Solar energy vs. shade - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 107

appropriation doctrine. The statutes seem based on the presumption
that neither Solar Users nor their Neighbors already possess rights in
the airspace at issue. In truth, Neighbors of Solar Users do hold such
rights under common law.
The New Mexico and Wyoming statutes are not the first-in-time
rules they purport to be, but they do adjust or reallocate existing
property rights among landowners based on priority in time of use.
They can thus generate many of the same unintended consequences
associated with first-in-time rules. California's Solar Shade Control
Act and the Wisconsin and Massachusetts permit-based solar access
statutes are like the New Mexico and Wyoming statutes in this regard.
All of these statutes enable Solar Users to unilaterally acquire rights in
or impose restrictions on Neighbors' airspace, but only to the extent
that the airspace is not already occupied. Such approaches promote
solar energy development by motivating Solar Users to install solar
collectors quickly before Neighbors make use of the airspace needed
for solar access. They may also, however, encourage opportunistic
landowners to install solar panels with ulterior motives of acquiring a
view easement across Neighbors' property or of preventing or delaying
Neighbors' more productive uses. The rules might also motivate
Neighbors to overdevelop their properties with trees or structures
to avoid forfeiting their airspace rights to new Solar Users. Because
they impose individualized burdens based on the needs of individual
private landowners and without compensation, the rules are also more
vulnerable to constitutional challenge.
(Troy Rule, Shadows on the Cathedral: Solar Access Laws in a
Different Light , 2010 U. Ill. L. Rev. 851, 876-78 (2010))
Wyoming's and New Mexico's unusual solar access policies remain
enforceable today. Only time will tell whether the same sorts of contro-
versies that surrounded the SSCA will ultimately provoke legislators to
modify these laws so that they are more efficient and more equitable to
neighboring landowners.
Shade-based zoning, setbacks, and fences
Some solar access policies take a very different approach to those just
described, seeking to prevent solar access conflicts ex ante through zoning
and building codes rather than addressing solar access conflicts as they
arise. Although this strategy certainly prevents solar access disputes, it too
can lead to the under-use of scarce airspace resources. As the following
excerpt argues, such laws are seldom desirable from a policy perspective.
[Another] approach to promoting solar access is to impose setbacks
and height restrictions in zoning ordinances designed for the sole