ARE LOCAL ZONING AND BUILDING CODE

REQUIREMENTS PREEMPTED BY STATE LAW?

Distributive Electrical Generation Systems

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 ValleyThe 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. JosephBaloghs 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.