Topic:
MUNICIPALITIES; ZONING; REAL PROPERTY; LAND USE; COURTS; EASEMENTS; SOLAR ENERGY;
Location:
EASEMENTS; ENERGY, SOLAR;

OLR Research Report


August 27, 2007

 

2007-R-0498

PROTECTION OF SOLAR ACCESS

By: Kevin E. McCarthy, Principal Analyst

You asked what protections a homeowner who installs a photovoltaic or other solar energy system has against a neighbor who blocks sunlight from reaching the system.

SUMMARY

In the 19th century the legislature enacted legislation that supersedes easements protecting solar access arising from common law. The state Supreme Court has construed this law to severely limit the scope of such easement. However, it appears that the homeowner could enter into agreements with his or her neighbors to obtain an easement to preserve solar access for the system. If the neighbor violated the easement, for example by enlarging the size of his building or allowing vegetation to grow to block sunlight from reaching the system, the homeowner could seek relief from the courts.

In addition, the homeowner may have some protection under zoning law. Standard provisions of municipal zoning ordinances, such as limits on the height of buildings, can limit the ability of the owner of an adjoining property from modifying his property in a way that blocks sunlight from reaching the solar system. We found one municipality that specifically protects solar access, albeit in a minor way, through zoning. Several other municipalities have land use provisions that encourage the preservation of solar access.

COMMON LAW

Under the English doctrine of "ancient lights" if a landowner and his ancestors had received sunlight across an adjoining property for a specified period of time, the landowner was entitled to continue to receive this benefit. He could prevent his neighbor from obstructing his access to light. Under these circumstances, the landowner was said to have an easement by prescription to "light and air" over his neighbor's property. English common law also allowed for the creation of an easement to light and air by implication. Such an easement was one created by law based on the reasonable expectations of the purchaser of a piece of property regarding the benefits (such as light and air) from the adjoining property.

These provisions were part of American common law into the 19th century (cf. Bushnell v. Proprietors of Ore Bed, 31 Conn. 158 (1862)). However, the Connecticut legislature eliminated easements to light and air by prescription in 1875 and the state Supreme Court subsequently severely limited the scope of easements by implication. The 1875 act (CGS 47-25) bars the acquisition, by adverse occupation (prescription), of the right to keep any light so as to prevent the owner of an adjoining property from building or maintaining a building on his property. In Robinson v. Clapp, 65 Conn. 365, appeal after remand 67 Conn. 528 (1896), the Court held that a landowner has an easement to light and air by implication only under very restrictive conditions. It held that the doctrine of implied easements to light and air should only be applied when:

1. the actions of the offending property owner exclude, rather than merely diminish, light from entering the aggrieved owner's property; and

2. the easement is clearly necessary for the reasonable enjoyment of the affected property, as distinct from being merely a convenience for its owner.

The Court held that in the absence of a statute, easement, or contract to the contrary, a landowner may block the view previously enjoyed by an adjoining landowner by erecting a building or other structure. This is true even if the structure was built for the express purpose of shutting out the light and air from the adjoining property.

Unlike most states, Connecticut law does not explicitly provide for easements between property owners to preserve solar access, but neither does it preclude such easements. We have found one zoning ordinance (Windsor) that encourages such easements. If a homeowner with a solar system had an easement with a neighbor and the neighbor violated it, for example by enlarging the size of his building or allowing vegetation to grow to block sunlight from reaching the system, the homeowner could seek relief from the courts. This relief could take the form of an injunction or damages for the diminution of the solar system's value.

Information about solar easement laws in other states is available at http://www.dsireusa.org/library/includes/type.cfm?EE=0&RE=1.

STATUTORY PROVISIONS

CGS 8-2 allows, but does not require, zoning ordinances to encourage the use of solar and other forms of renewable energy. Standard provisions of zoning ordinances, such as limits on building heights, minimum distances between buildings and lot lines, and lot coverage limits, may provide some protection to a homeowner who owns a solar energy system. Exceeding these limits requires a variance granted by the zoning board of appeals (ZBA). If the ZBA grants a variance, the owner of adjoining properties can appeal the decision to the courts without demonstrating that they are aggrieved (CGS 8-8). If a homeowner believes a neighbor has violated the zoning ordinance, he or she can seek enforcement from the municipal zoning enforcement officer and ultimately the courts.

We have found one municipality that has an enforceable zoning provision that specifically applies to solar access. Griswold prohibits the erection of satellite TV dishes in locations that would block solar access of an adjoining property. In addition, zoning and subdivision regulations in several other municipalities have provisions that encourage the preservation of solar access. For example, Bolton's zoning regulations require applicants for the development of any building intended for human occupancy to demonstrate that their site designs seeks to maximize solar access. This can be done through design techniques including building orientation, street and lot layout, vegetation, and the protection of solar access within a development. Similarly, Cromwell encourages the preservation of solar access in site designs and discourages the erection of buildings that would shade the buildable parts of adjoining lots on the shortest day of the year.

KM:ts