Wednesday, March 21, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 9: Community Power and Renewable Energy: A Series by John R. Nolon


This post is the penultimate issue in a series. See below for links to previous issues.

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.

Community Power and Renewable Energy

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University


Community power is an emerging tool for implementing renewable energy technology. It is also a metaphor for the power of local governments to further or frustrate that resource.  Historically, land use regulations were more of a hindrance than a help. In some communities, the soft costs of renewable energy facilities, including the expense of securing local approval for wind and solar energy systems, remained high while the cost of the systems declined. In others, these facilities were simply zoned out. This is changing and the pace of change is rapid. 

The Pittsburgh Zoning Code defines distributed energy systems to include “a range of smaller-scale technologies designed to provide electricity and thermal energy closer to consumers,” including renewable energy facilities. The source of power for Microgrids, which is incentivized by this zoning law, can be small-scale renewable energy systems, such as community solar systems and small- to mid-sized individual or clustered wind turbines or on-site solar panels.

Communities, like Pittsburgh, using their land use power, are mitigating climate change by defining the types of emerging sources of renewable power, permitting those sources in zoning districts, and some are requiring property owners to accommodate these sources or   creatively incentivizing them in a variety of ways.   The facilities supported by local land use laws can be called community power systems.

Distributed energy facilities are increasingly studied as part of land use planning, being called for in comprehensive plans, defined by zoning codes, and permitted in certain districts, either as-of-right, as accessory or secondary uses, or as special permitted uses. Larger, higher intensity systems can be permitted by zoning, but subject to protective standards. 

A few state legislatures have preempted local authority to regulate renewable energy systems, particularly large-scale projects that are subject to state agency regulation and licensing. But most mid-sized and smaller systems remain subject to local regulation under the plenary authority delegated to local government to control private development. This is understandable; the risks and impacts of energy systems are experienced first-hand locally by the residents of these communities.

When, for example, wind power companies first approach a community with a proposal to develop towers over 200 feet high, with blades nearly as long as a football field, neighbors naturally oppose them until their risks are understood and mitigated by regulation. Less dramatically, a proposal to cluster a few smaller towers to serve on-site needs or even a single wind turbine on a residential roof will meet opposition initially. Residents, particularly adjacent neighbors, are concerned about the noise, visual interruption, ice throws, the strobe effect, change of neighborhood character, and the consequent diminution of their property values. Since land use laws are based on intense democratic participation by the public, these risks have to be examined and, where they are well founded, reduced or eliminated.

Local governments typically begin the regulatory process by doing studies of wind generation systems, exploring both the risks and benefits, and memorializing their findings in a comprehensive land use plan amendment or adopting a land use policy.  They then define various types and sizes of wind energy systems and prohibit them in inappropriate locations and permit them in others, with needed safeguards.  These laws create spacing and set back requirements, limit or buffer noises, require aesthetic controls, and impose regulations on noise levels, viewshed interruptions, heights, location, size, lighting, color, or design. Some laws require local licenses and even provide for decommissioning.

Zoning for solar energy facilities proceeds in the same way. When the Land Use Law Center was retained to draft a model solar energy law for communities in New York, we started by working with industry representatives to understand the various types, shapes, intensities, and other characteristics of these facilities. We realized that building integrated systems are part of the structure itself and exempted them from land use regulation. Small scale roof-top and ground mounted systems were permitted as-of-right or as accessory uses, and larger scale systems were subject to special permits and site plan regulations.  

Most states have adopted the International Codes Council’s Energy Conservation Code as a baseline to conserve energy in new and substantially rehabilitated buildings.  State law in some states allows local governments to adopt enhancements to the state energy code that achieve even greater conservation. The New York State energy agency, NYSERDA, has circulated a draft “stretch code” that localities may adopt to strengthen energy conservation requirements locally.  Among its provisions is this: “New buildings shall comply with one of five standards including the use of on-site renewable energy with a total minimum rating of, for example, “not less than 1.71 Btu/hr/ft2…or 0.50 w/ft2 of conditioned floor area….”

NYSERDA has also promulgated the Unified Solar Permit (USP) to reduce costs for solar projects by streamlining municipal permitting processes. Local governments in the state may, and many have, adopted the USP. It applies to solar systems with a capacity of 12 kW or less that are not subject to architectural or historical review board approval, do not require a zoning variance or a special use permit, and that are roof-mounted, compliant with building and related codes, and meet mounting and weight distribution requirements.

Without assured access to the rays of the sun, property owners may be discouraged from installing solar panels because the cost of the systems may not be recouped over time if sunlight is diminished by development on adjacent parcels.  In most states solar easements or nuisance actions for blocking the sun’s energy are not recognized by common law. However, they can be created by local government regulation. 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. This is an especially viable technique when applied through subdivision regulations to new developments.

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

Local governments have not yet fully transitioned from Zoned-Out to Zoned-In and fully facilitated community renewable systems, but the trend is definitely moving in that direction.

For solar power regulation, see Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation  

For wind power regulation, see Wind Power: An Exploration of Regulations and Litigation,

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

Post 7:  The Land Use Stabilization Wedge:  Sequestration

Post 8:  Distributed Energy

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