“Don’t Block My Sun”/“Don’t Block my Solar Installation”

Tips for Putting Your Best Foot Forward with Confused Local Governments and Upset Neighbors

I have lately been receiving an increasing number of unsolicited calls from homeowners, solar installers and would-be owners of solar energy systems who are running into conflict with their neighbors and local municipalities regarding the installation and operation of solar energy systems.  As the number of solar energy systems (photovoltaic and solar hot water) increase, some of the controversy that has long dogged wind farm developments is starting to spill over to solar installations.  This blog entry is an effort to provide some general tips to the parties who are involved in these disputes and help them minimize cost, controversy and confusion.

Here are a few tips that draw on my experience as an energy transactions attorney and former city attorney to help persons who own or are interested in installing solar energy systems to work and negotiate constructively with neighbors and local governments:

Tip #1: Know and understand the Wisconsin laws that provide protection to persons with renewable energy systems.  These laws cover wind and solar and detailed discussion of each of these laws and the reported cases interpreting them is beyond the scope of this blog entry.  However, a listing and summary of them can be found on the DSIRE website, see: http://www.dsireusa.org/incentives/incentive.cfm?Incentive_Code=WI04R&re=1&ee=1.

Generally speaking, when applied to solar energy systems these laws attempt to:

  • Protect the rights of persons who own or wish to install a solar energy system, while balancing these rights against the reasonable expectations of neighboring property owners who might want to put on an addition to their home or office. If your solar energy system is already in place, you have greater rights than a person planning a solar energy system.
  • Limit the basis on which local governments and private land use controls can prohibit or regulate solar energy systems.
  • Protect and preserve access to the sun.  This includes providing recourse for when a neighboring property owner creates a “private nuisance” by improperly blocking access to the sun.

Tip #2: If you are seeking local approval for a solar energy system, bring these statutes into the discussion early in the process.  While some of the Wisconsin laws that protect solar energy systems have been in place since the 1980s, the calls I have received suggest that many local officials are unfamiliar with them.   Therefore it is critical to inject them into the discussion as early as possible.  It may be necessary to educate the local municipal planner, building inspector and perhaps even the local municipality’s attorney on the applicable laws protecting solar energy systems.  Doing this increases the likelihood that the discussion over your system will focus on the relevant legal and factual issues, and not get sidetracked by emotionally charged local concerns that are irrelevant or pre-empted by State law.

Tip #3: Try to resolve disputes at the lowest level.  It costs less and takes less time to resolve an issue at the Plan Commission level than have to overturn an unfavorable plan commission decision at a follow up appeal before the Zoning Board of Appeals.  It can be much cheaper (perhaps by as much as a factor of 10 or even more) to resolve a dispute over a solar energy system before a local government board than to go in unprepared, lose before the municipality and then have to fight it out all over in Circuit Court.  I sympathize with homeowners who lack the funds to hire an attorney or are understandably reluctant to spend money on legal fees before they know they have a fight on their hands.  If this describes you, then I recommend you meet with the local planner early and flush out any issues or concerns they, the local body or your neighbors may have.  If there will be objections, you may find that, “An ounce of prevention, is worth a pound of cure”.

Tip #4: Make a record and stick to the law/facts. If you find yourself embroiled in a controversy over your solar energy system, keep in mind how such disputes are resolved.  If legal issues emerge at the local level the local government may involve the local municipal attorney to provide some legal analysis of the issues.  When I was a municipal attorney I had a number of duties, including seeing that my clients followed the applicable law.  Help the municipal attorney to do his or her job by addressing the legal issues directly and succinctly.

If you are unlucky enough to find yourself on the way to Circuit Court, remember that the woman or man who will ultimately resolve your dispute will be not a scientist or a renewable energy supporter, but rather a judge (i.e., a person with a law school education and a lawyer’s perspective on legal issues).  For this reason as well, it is critical to stick to the relevant facts and applicable law.

