Engle, Lawrence D.

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In the Public Interest Volume 2 Number 1 Article 7 10-1-1980 Access to the Sun: A Legal Survey Lawrence D. Engle University at Buffalo School of Law (Student) Follow this and additional works at: https://digitalcommons.law.buffalo.edu/itpi  Part of the Property Law and Real Estate Commons Recommended Citation Lawrence D. Engle, Access to the Sun: A Legal Survey, 2 Buff. Envtl. L.J. 21 (1980). Available at: https://digitalcommons.law.buffalo.edu/itpi/vol2/iss1/7 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in In the Public Interest by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. Access -to the SunA Legal SurveyBy Lmre D. FhgleThere is, in the United States -and many otherindustrialized countries, a large scale use of energyrepresenting a unique event in the Earth's history.Ihe present century has demonstrated the most rapidtechnological development in history, and with it amonumental consumption of fuel. In the last thirty.years the United States has used more minerals andresources than the whole world used in history.We are frustrated over the continuing "energycrisis" and search for the answers to a manageableproblem. As a result of our efforts to minimize ourdependence upon foreign energy sources and maximizeour discovery and implementation of renewable energyresources, we have become increasingly interested inthe utilization of solar energy technologies. Theadvent of solar energy raises a multitude of legalissues related to the right of access to sunlight.The most important requirement of a solarenergy system is the certainty, of access to directsolar radiation. The effectiveness of the system isdirectly dependent upon a continuous supply of directsunlight. We will see that virtually all attempts toassure solar access inherently conflict with theinterests of a legal system of land use and ownershipthat has traditionally ignored the sun.Ancient Lights-Prescriptive EasementThe English doctrine of Ancient Lights ischaracterized as a prescriptive negative easement.An easement is the right of use over the property ofanother. The prescriptive easement was created if aLandowner had continuous17 received and used sunlightErom across his neighbor's land for a certain periodof time, usually 20 years. The property interestthus created was the right to the use, enjoyment ofand access to the sunlight.The American courts rejected the Englishdoctrine in Fontainebleau Hotel Cp v. Forty-Five£went-Five, Inc., 114 So. 2d. 357, Fla. App.(1959). That case involved two luxury beachfront-hotels in Miami Beach, the Fontainebleau and the EdenRoc. The Eden Roc sought to enjoin the owners of theFontainebleau from continuing with the construcaionof a four*teen story addition to their hotel. TheEden Roc owners claimed that, when completed, theadded structure would completely shadow the EdenRo's swimming pool and lounge area. The Eden Rocclaimed the right to the uninterrupted use andenjoyment of the sunlight based on the doctrine ofAncient Lights.In,dismissing the argument, the court said:T o Am'erican decision has been cited, andindependten research has revealed none, in whichit has been held that - in the absence of somecohtractual or statutory obligation -- alandowner has a legal right to the free flow oflight and air across the adjoining land of hisneighbor."The Florida District Court of Appeals added:"If...public policy demands that alandowner-refrain from constructing a buildingupon his premises that will cast a shadow on theadjoinging premises, an amendment of (the city's)comprehensive planning and zoning ordinance,applicable to the public as a whole, is the meansby which such purpose should be achieved.Present 1eal1 COWEtSAccording to American principles in the absenceof easement there is no legal right to theunobstructed use of light and air passing from theadjoining lmd Since there is no lawful right inthis country to the free flow of light and air acrossyour neighbor's property, there is no cause of actioneven when injury, economic or otherwise, results fromthe loss of air and light.The injury incurred by the Eden Roc Hotel wasan economic injury due to a loss of profitabletourism and the additional expense of a new poolarea. The Fontainbleau case clarifies the precedentestablished by earlier cases, that an easement byprescription or any other right to the use ofsunlight would be synonymous with having outrightownership of that light.The very nature and properties of light and airare such that they do not flow in definite channelssuch as water, but rather, they arecharacteristically diffused. As suggested by thecourt in Keats v. Hugo, 115 Mass. 204, 215 (1874),the actual enjoyment of "light by the owner of thehouse is upon his land only" and is not dependent onthe "tangible or visible use of the adjoining lands."If an adjoining landowner constructs an obstructionto light, he has not actually encroached upon hisneighbor's rights.It is, however, possible to acquire the rightsto sunlight as it passes over your neighbor'sproperty by easement. We have dealt briefly with theprescriptive easement which was the majorcharacteristic of the English doctrine of AncientLights. Since certainty is the dominant requirementfor protecting access to sunlight, the extensive timeperiod involved, after which a prescriptive easementwould be established, is a major obstacle to the useof prescriptive easements as a viable and practicalmeans of assuring access to direct sunlight.In The Public Interestfall 1980 page tiventyi-oneAccess to the Sun...iand Use ControlsExpress easements, created by grant, covenant,reservation, or some other consensual agreement, arepresently the most reliable method of insuringuninterrupted access to sunlight. The agreementtraditionally specifies angles', height limitations,and setback requirements of both buildings andvegetation. The express agreement may be betweenindividual landowners, may be stipulated by deed inthe transfer of property, or in the generaldevelopment plan of the land developer. Howevercreated, the express easement establishes a vested.interest in real property and secures legal rightsand remedies to the free flow of light and air fromadjoining land.There are, however, drawbacks to these directagreements. It has been held that easements forlight and air are property rights which have anassessable monetary value and can be bought, sold,conveyed, leased and taxed. Although directagreements provide a flexible method of fulfillingthe direct sunlight requirements of individual solarenergy systems, the added cost of purchasing theEasement and the possibility of tax liability maycertainly limit their usefulness. -If solar energy is to reach a significant levelof use it will be necessary for legislatures, at alllevels of