Sun Casts Its Shadow on the Solar Laws
Do you have a legal right to sunlight?
If you are sunbathing on the beach, it may sound like a frivolous question, but if you have a solar home and the shade from your neighbor’s trees blocks the sun, it is certainly a question worth asking.
It is not a hypothetical question.
It was asked in court by a Stanford professor, Rudolph Sher, and his wife, Bonnie. They sued their campus neighbors P. Herbert and Gloria Leiderman, alleging that the neighbors’ trees interfered with solar access and were a “private nuisance.”
The answer to their question, they found, was no, they did not have an enforceable right to the sun’s rays.
Last May, a California Court of Appeal upheld the trial court’s dismissal of the suit, saying state nuisance law “does not provide a remedy for blockage of sunlight” and declined to join two other state courts that had recently expanded their own laws to recognize a right to sunlight.
Nuisance law, as discussed in last week’s column, protects the right to be free from unreasonable interference with the use and enjoyment of your property. Whether a particular interference is unreasonable and actionable in court as a nuisance depends on a balancing of the gravity of the harm and the utility of the conduct alleged to be a nuisance. (If you don’t understand that, blame it on legalese.)
The Shers argued that traditional legal doctrine, which did not consider sunlight as a landowner’s protected interest, was obsolete, especially given the growing public recognition of sunlight as an important energy source.
However, the appeals court refused to add obstruction of light to the category of nuisances that include loud noise, irritating smoke and foul smells. It said any changes should come from the Legislature.
Criticism of Decision
The Shers’ son and attorney criticized the decision, saying: “California declined to join the Solar Age.”
There is one state law, called the California Solar Shade Control Act, which does provide some limited protection to owners of solar collectors. However, the court ruled that the law did not apply to the Shers. Even though theirs was a “passive solar home” designed and built “to take advantage of the winter sun for heat and light,” it did not have solar collectors, usually used to heat water, and was not governed by the protective law.
The California Supreme Court refused to review the case, so the decision stands as the most recent summary of state law on the subject. So, for now, you won’t be able to claim your neighbor’s trees constitute a legal nuisance, even if they leave you cold.
On the other hand, if you have an “active” solar heating system, you are afforded some protection by the Solar Shade Control Act.
“If a tree is allowed to grow to a point where it shades more than 10% of a neighbor’s collector (between 10 a.m. and 2 p.m.), the owner of the collector has recourse to the local city attorney or district attorney,” the court explained.
If during the first year after you install a solar collector you don’t have that sort of shadow from your neighbor’s trees, but a shadow shows up later as the trees grow, you can file a complaint with the local prosecutor, who should seek to abate the nuisance. But if you place the solar collector so there is such a shadow the first year, you’ve put the collector in the wrong place and can’t compel your neighbor to trim the tree to give you the sunlight you would like, according to Victor Sher, the attorney. He notes that the sun is lowest on the horizon on Dec. 21, so it’s a good day to test the shadow.
