Attorney Services Are Needed for Solar Power Project Conflicts

TASA ID: 971

Attorney Services Are Needed for Solar Power Project Conflicts

Benefits of Solar Power Collection Systems

The high cost of energy - both monetary and environmental - has compelled many property owners to install solar collection systems to provide electric power for their property. The very idea of collecting our own power on our own property, independent of the utility company or foreign fuel sources, strikes most of us as quintessentially American. Solar collection systems are currently subsidized by state and federal programs and can be sized to reduce a property owner's electric bill to effectively zero. Despite these benefits, the proliferation of solar collection systems has created conflicts among property owners, utilities and municipalities. Attorneys and engineers can help resolve these conflicts.

The Need to Regulate

To those for whom solar energy is being produced, the array of smooth glass panels on the roof or in the field can be a beautiful sight.  This beauty sometimes eludes the neighbors.  If not installed properly, a solar array can visually intrude on neighboring properties and can cause distracting or dangerous glare for motorists.  Many municipalities have drafted ordinances with restriction on the height, orientation, visibility and angle of solar panels.  In many instances, the least obtrusive position for solar panels is one that prevents it from collecting energy at its peak potential.  As a result, a compromise must be struck between regulation and efficiency.  An experienced attorney can assist a municipality by crafting language that creates reasonable and fair provisions in an ordinance.

 How PV Systems Work

Photovoltaic (PV) panels are the most popular method of gathering electrical energy from the sun. PV solar panels use two layers of silicon film. The upper layer contains boron and the lower layer contains phosphorous. When sunlight strikes these layers, the solar energy creates an imbalance in charge between the two layers which causes direct current (DC) to flow through wires connected across the two layers of silicon. This DC power is converted to alternating current (AC) at a voltage that is useful for common energy needs. Most PV systems are connected to the electric utility grid. This connection allows energy to flow into the grid when the solar array is producing more energy than the property owner is consuming, such as on a sunny day in May when the property has little demand for heating, cooling and lighting. This surplus energy is made available to other users on the grid and allows the generating stations to ramp back production, resulting in fuel savings and less demand on the utility's generating equipment.

The property owner benefits from this flow of energy into the grid because his/her electric meter spins in reverse when the PV system is producing more energy than his property is consuming. A net meter records the net sum of energy taken from the grid minus energy given back to the grid, so that the property owner pays only for net electrical usage.

Understandably, public utilities take a keen interest in how PV systems are integrated into their infrastructure. Engineers play a key role in helping a property owner to navigate the regulations set forth by the public utility and the National Electric Code to protect the grid and the personnel who work on the grid.

 Liability Involving Solar Power Systems

 Failure to Provide Safety Features

Fire fighters and technicians perform work that would be dangerous unless the power within the building is disconnected. Most buildings are powered by a connection to the public utility line in the street. When these at-risk workers enter a building, they can disconnect the power from the street and be confident that no electrical energy will be encountered within the building. In a building powered by a PV system, however, these workers must be alerted that the building is powered by a generating system that continues to energize the electrical system after the connection to the street is cut off. Engineers follow codes and regulations to specify cut-off switches and instructional signs. The National Electric Code requires these warnings and controls to be installed adjacent to the utility cut-off switch so personnel working within the building will see them at the time they disconnect the utility feed. If these safeguards are not property specified or not properly installed, personnel entering the building are at risk. Failure to provide these safety features can expose the engineer, owner, or the installer of the PV system to liability. Furthermore, the municipality may be exposed to liability because of its responsibility to enforce code.

Roof Structure Problems

When a solar array is mounted on a roof, measures must be taken by the engineer, builder and municipality to ensure that the roof structure has sufficient strength to support the additional loads imposed on the roof by the weight of the panels and by the concentration of wind and snow loads through the fasteners that attach the panel support framework to the roof. Roofs adjacent to the roof that supports the panels may be subject to additional load or potential for leaks caused by snow or ice that may slide from the panels.

Both roof-mounted and ground-supported solar arrays must be designed to prevent the panels and/or the framework from becoming detached during high winds. If the municipality has not taken appropriate measures to ascertain compliance with structural codes and practices, it may be exposed to liability associated with structural failure of panel supports.

Electrical Code Enforcement

A similar responsibility relates to the electrical safety of the solar power generating system. The same codes applicable to a conventional building electrical system must be observed and enforced for the PV system. Municipalities are responsible for performing review of the electrical plans and inspection of the work using personnel who are properly trained and experienced in solar power generating systems.

Ground-Mounted Panel Safety

Solar panels mounted on the ground can become an attractive nuisance for children who may be tempted to climb the support framework. Children who see a solar array as a giant piece of playground equipment are at risk of injury from falls, sharp edges and exposed wires. Property owners should consider these hazards and municipalities should require supervision or barriers for a PV system, as most require for a swimming pool or an unoccupied structure.

Stormwater, Erosion, and Other Potential Environmental Problems Caused by Ground Panels

Many municipalities require land development plans for sites with large ground-mounted systems. The installation of large, impervious arrays of solar panels on a previously open field concentrates storm water run-off along the lower edges of the arrays. This concentration of water run-off can cause erosion unless measures are taken to divert and/or absorb the energy. In addition, the disturbance of the earth during the installation of supporting structures and the excavation of trenches for underground wires can cause soil to wash into down-hill areas where damage might be done to habitats - both human and animal - unless proper measures are taken. For large ground-mounted PV projects, many municipalities require land development plans, including stormwater and erosion control, to be prepared and sealed by a qualified civil engineer.

