and/or energy capacity.

Municipalities chose to permit solar energy systems by designating them as principal, accessory, secondary, or specially permitted uses. They are subjecting them to modified and expedited site plan review, waiving design standards enforced by local Architectural Review Boards, and providing exemptions from Historic District Review standards for conforming designs and proper locations.

Solar easements, not recognized by common law in most states, can be created by local government regulation to ensure access to sunlight over the life of the solar system. Typically, these regulations require written and recorded solar easements that define easement dimensions, how the easement will terminate, and compensation for easement maintenance or interference, among other provisions.

Some localities are requiring developers to install solar energy systems or, short of that, make buildings solar ready. Other communities incentivize, rather that require, these solar facilities, typically by providing density bonuses for solar panels, solar readiness, and solar access easements.

The process for zoning to allow other forms of clean energy follows the pattern set by zoning for solar. First, local comprehensive plans should set forth as a goal furthering clean energy facilities; next, zoning should define each of these clean energy technologies; and finally, district use regulations should be amended to permit them in appropriate locations at appropriate scales. The processes used to regulate and approve such facilities should be streamlined as fully and prudently as possible.

There is a clear need for municipal attorneys, local land use leaders, and state agencies interested in reducing energy costs and harmful fossil fuel emissions to develop model laws and approval processes for all clean energy facilities, in order to further the important objectives that they accomplish. These will all aid zoning in its adaptation to meet yet another contemporary challenge.

For more information, see John R. Nolon, Mitigating Climate Change by Zoning for Solar Energy Systems: Embracing Clean Energy Technology in Zoning’s Centennial Year, Zoning and Planning Law Report (Dec. 2015).

Links to previous posts in the Zoning Centennial’s Series:

Part 1: The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority To Adopt Zoning

Part 3: Zoning Was Contagious, But Was It Constitutional?

Part 4: The Unintended Consequences of Euclidean Zoning

Part 5: The Most Appropriate Use of the Land

Part 6: The Surprising Origins of Smart Growth

Part 7: The Advent of Local Environmental Law

Part 8: Regionalism and ‘Wistful Hoping’

Part 9: Mixed Signals: Exclusionary Zoning and Fairness

Part 10: The Emergence of the Law of Sustainable Development

Part 11: Designing Density

Part 12: Green Infrastructure

Part 12B: Land Use and Energy Conservation

Part 14: Transit Oriented Development

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