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Sunny and Share: Balancing Airspace Entitlement Rights Between Solar Energy Adopters and Their Neighbors

Posted by on Tuesday, April 30, 2019 in Notes, Volume 72, Volume 72, Number 3.

Joshua B. Landis | 72 Vand. L. Rev. 1075 (2019) |


In an effort to ameliorate the effects of climate change, state and local governments have made increasingly large commitments to support solar energy adoption. For solar investments to be successful, however, solar adopters require unobstructed access to sunlight, which is directly at odds with the interests of neighbors and developers who value vertical development, especially in urban centers. To mitigate these looming conflicts, governments have enacted a variety of laws that assign airspace entitlements to either solar adopters or their neighbors. Unfortunately, these solutions are all poorly tailored for dense cities, which is where future airspace conflict is likely to concentrate. In response, this Note proposes a legal scheme designed to protect urban solar investments without ignoring neighbors’ property interests: the creation of solar development options (“SDOs”). Under this proposal, the solar adopter would be entitled to unilaterally create a solar easement across his neighbor’s airspace. But, in an important break from existing approaches, the owner of the neighboring property would receive a call option to retake her airspace entitlement along with an award of transferable development rights to compensate her for the encumbrance. The benefits of SDOs are numerous: they overcome the significant bargaining impediments plaguing urban stakeholders, properly compensate neighbors for valuable air rights without pricing out solar adopters, and preserve the autonomy of local governments to flexibly balance solar energy adoption and vertical development.

Joshua B. Landis