government, to declare policy andpromulgate regulations that encourage the domesticuse of solar energy.In 1974, Congress declared that it was thepolicy of the federal government to 'pursue avigorous and viable program" to assess and develop"solar energy as a major source of energy foT our.national needs." (Solar Energy Research,Development, and Demonstration Act of 1974)Congress, however, is limited in its authority toenforce federal land use policy upon stategovernments. It is therefore imperative that statelegislatures and local planning boards encourage andaccount for the viability of solar energy.Significant legislation and regulati6n ofaccess to sunlight has been derived from and Wrtteninto a variety of building codes and zoningregulations. In The Village of Euclid v. AmblerRealty Co., 272 US 365 (1926), the United StatesSupreme Court held that zoning was within the policepowers of the state. The police power of the state'is the power to enact legislation to protect thehealth, safety, and general welfare of its citizens.(See: California Solar Rights Act of 1978, Cal Civ.Code §714; New Mexico Solar Rights Act of 197a, N.M.§§ 47-3-1 to 47-3-5, 1978).While it is the power of the state tolegislate, the states generally have delegated thepower to enact land use regulation to the localities.I)4! ,.- iJage twenty-two in The Public interest vol. 2 no. Ipage tiventli,-twovol. 2 no. II4//In The Public InterestAccess to the Sun...The authority granted to the local governmentsinclude the regulation of height, density, andsetback requirements for buildings and otherstructures, along with the location and use of thosebuldings and structures, for the purpose of providingadequate light and air. Since regulation of land-useis generally delegated to the localities, solarexposure needs can easily be modified and adapted tolocal needs, use and density requirements, as well asto local geography and climate.Land-use controls could prove to be a mostefficient and effective method of allocating solarrights if they are designed with a comprehensive,holistic attitude.Regulating land use, as a means of securingunobstructed access to sunlight is not withoutlimitations. The first obstacle is that land usecontrols for solar access are not practical in wellestablished and dynamic urban areas. A new "solarattitude" will naturally conflict with long-implemented procedures which have traditionallyignored the sun. Established zoning procedures mayalready be too restrictive and therefore notconducive to implementation of solar energy systems.It is not uncommon for restrictive convenants andstatutes to require that new buildings "conform toand be in harmony with existing structures in thetract." (Jones, Restriction of Solar DevicesiEnvironmental Affairs, Vol. 8:33, p. 30, 1979)Prospective solar energy system owners shouldbe fiiiliar with legal remedies in their quest tocircumvent and mitigate the potentially adverseeffects of restrictive convenants. The prospectiveowners have several options available in overcomingthe restrictive provision. First, (s)he may apply tothe zoning appeals board for a variance. A varianceis an authorization to a property owner to departfrom literal requirements of zoning.Nancy Lee Jones, in the Fnvironmental AffairsJournal, suggested the following arguments that maybe used to avoid or terminate the application of arestrictive covenant or regulation: (1) there hasbeen a major change in the neighborhood; (2) thecovenant works a general hardship upon the landowner;(3) the person or organization seeking to enforce thecovenant has failed to proceed with reasonablepromptness; and (4) that the covenant or regulationis void as against public policy, i.e., it isinjurious to the interests of the society indeveloping a renewable energy source and that it isadverse to national energy plicy.As a second option, the zoning provision can bedirectly attacked, on constitutional, as well ascommon-law grounds. The Fourteenth and FifthAmendments to the Constitution place three basicrequirements on the power of a government to zone:1) the statute, in compliance with the DueProcess Clause of the 14th Amendment, must bear arational relationship to the police power of thestate;2) the statute must not be so arbitrary,capricious and discriminatory that itsrestrictions pose a denial of the EqualProtection requirements of the 14th Amendment;and'3) the statute must not so devalue the land as toconstitute a taking without just compensation inviolation of the Eminent Domain power of the 5thAmendment.Courts have consistently affirmed the decisionsof boards of zoning appeals but, in doing so, haveestablished guidelines for their determinations.Thus, applicant must demonstrate practicaldifficulties or significant economic injury.Moreover, the hardship can not be self-created, andthe applicant must prove more than personalinconvenience. Finally, the applicant must show thatthe zoning appeals board acted in a mainer that wasin some way arbitrary, capricious, irrational orindicative of bad faith.A further limitation of lands use controls isthat they do not fulfill the most urgent requirementof certainty. Zoning ordinances are not bindingcontractual agreements by the government but,rather,are legislative acts which may be modified bygovernment. As a result of their tenuous authority,zoning regulations can be readily amended or appealedby government. It is also important to realize thata zoning regulation does not create a vested interestin an individual property owner.Tax bientivesState legislatures have also taken steps tomitigate the economic hardships of installing solarenergy systems. Dale Goble noted, in the Oregon LawReview, that at least 25 'states offer some form oftax incentives for solar energy systems. Five of themost common programs include: (1) a depreciationallowance for the cost of the solar device; (2) theapplication of a lower rate of taxation to the valueof the collector; (3) a property tax exemption for atleast part of the purchase and installation cost; (4)an income tax allowance for part of the systems cost;and (5) an exemption from sales tax.In our effort to develop a legal framework forthe domestic use of solar energy, we must considerand analyze all legislative and judicial options.There is no "perfect" plan that is custom fit tosatisfy the idiosyncracies of individual solar energysystems. Rather, we must be aware of the flexibilityof the legal system and develop those options as bestsuited for the local use and density requirements aswell as its geography and climate. It is essentialthat legislatures review and modify existing policyand legislation so that it will efficiently accountfor the allocation of solar energy resources. 0In The Public Interestfall 1980 page tivent)-three

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