Based on the calls I have been hearing lately, here are some suggested dos and don’ts:

  • Don’t surprise the government body and do invest time in educating decision-makers and even potential opponents.  Surprising witnesses helped TV lawyer Perry Mason obtain murder confessions in the 1960s show, but surprise is rarely an effective technique at the local level.  Local officials may become frustrated or may even angry when they are surprised by new issues raised in an approval proceeding.  In addition, injecting new issues at the last minute invites the local decision-maker to push the matter back to a later meeting.  This costs you money and delay.  It pays to get your ducks in a row and invest the time necessary to educate staff and even potentially upset neighbors before you go before the local body.
  • Do make a record.  This includes creating a paper trail that inserts the applicable statutes and relevant facts that support you with a narrative that puts your project in the best possible light into the local decision making process.   Pay attention to how the proceeding will be recorded.  If the only record of a meeting will be the local clerk’s notes, you are well-advised to submit a written summary of your position that puts your best foot forward.  Otherwise, you are hanging your hat on the clerk’s selective memory as to what was said.  Even recorded proceedings can have subsequent problems with microphone pick up or technical difficulties.  Without a record, an appeal can deteriorate into dueling memories.  This puts the appellate body is at a disadvantage and hurts you if you are appealing.
  • Do remember that local decision-makers are people just like you.  Members of local commissions and boards don’t get paid a lot of money.  It is common for them to take a fair amount of grief in the course of performing their duties.  Treat them with kindness or at least respect.  It can’t hurt and may help.
  • Don’t fall prey to the temptation to make political or activist statements. Heaping praise or scorn on current and past politicians for their commitment or lack of commitment to renewable energy is not germane to the decision on your local permit.  Nor is it relevant or helpful that you were down with solar, before solar was cool, and therefore you believe that you are more highly evolved than the rest of your neighbors.  Politically charged or activist statements are risky, especially in a state like Wisconsin, where opinions appear to be evenly divided on most policy issues.  Stick to the objective facts and relevant laws.

These tips of course don’t, by themselves, guarantee success, but if you follow them, you will increase the likelihood that your project will be evaluated and hopefully approved based on the proper criteria.

Good luck!

Required Formal Disclaimer:  Since what follows involves some discussion of legal principles, there is at least a theoretical possibility that one of you out there may read this blog entry and conclude that: (a) you and I have entered into an attorney client relationship; or (b) I am offering you specific legal advice for your specific legal situation.  In the unlikely event you reach either conclusion, I must inform you that sadly, it is not true.  Persons accessing this site are encouraged to seek independent counsel for advice regarding their individual legal issues.

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Colleen Wenos Joins Energy Law Wisconsin

In the spring, Energy Law Wisconsin hired its first
paralegal, Colleen Wenos. Colleen has a BA in English from the University of
Wisconsin Stevens Point, previous work experience in magazine publishing and
marketing, and an affinity for dark chocolate.
(The last item put her over the top in the job interview.)  Colleen is currently pursuing a legal
certificate from Madison College and plans to take two courses this fall.

At Energy Law Wisconsin, Colleen will support the firm in
its efforts to provide clients affordable legal services, by performing legal
and business research, assisting in contract drafting, and helping with
day-to-day business needs.

Welcome, Colleen!

Taking on Risk at the Small Wind Conference

On June 14, I presented “How to Limit Your Risk in a Small
Wind Business” at the Small Wind Installers Conference in Stevens Point. There were about 250 attendees, including installers, manufacturers, utility representatives, environmental
groups and government agency representatives.

I was part of a panel titled “Reality Check: Legal and Insurance Issues,” where I joined two small wind installers who had faced liability concerns in New York and New Jersey.  The situations they described were especially difficult for wind installers as they appear to have been the subject of claims for liability, even though by all accounts there were not defects in their installation efforts.  Insurance agent Alan Virgil also spoke on how to insure a small wind business.

