Whittier homeowner tests the limits of solar access

Leo Whitebird, pictured at his Whittier home, hopes that his lawsuit will result in more protections for passive solar homes.

Solar_3Leo Whitebird has always loved solar — in the early ’80s, he and his roommates sketched plans to build a backyard greenhouse to generate solar heat. So when he converted an office building on Harriet Avenue into his home and recording studio, he enlarged windows and added skylights to maximize solar gain and later added solar panels to the roof.

Now the storage company next door at 2845 Harriet Ave. S. plans to expand and build a three-story structure that would slightly shade the panels, and Whitebird said it would dramatically shade his windows. The proposal may test the extent of protections for “passive” solar home design. The Planning Commission approved the proposal April 9, and Whitebird is raising money to file an injunction in court to stop construction.

“The house is designed to collect, store and dissipate solar energy,” he said. “This is not a case of me whining about my windows getting shaded.”

A similar issue may arise in a four-story proposal at 429 W. Lake St., which is expected to shade solar panels next door at Schatzlein Saddle Shop. That project is currently on hold, according to developer Dan Oberpriller, though he said that’s not due to solar.

The city’s solar ordinance

While the City of Minneapolis has adopted a solar ordinance, the option to protect solar energy systems is limited to certain cases. City staff consider the impact on solar whenever builders apply for a conditional use permit to build above the maximum height dictated in the zoning code. Solar shadowing is one of several factors city officials take into consideration, along with factors like traffic congestion, alliance with city policies, and the scale and character of the surrounding area.

“Outside of that, we really don’t have much of an ability to prevent new construction or other obstructions from partially or fully shading solar energy systems,” said City Planning Manager Jason Wittenberg. “If a building complies with its setback requirements and complies with its maximum allowed height in a zoning district, there is very little to nothing that we can do if that building would result in shadowing an existing solar energy system.”

A test for solar access

That’s the case on Harriet Avenue. Premier Storage could build up to four stories, but the company is only proposing three stories.

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“It will not shadow the solar 100 percent of the time. There will be some impact at certain times of the day during certain periods of the year, but we’ve found that it was minimal shadowing impact,” Principal City Planner Hilary Dvorak said at the April Planning Commission meeting.

“I think it is really important that we allow for solar, protect those rights. We don’t have a mechanism in this review to do so, and I think that the impacts are low,” said Commissioner Sam Rockwell.

He noted that easements provide a legal tool to protect access to sunlight, which aren’t present in this case.

Premier Storage President Todd Jones said they designed the new building to be sensitive of its neighbor to the north. He said the building rises 31-35 feet instead of the 56 feet allowed by right. A study found no shadowing of the solar array in the summer months. On the winter solstice, the panels would be shaded 5-45 percent at different times of the day, according to the study.

“The impact is very limited and minor,” Jones said at the Planning Commission meeting. “We have acted neighborly [to be] responsible with our design. … We are very proud of the design of this new building, and believe it fits well with what is happening up and down the Greenway.”

Whitebird started a GoFundMe campaign to raise a “solar defense fund” to help cover legal costs. He raised $930 from 24 people in 19 days. He’s hoping to stop construction and see his entire house design fall under the proper definition of a solar energy system in state law, rather than only the panels. He points to state law that says land use plans shall contain “an element for protection and development of access to direct sunlight for solar energy systems.”

“The issue here is there is no precedent,” he said. “… Does this protect passive solar?”

Wittenberg, the city’s planning manager, said staff typically only consider the shading of panels, as they may not be aware of passive solar energy systems.

When Whitebird and his wife bought the Whittier neighborhood house in the mid-90s, they gutted the first floor, enlarged windows and added a second-floor bay window. Three new skylights provide sunlight in winter and open to provide ventilation in summer. Whitebird estimates that the solar gain offsets more than $200 per month in heating costs each winter.

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They added solar panels in the mid-2000s, and Whitebird recalls that the system cost about $14,000 with a portion offset by rebates. Whitebird said he is retired, and as his wife approaches retirement, they are counting on the energy savings.

Whitebird said he’s not trying to argue that every home has a right to full sunlight, but he said his own house should be protected because he designed it expressly to capture solar energy.

State solar laws vary

A provision in state law allows property owners to voluntarily negotiate solar easements. But such easements are not common, said Brian Ross, senior program director at the Great Plains Institute.

“In reality, they would be extraordinarily expensive in most cases,” he said, explaining that an attorney would view the easement as harming a property’s value and development potential.

“They would say, you just have to pay me so much money that you might as well buy my property,” he said.

While Minneapolis is considered a SolSmart “gold” community for advancing solar energy, Ross said it’s moderate when it comes to solar access (when compared to states that have such laws). He said the most aggressive city is Boulder, Colorado, which protects a hypothetical “solar fence” around some solar arrays. California gives solar owners some rights over neighboring properties, like the ability to trim trees that begin to shade panels.

“There are some states that have stronger solar protections than Minnesota does written into state law, but even in those cases usually you’re only protected from unanticipated changes. You’re not protected from [a development allowed by] right,” Ross said.

In Miami, Jody Finver of Solar United Neighbors of Florida said she’s worried about her neighbor’s plan to add a second story that would shade her solar panels. She wants to secure an easement, but she said this is new territory for city officials and the discussions haven’t progressed. She said the adoption rate for solar is low, but growing in her area.

“We’re seeing more homeowners go solar and we’re also seeing more teardowns and rebuilds; this might become an issue. But as of now, it seems like we’re the only people that are affected,” Finver said.

As the Minneapolis City Council works to reduce its carbon footprint, solar is part of the focus. The Council recently signed on to join two community solar gardens. And a group of property owners in The Wedge is exploring a solar co-op.

Wittenberg said people who invest in solar likely understand the potential that it could be partially shaded at some point in the future, whether through trees or construction.

“I assume that is part of the equation that people have to do when they are investing in solar,” he said. “…We of course hope and encourage that people invest in putting solar energy on their rooftops.”