Jul 23, 2008

Law casts shadow over solar panels

New state legislation backs homeowners with trees, even at expense of panels' operation

By Paul Rogers / Bay Area News Group

In Silicon Valley's famous "trees vs. solar panels" battle, the trees have won.

Gov. Arnold Schwarzenegger signed a bill into law Tuesday that guarantees if California property owners plant a tree before a neighbor installs solar panels on their roof, then the neighbor can't require the tree to be cut or trimmed, even if it grows to cast shade on the panels.

State Sen. Joe Simitian, D-Palo Alto, wrote the bill in response to a Sunnyvale case that made national news and threatened to touch off statewide backyard battles as residential solar power installations grow in popularity. The bill, SB 1399, passed unanimously in the Assembly and Senate and was not opposed by the solar industry.

In the case, Richard Treanor and Carolynn Bissett of Sunnyvale were criminally prosecuted under an obscure 1970s law because redwood trees in their backyard cast a shadow over a neighbor's solar panels.

The showdown began in 2001, when the neighbor, Mark Vargas, installed a 10-kilowatt solar system on his roof and on a 10-foot-high trellis in his back yard.

Vargas said he first asked Treanor and Bissett to chop down the eight redwoods the couple had planted from 1997 to 1999 along the fence separating their yards. The trees range are about 20 to 40 feet tall. Later, he asked them to trim the trees to about 15 feet high, even offering to pay the costs.

Treanor and Bissett said no. They said they liked the trees for privacy and noted the trees were there first.

They suggested Vargas move his solar panels, which make up an array three times the size of a typical home system. Vargas said doing so would reduce the amount of electricity they could generate for his five-bedroom home and electric car.

After several years of failed mediation, Vargas filed a complaint with the Santa Clara County district attorney arguing that the trees violated California's "Solar Shade Control Act," a rarely law signed in 1978 by former Gov. Jerry Brown.

San Jose prosecutors agreed and ordered the trees cut under penalty of $1,000-a-day fines.

In December, Santa Clara County Superior Court Judge Kurt Kumli found the couple guilty of violating the Solar Shade Control Act. In a partial victory for each side, he ruled that six of the trees could remain and the two generating the most shade must be "altered or removed in such a way so that 10 percent or less" of the solar panels are shaded.

A Bay Area News Group report on the case attracted the attention of CNN, Fox News, National Public Radio and other outlets as an "only in California, green vs. green" tale.

Treanor and Bissett finally gave up appeals and chopped back two of their redwood trees in March after having spent $37,000 in legal fees.

Simitian strikes a balance between two noble goals - expanding renewable energy and preserving trees.
"I really view this as a triumph of common sense," Simitian said. "I was frustrated by the fact that this was always characterized as a debate between trees vs. solar, and now it is a conversation about trees and solar."

Under the old law, property owners could be required to trim back their trees or face criminal prosecution for public nuisance and fines of up to $1,000 per violation if the branches grew to shade someone's solar panels. It didn't matter if the trees were planted before or after the panels were installed.

Under the new law, trees can grow to shade solar panels without the tree owner facing a penalty - as long as the trees were there first.

If the solar panels were there first, the solar panel owner can seek redress through a civil lawsuit, but not criminal prosecution.

Simitian also wrote the law that requires California to obtain 20 percent of its power from renewable energy by 2010.

Treanor maintained all along that he and Bissett were supporters of solar power but thought state law went too far in punishing tree owners.

"I understand that people who invest tens of thousands of dollars in home solar systems need to be protected," Treanor said. "However, when solar systems are installed causing obvious conflict with existing trees, it defies logic to then subject people to criminal prosecution who legally and innocently planted those trees. This legislation will help the solar power industry in the long run by respecting everyone's interests."

Vargas, the solar panel owner, declined comment. In June, he filed a civil suit against Treanor and Bissett, seeking to have their trees removed.

His attorney, Barri Bonapart of Sausalito, said the new law was misguided, and might encourage more lawsuits by people arguing over whether a tree or solar panels came first.

"It might discourage people from using solar for fear it will become obsolete," she added. "It is problematic, particularly for people who care about the environment."