During my presentation about how to manage risk in the small wind industry, I gave the audience suggestions on how minimize risk generally,
providing two fundamental risk management principles and five risk management “commandments” to help keep them out of trouble.  If you would like a copy of the overheads from this talk, just e-mail me at mallen@energylawwisconsin.com.

The heart of my message was that up-front planning is critically important when forming a business and entering into a wind project
contract to ensure risks are allocated fairly and that wind energy entrepreneurs don’t expose themselves to unwarranted amounts of liability.

The Small Wind Installers Conference was a great opportunity to talk to leading national players in the small wind industry and discuss the
latest developments in state and federal renewable energy policy.

Japanese Attorney Visits Energy Law Wisconsin

On May 25, Mitsuko Kawamoto, a practicing attorney from Tokyo, Japan, visited Energy Law Wisconsin with her husband Yoshimizu (Mitch) Kawamoto, and their energetic two year old son Yoshiharu (Hatch) Kawamoto.   Mitsuko is a visiting scholar with the recommendation of the Japan Federation of Bar Association at the University of Illinois Law School in Champaign, Illinois. She is particularly interested in legal issues associated with the production and regulation of bio-ethanol.

I met Mitsuko in April 2011, when I spoke at the 3rd Annual Law Advanced Biofuels Law and Regulation Conference at the University of Illinois, sponsored by the Energy Bioscience Institute (EBI).  EBI is a research and development organization that harnesses advanced knowledge in biology, the physical sciences, engineering, and environmental and social sciences to devise viable solutions to global energy challenges and reduce the impact of fossil fuels to global warming.

Mitsuko and I discussed the practice of law in Japan and the United States’ system of federal, state and local laws that regulate energy and the environment.   Specifically, Mitsuko was interested to know:

  • When does a federal law “trump” a state or local law?
  • What are the differences between energy policy in Wisconsin and Illinois?
  • How to build a career as an energy attorney after graduation from law school.

My meeting with Mitsuko was a good reminder of the significant differences between the practice of law in the United States and overseas.  Among other things, Mitsuko shared that virtually no attorneys in Japan specialize in energy law.  This may seem surprising, given Japan’s highly industrialized economy and heavy reliance on energy sources including coal, nuclear and renewables.   We each appreciated the international perspective.  In addition, Hatch showed great promise for a future career in the energy industry, happily playing with a toy electric and gas utility truck in the office.  I enjoyed lunch with Mitsuko and her family before they left to visit the Wisconsin Capitol and the University of Wisconsin campus.

Mitsuko is the second international attorney I have had the privilege to visit with in the past 12 months, following my earlier meeting with Ugandan attorney Alex Buri.  Even for a solo practitioner in Wisconsin, the energy world is getting flatter.

What is “Energy Law Wisconsin” : A Collection of Actual Project Photos

Many people have asked me, “Just what is Energy Law?”  I have quickly learned that to answer this question with precise details of the laws in place and tasks involved is a good way to make peoples’ eyes glaze over.

It is easier to explain what I do is by showing the results, so here are a few pictures.  These are the types of projects I help people with:

Wind Energy         Solar Farms

Efficient Cogeneration Power Plants 

LEED Certified Buildings

Other types of projects I work on that are not pictured above include replacing coal with biomass as a fuel for power generation, helping energy startup companies  get off the ground (kind of like holding your hands around a newly struck match while starting a campfire on a windy day), and helping municipalities convert garbage and sewage into energy.

There are a host of legal issues wrapped up in the journey from start to finish on all of these types of projects.  They include legal issues relating to raising money, protecting new ideas, getting government approvals, contracting for labor and materials, connecting to the electrical grid, putting together a financial package of grants, tax credits and other incentives and positioning the project for optimal use of renewable energy certificates and carbon credits it may produce.

My plan is to share a few of my stories from my practice. I’ll try to weigh in on some of the issues that people face when trying to change the energy status quo.  If you have any comments I’d love  to hear from you.  I’ll do my best to answer questions, time permitting.