A few months ago, when I was taking my daughter to ballet class, I happened to notice some standalone solar panel arrays located at the rear of a residence across the street from the small shopping plaza where the class is held. The rear of that house faces the main road, but the house is actually accessed off of another street leading from the main road. Because of the topography in the area, the house and solar panels are elevated probably 20-30 feet above the main road. Pictures of the solar panels can be found here (published by The Patriot Ledger, online).

I remember thinking to myself that those panels must be new because I had not noticed them before (they’re easy to miss if you’re driving by them, but are easily spotted from the shopping plaza parking lot which I now visit weekly). I also applauded the homeowner for taking the initiative to “go green”, and made a mental note to check the zoning code to see whether it had any provisions regarding solar panels because we’ve contemplated installing some of our own at some point.

But, as reported in The Patriot Ledger on March 8th, it turns out that those solar panels have not come without controversy from the City of Quincy and at least a few nearby residents.  The Patriot Ledger reported that the homeowner was required to seek zoning relief after initially receiving a stop work order from the city during construction/assembly of the arrays, despite having obtained an electrical permit.

Given my experience in land use and zoning litigation, it does not surprise me that there would be at least some friction created by these panels.

Although the homeowner had secured an electrical permit, he had proceeded to build the arrays without any other building or zoning permit. It’s not surprising, to me at least, that the landowner’s actions, the city’s response thereto and the apprehension of some neighbors was the natural progression of events, if only because the City of Quincy Zoning Code is silent about solar energy systems. In fact, Section 3.1of the Zoning Ordinance expressly states that

No land shall be used and no structure shall be erected or used except as set forth in the following Table of Use Regulations, including the notes to the Table, or as otherwise set forth herein, or as exempted by General Laws. Any building or use of premises not herein expressly permitted is hereby prohibited.

So, to the extent that solar panels/arrays are not expressly permitted by the Code, it would appear that the homeowner’s panels were illegal in some fashion.

Except that they’re not.

Under Massachusetts General Laws Chapter 40A, Section 3,

No zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare.

Thankfully, the Zoning Board of Appeals (ZBA) had the foresight to allow the landowner to keep his panels, albeit to a lesser degree. According to the ZBA’s meeting minutes for the February 7, 2012 hearing (available here), the landowner was granted a variance. Though I have not personally read the zoning decision (if any), given that the Massachusetts Zoning Act mandates that solar energy systems cannot be unreasonably regulated or prohibited except to protect public health, safety or welfare, it is curious to me (1) what, then, the variance is for, and (2) under what basis they required the homeowner to reduce the height of the structure.

But that’s not the point of this post . . . or maybe it is.  This situation, and many previous ones like it (another example: residential wind turbines), will continue to occur as more homeowners and other types of landowners attempt to green-up their properties. This case highlights the need for communities to proactively amend their zoning codes to expressly accommodate solar, wind and other alternative energies—particularly those that may require the use of an accessory structure or invite arguments about “aesthetics”.

To not put in place a meaningful set of dimensional, structural and design guidelines ahead of time allows the opponents of such projects to drive the discussion and (often speculatively) sound the alarm about aesthetics and diminution of property values when there is no legitimate basis to do so. By failing to provide for solar panels/arrays either “as of right” or by “special permit” (but within the confines of meaningful dimensional and similar regulations), the process is reduced to a forum that invites litigation from project opponents that is often not rooted in legitimate, evidence-based concerns or injuries.  Sometimes the fear of litigation is enough of a detractor to stop an environmentally minded homeowner from moving forward on an otherwise benign project.

Moreover, the lack of meaningful zoning bylaw or ordinance provisions that expressly address things like solar panels also hinders landowners like the one here, and certainly more tentative individuals, from going forward with projects that will carry out one of the stated objectives of many zoning codes: “the conservation of natural resources and the prevention of blight and pollution of the environment.” (including Quincy’s own Zoning Code). Considering that, according to the City of Quincy’s website, the City of Quincy just underwent “the biggest overhaul of the City’s Zoning Code in a generation, and the process was completed in the summer of 2011″, it is extraordinary as to how or why a provision regarding solar panels/arrays was excluded from the newest version of the Code. At this point, residential solar panels is barely cutting edge technology.

Reducing the use of fossil fuels and taking advantage of alternative energies available at the residential scale is but one area where homeowners will continue to seek to “go green”. Now is the time for municipalities to put those parameters in place, to allow those individuals to do so without having to worry whether their investment of time and money will be thwarted by neighbors or the municipality itself.

Copyright (c) 2011-2012 by Kristen M. Ploetz and Green Lodestar Communications & Consulting, LLC. All rights reserved.