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.
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.