In the suburban and more rural areas of New York, such as Westchester County, the Hudson Valley, and Long Island, municipalities must promote general state policies by encouraging the adoption of alternative energy solutions, i.e. residential solar systems. However, residential solar systems are not always easily permitted. A developer seeking to construct a residential solar system may face obstacles from neighbors or homeowner associations or may have trouble siting solar energy arrays in a location best suited for available sun-light. For instance, it is common for a planning board to ensure that appropriate landscape buffers are implemented, but typically without regard to what impact such actions will have on the effectiveness of residential solar energy systems.
As we enter the age of smart grid connectivity and net metering, communities will need to accommodate and encourage on-site residential energy systems that may sell energy back to the grid. A new balancing test will need to be employed. Municipalities will need to consider the rights of the applicant and the concerns of the neighbors in conjunction with the overarching policy of New York to expand alternative energy production. Importantly, if an applicant applies for a small-scale solar energy facility, the municipality must encourage such development and ensure its sustainability, i.e. access to sunlight.
Accordingly, the New York Legislature is considering laws that would advance residential (small-scale) solar facilities in New York and limit the obstacles hindering solar development. While there are many proposed laws related to solar energy in New York, Bill No. A06878 and Bill No. A00046 are the ones that will have direct impact the permitting and planning process for residential systems.
New York Legislation
Proposed New York Bill No. A06878 seeks to prohibit homeowner associations from banning the installation of solar arrays in their by-laws or rules and regulations. In fact, in this regard, New York is behind the game. In Arizona, Florida, California and Massachusetts, legislators have enacted similar bans on homeowner associations barring them from taking steps to prohibit the installation of solar arrays on residential properties.
This proposed New York legislation, if enacted, would provide residents in homeowner associations the right to install solar arrays through a consultative process with their respective association.
In effect, it seeks to eliminate the inconsistent manner that residential solar systems are currently subject to review. Residential developers in New York, who typically create homeowner associations and corresponding regulations in the course of subdividing larger tracts of land, must be aware of Bill No. A06878 in light of its potential impact on the design of future residential development.
Similarly, proposed New York Bill A00046 seeks to prohibit the shading of solar energy devices located on adjacent properties. This bill would prohibit the shading of more than 10% of a solar collector by landscaping on adjacent properties. While this proposed law takes into account existing landscaping, it represents another potentially significant consideration for residential developers and/or municipal permitting agencies.
Reflecting the official policy of State of New York to promote the use of alternative energy, more and more residential developers will be looking to incorporate small-scale solar energy systems into their developments. It is therefore vital for developers and local regulators to understand the applicable (and pending) New York State legislation, as they go about the business of developing the next generation of residential housing for our communities.