Transcript Distributive Electrical Generation and Land Use Ordinances

Distributive Electrical
Generation Systems
ARE LOCAL ZONING AND
BUILDING CODE
REQUIREMENTS PREEMPTED
BY STATE LAW?
City Zoning Ordinances
 Cities have regulated distributive electrical generation
equipment (solar energy systems, wind energy systems,
etc.) in various ways, but many do not specifically
regulate them but treat them as an accessory use.
 Kansas City’s zoning ordinance allows “accessory solar
energy systems” as accessory uses on single family lots,
but requires that ground-mounted systems be located in
rear yards, and comply with setback requirements. Only
building-integrated and flush-mounted systems may be
installed on street-facing building elevations.
City Zoning Ordinances
 St. Joseph recently passed an ordinance which begins with a
statement that “solar capabilities may not be possible or
feasible on all properties within the City of St. Joseph.”
 It allows Accessory Solar Energy Systems in any zoning
district, allows roof mounted panels which do not extend
beyond the edge of the roof, and which do not extend more
than 3 ft. above building height limits.
 It allows ground mounted systems only in rear yards, and they
must comply with side and rear setback requirements for
accessory structures.
 It prohibits homeowners’ covenants from restricting or
limiting solar energy systems to a greater extent than the
ordinance.
Missouri Law
 The right to utilize solar energy is a property right in Missouri.
§ 442.012.1, RSMo.
 Missouri’s Renewable Energy Standard requires that the Public
Service Commission prescribe rules that require electric utilities
to generate or purchase a certain percentage of their electricity
from renewable energy sources. § 393.1020 et seq, RSMo.
 The PSC regulations provide for “customer-generators,” to
receive rebates for the cost of the systems, and requires that they
be allowed to connect their systems to the electric utility and
generate back their excess energy to the utility and receive
credits. 4 CSR 240-20.100.
 To be eligible for a rebate your system must be installed in a
location where at least 85% of the solar resource is available to
the system.
The Problem
 Some believe these systems are unsightly and do not
belong in traditional, particularly upscale, residential
areas.
 City zoning requirements to make these systems
more aesthetically acceptable may eliminate a
property owner’s ability to place system in a location
which allows it to be effective, and which allows a
system to qualify for rebate under the PSC
regulations.
The Lawsuits
 Babb v. City of Clarkson Valley
 The Babbs applied for a building permit to install a solar
energy system. City then passed an ordinance requiring
special use permit. Babbs applied for SUP and were denied.
 Babbs appealed in Cole County. Circuit court ruled in Babbs’
favor. Court held that 442.012.1 RSMo confers a legally
protectable right to the Babbs to use solar energy at their
property, and that they have a legally protectable right to
participate in the rebate program authorized by the state
regulations. Court held that the City’s building and zoning
ordinances were preempted by the state regulations. City’s
decision denying the SUP was arbitrary, capricious,
unreasonable and an abuse of discretion.
The Lawsuits
 Babb v. City of Clarkson Valley (cont.)
 Court ordered that the city issue the SUP and
building permit, and if they did not do that in one
business day from the date of the order, the Babbs
were authorized to install the system.
 City has appealed, WD76384.
 City argues that there is no preemption because the
PSC regulations specifically require that an applicant
obtain a local building permit, and because the City
is expressly authorized to enact building and zoning
codes by statute as part of its police powers.
The Lawsuits
 Babb v. City of Clarkson Valley (cont.)
 City argues that preemption forbids a conflict with
state law, but that local regulations may exceed state
requirements if they do not prohibit what state law
permits. Borron v. Farrenkopf, 5 SW3d 618, 622
(Mo. App. 1999).
 The PSC has intervened as a respondent.
The Lawsuits
 Balogh v. Board of Zoning Adjustment of City of St.
Joseph
 Baloghs applied for a variance from the accessory use
setback requirements so that they could locate a solar
energy system in their front yard. If they located the
system as required by zoning ordinance, they could not
comply with the minimum 85% requirement that the
state regulations impose to qualify for a solar rebate.
City denied the variance.
 Baloghs argued that if the city regulations effectively
prohibit the solar installation on their property at a
location that qualifies them for a rebate, then they
prohibit what state law allows and are therefore
preempted.
The Lawsuits
 Balogh v. Board of Zoning Adjustment of City of St.
Joseph (cont.)
 Circuit court, in July, upheld the City’s decision that
denied the variance, finding that “far from preempting
local regulations, 4 CSR 210-20.100 contains no
restriction on local laws.”
 Court held that neither the state statute nor the state
regulations are inconsistent with reasonable zoning
regulations.
 Court noted that the state regulations require compliance
with local building and permitting requirements, and do
not state any restriction on local regulations.
Conclusion
 The preemption issue may be resolved by the court
of appeals in the next year.
 There certainly will be more lawsuits against cities
and against homeowners’ associations that do not
allow these, or that restrict them so that many
homeowners cannot install them.