How Engineers Can Work with Attorneys on Solar Projects

Municipal ordinances and building codes require that certain aspects of the system be designed specifically for the site on which it is proposed. The PV system components are typically not designed by the engineer who designs the PV system assembly on site.

Structural engineering is required to ensure that the racking system that supports the panels is strong enough to prevent the solar panels from flying into the neighbor's living room or the windshield of a passing car during high winds. This engineering is normally performed by the manufacturer of the racking system that is sold as a pre-engineered system.

By contrast, the strength of the roof or the soil to which this pre-engineered racking system will be anchored must be evaluated and modified, if necessary, by a structural engineer who examines the installation site. Most municipalities require structural engineering seals on design documents produced by the racking system manufacturer. Municipalities should also require sealed plans from a separate structural engineer who is responsible for examining the supporting structure or soil and for specifying anchoring systems and structural reinforcement required to marry the pre-engineered racking system to the installation site.

As with pre-engineered structural components, solar panel installers rely on the manufacturer's electrical engineers to design the manufactured electrical components of the PV system. These electrical components must bear Underwriter's Laboratory (UL) labels attesting to safe operation, under the specified conditions. These manufactured electrical components include solar panels that convert sunlight into DC power, combiner boxes that combine power from groups of panels, and the inverters which receive DC power from the combiner boxes and convert it to AC power that can used by the building's electrical system and by the utility grid.

The assembly of these UL-labeled electrical components into a functioning system on the owner's site must be designed by a separate electrical engineer. The configuration of these devices; the sizes of the conductors that connect them; the location of safety disconnects; the location of grounding devices; the design and location of warning/instructional notices; and other considerations governed by the National Electric Code must be detailed in drawings. Municipalities require these drawings to be prepared and sealed by an electrical engineer.

 What Attorney Services Are Needed?

 Attorneys can assist municipalities by drafting ordinances to regulate the configuration of solar panels. As explained earlier, many aspects of a PV system which are not regulated by the building code have an impact on neighbors. Municipalities can retain the services of an attorney to draft ordinances that regulate these aspects. The following considerations are examples of some that might be found in an ordinance designed to regulate solar collection systems:

1.  Limitation of the types of properties and districts in which PV systems are permitted

2.  Limitation of the physical size of PV arrays

3.  Restriction of quantity of power produced  (PV systems designed to supply on-site power needs must
     meet different regulations than those designed to sell energy to off-site customers.)

4.  Limitation of the height of PV arrays above the roof and above the ground

5.  Limitation of PV arrays ton portions of roofs visible from the street or adjacent properties

6.  Restriction of PV arrays in historic districts or other special districts

7.  Limitation of ground-mount PV arrays in front or side yards

8.  Limitation of ground-mounted PV arrays within rear yard set-backs

9.  Requirement for screening ground-mounted PV array racking systems

10. Restriction of reflective glare from PV panels onto streets within a specified distance

11. Restriction of reflective glare from PV panels onto other properties within a specified distance

12. Restriction of overhead wires associated with the PV system

13. Requirement for a fence to prevent unauthorized access to the PV array

14. Requirement for access to the PV system components by municipal and utility personnel

15. Requirement for removal of PV systems that cease to operate

Attorneys can represent the property owner who is proposing to install a PV system on his/her property. An attorney can prepare a presentation that describes the system and outlines how the system is designed to meet the ordinance. This presentation will be delivered in written and graphical form to the municipal body responsible for ascertaining compliance of the proposed system with the ordinance such as the Zoning Hearing Board, Board of Supervisors or City Council. Live testimony is usually required to be given under oath in a public meeting before this municipal body. The property owner's attorney should prepare each witness to testify during this hearing and should ask questions on direct and re-direct examination. Normally, the property owner - a tax-paying resident of the municipality - will testify to the general nature of the project and why the project has been undertaken.

The designers of the PV system may provide factual testimony regarding technical aspects of the system to provide the municipality with a full description of the proposed project. However, the system designers are often prohibited from providing opinions as to the compliance of the system with the ordinance.

The owner's attorney should be prepared to question expert witnesses.  These experts can testify about the compatibility of the system with the provisions of the ordinance. The attorney can question the expert witness on each aspect of the ordinance. If specific provisions of the ordinance cannot be met, the expert witness can provide testimony to explain these reasons. Each reason must be linked to a formal request for a variance from a specific section of the ordinance. All witnesses who testify on the owner's behalf can expect to be cross-examined by the municipal solicitor.

Attorneys can represent parties opposing a proposed PV system.  Sometimes, a neighbor or a citizen's group will oppose the proposed PV system. These parties will usually be invited to ask the witnesses questions. When representing these opposing parties, an attorney can ensure that all pertinent questions are put to the witnesses before the municipal body renders its decision.  Furthermore, council for opposing parties can perform research prior to the public meeting to determine if any anomalies associated with the property such as easements, covenants, liens or deed restrictions, might present a barrier to the installation of the PV system. If necessary, council for an opposing party can call its own expert witness to testify to the concerns of the opposing party and to offer an opposing opinion as to the suitability of the PV system. Whether providing testimony for opponents or proponents, an expert witness should have engineering experience in PV system design.

As PV systems continue to be installed, engineers and attorneys can provide valuable services for property owners and municipalities to ensure that these systems are regulated, designed, installed, and maintained to provide lasting benefits for residents and the greater community. 

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances. 

Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.  

 This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA.

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