Over the past 10 years, the United States witnessed exponential growth in solar power installations including on residential properties, at commercial locations and as part of installations serving public utilities. Decreasing installation costs, increased competition, tax breaks and technological advancement continue to energize this growth. While commercial applications of solar power date back over 100 years, the oil embargo of the 1970s fostered a burgeoning interest in solar power in the United States which translated to action at the federal level including the Solar Heating and Cooling Demonstration Act and the Solar Energy Research, Development and Demonstration Act also of 1974. In 1979 New York State passed legislation establishing the right to maintain voluntary easements over property for the purpose of assuring sufficient sunlight for solar facility operation. New York Real Property Law Section 335-b specifically allows for the recording of solar easements as follows:
- Any easement obtained for the purpose of exposure of a solar energy device shall be created in writing and shall be subject to the same conveyancing and instrument recording requirements as other easements.
- Any instrument creating a solar energy easement shall include, but the contents shall not be limited to:
- The vertical and horizontal angles, expressed in degrees, at which the solar energy easement extends over the real property subject to the solar energy easement.
- Any terms or conditions or both under which the solar energy easement is granted or will be terminated.
- Any provisions for compensation of the owner of the property benefiting from the solar energy easement in the event of interference with the enjoyment of the solar energy easement or compensation of the owner of the property subject to the solar energy easement for maintaining the solar energy easement.
Many local municipalities have sought to address the various types of solar power installations in their communities through comprehensive plan and zoning amendments. The key aspects of concern regarding these installations are size, location and appearance. It is important to understand how local zoning codes regulate these and other aspects of solar power installation.
Before negotiating a solar easement agreement it is therefore important to conduct due diligence on where a solar power installation is permitted. Setbacks or other zoning regulations may prohibit the location of a solar power installation proximate to adjacent property lines in such a way that moots the effectiveness of any solar easement. In other words, an easement for light across neighboring property is of little value if zoning precludes installation of the solar panels in the location where the panels will collect the light passing through the solar easement.
When negotiating an easement in circumstances where there is some uncertainty regarding how local regulations will apply, either because amendments to the zoning are forthcoming or variances are required, then it is best to seek a termination clause if local regulations do not allow for effective use of the light that the easement seeks to protect. Keep in mind that solar power installations are no different from other real estate development projects that require careful pairing of private property rights and an understanding of local regulations. Be sure to perform zoning due diligence before executing a solar easement.