Solar energy vs. shade - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 101

embraced the doctrine. In early United States history, several state
courts allowed landowners to obtain prescriptive easements for sunlight
access. 10 However, by the turn of the twentieth century, courts in the
U.S. were far less willing to enforce such rights. 11 Courts in Australia
and New Zealand have also largely rejected the notion of prescriptive
rights to light. 12
Some courts and policymakers have opposed the doctrine of ancient
lights because of its potential to preclude more dense development—
a land use that often constitutes a more valuable use of scarce urban
airspace. 13 Over time, modern electricity grids and the invention of
the incandescent light bulb surely diminished support for the doctrine
as well by making sunlight access far less critical to the enjoyment of
land. Regardless, even in jurisdictions that embraced the doctrine, its
mandatory twenty-year prescription period makes it of negligible value
to most parties interested in protecting their investment in new rooftop
solar arrays.
Nissho-ken: solar rights in Japan
Japan is another country with laws that offer some degree of solar access
protection to landowners. In Japan, a nation with a relatively high
population density and several cities filled with high-rise buildings, citizens
have come to place a particularly high value on the benefits of direct
sunlight access. Landowners in Japan enjoy some limited legal rights to
sunlight access—something that Japanese courts have held is a critical
element of healthy living conditions. This Japanese theory of rights to
sunlight, or nissho-ken , generally prevents neighbors from developing land
in ways that would deprive nearby parties of a specific minimum amount
of sunlight access. 14
As Japan was rapidly rebuilding its nation after World War II, a rapid
proliferation of dense development in the country led to hundreds of
landowner disputes over sunlight access. 15 From 1968 to 1974, nearly 300
different citizens filed claims with the Tokyo District Court alone seeking
injunctions against construction projects that threatened to interrupt the
flow of sunlight and air to their homes. 16 In one such case, Mitamura v.
Suzuki , the Japanese Supreme Court held that the plaintiff, Mitamura,
was entitled to compensation for a new building's obstruction of sunlight
to Mitamura's home. 17 Within a few short years after this 1972 decision,
hundreds of Japanese cities had enacted laws aimed at protecting sunlight
access for existing buildings. 18
Unfortunately, although landowners in some parts of Japan possess some
minimal solar access rights, it is not at all clear that the nation's nissho-ken
laws are broad enough to protect against solar panel shading. Such laws
seem to be aimed primarily at protecting enough sunlight and air to provide
for a healthy life, not to protect an investment in a solar energy system.