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This is to certify that the

thesis entitled

SOLAR ACCESS: A PROPOSAL AND LEGAL RAMIFICAIIONS
IN THE STATE OF MICHIGAN
VIENNA TOMNSHIP: AN EXAMPLE

presented by

Carolyn E. Bennett

has been accepted towards fulfillment
of the requirements for

 

Mgstgfs degree in Urban Planning

 

 

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SOLAR ACCESS: A PROPOSAL AND LEGAL RAMIFICATIONS
IN THE STATE OF MICHIGAN

VIENNA TOWNSHIP: AN EXAMPLE

BY

Carolyn E. Bennett

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF URBAN PLANNING

School of Urban Planning and
Landscape Architecture

1985

ABSTRACT

SOLAR ACCESS: A PROPOSAL AND LEGAL RAMIFICATIONS
IN THE STATE OF MICHIGAN VIENNA TOWNSHIP: AN EXAMPLE

BY

Carolyn E. Bennett

The energy needs of America will not be met in the next
twenty years at our present rate of consumption. Land use
patterns and zoning which governs land use patterns affect
energy consumption. Solar utilization offers an alternative
to the present energy consumption attitudes of the American
population.

Local governments can provide the changes needed to
protect solar access through zoning or other types of legal
regulations. This study examines one township, Vienna, in
Michigan. Michigan presently has no state statutes which
deal specifically with solar access. The comprehensive plan
is examined as is the present zoning ordinance. Amendments
are suggested to both which will accomplish the goal of
solar access protection.

Implications for further study are suggested as well as
limitations on various legal mechanisms in practice
throughout the fifty states. The results of this study can
provide a broader understanding of the needs of solar access
legislation in Vienna Township. The study area can also

serve as an example to the entire State of Michigan for

solar access considerations.

ACKNOWLEDGMENTS

This writing is dedicated to my parents, Irene and
Toomey Bennett, whose only wish and concern was that I
further my education in any manner I thought appropriate.

Thank you, Mom and Dad.

Irene Bennett Toomey Bennett

1918-1972 1913-1982

My thanks also must be extended to the School of Urban
Planning and Landscape Architecture, the staff of the Energy
Administration Michigan Department of Commerce, and the
Vienna Township Board of Trustees and Planning Commission.
Help was given to me by two very kind friends, Bob Burns
(editor) and Lori Noblet (typist), and a special feeling of
gratitude must be extended to my sister, Mary Bennett, who

had the confidence to believe in me and what I was doing.

CHAPTER

CHAPTER

CHAPTER

CHAPTER

CHAPTER

II

III

IV

TABLE OF

 

CONTENTS

. . . . . . . INTRODUCTION

. . . . . . LITERATURE REVIEW

9 O O O O O O VIENNA TOWNSHIP

. . . . . . . SOLAR ACCESS

. . . . . . . CONCLUSION

Figure

Figure

Figure

Figure

O—‘

u

A

LIST

OF FIGURES

State Energy Response Survey

. Natural Features Limitations

Updated Residential Land Use Map

Solar Homes

CHAPTER 1

Within the past decade, increased public concern has
focused on the high cost of energy and the dwindling
supplies of available non-renewable energy sources in the
United States., With these concerns in mind, the recent
curtailment of Michigan’s Midland Nuclear Power Plant,
and the prospect of 23 cents per kilowatt-hour charges for
consumers of electricity, the energy crisis is back. But,
did it really ever go away?

From 1974 to 1984, changes have occurred in the
American public’s attitudes and consumption habits.
Gasoline, coal, oil, and wood have all increased in price as
they diminish in availability, as a simple law of supply and
demand has taken hold. A research task of the Energy
Administration of the Michigan Department of Commerce,
commissioned by Governor James Blanchard, is designed to
explore alternative energy sources available to Michigan
energy users. The focus of that research is on conservation
techniques, as they are by far the most cost-effective and
have become more widely used since the late 19705.

However, the push for economic development and the
creation of new jobs in the State of Michigan has taken
precedence over exploration of energy alternatives to deal

with decreasing supplies. Nonetheless, adequate energy

2
sources do, in fact, play an important role in the location
decisions of manufacturing firms.

In addition, with the ever rising costs of energy and
the ever dwindling sources of energy, the individual
Michigan resident has two concerns: (1) the prospects for
employment in a state facing dwindling energy resources and
(2) the high cost of energy to maintain an accustomed
quality of life.

Along with these two considerations, another
consideration to the United States as a whole is the amount
of energy we consume. As Americans we have become the
greatest consumers of the world’s energy wealth: even
though U.S. citizens comprise only 4 percent of the world’s

population, we use 50 percent the world’s total consumable
1

energy supplies.

It is impossible to overemphasize the crucial
importance of energy resources. It might be said that
energy is for the mechanical world what consciousness is for
the human world. If energy fails, everything fails. The
United States’ dependency on energy to survive in the type

of lifestyle we have become accustomed to is an important

concern.
Our quality of life is defined as: the existence we
have become accustomed to. Our quality of life can be

significantly affected by the available energy alternatives:
coal, wood, solar, nuclear. We as Americans have been

significantly affected by the inexpensive use of the world’s

3
resources to fuel our energy needs. Americans also strive
to maintain our quality of life and to regain our
independence from energy resources furnished by the rest of
the world.

The main cause of the complacency--now gradually
diminishing--about the future of fossil fuel energy supplies
was undoubtedly the emergence of nuclear energy, which
people felt had arrived "just in time." This "just in
time" attitude was adopted as a general rule by the American
public as well as its government. In 1974, President Jimmy
Carter began the process of formulating a plan to deal with
the energy needs of our country. Citing statistics from the
National Energy Plan, Barry Commoner notes that only 2
percent of the nation’s energy needs were to be met by solar
power by the year 1985.3 Commoner felt that the National
Energy Plan was flawed in many respects and that the nation
really has no energy policy to speak of. However, nuclear
power was included in the National Energy Plan as a viable
alternative to the energy resources now in use, even though
construction of a nuclear power plant is an extremely
expensive and highly regulated process. John Naisbitt
stated: "While special interests, political partitions, and
regional coalitions carved up the Carter administration’s
ill fated energy plan, the states and cities quietly took
the initiative to analyze local needs, established energy

4
policies, and even secured energy supplies."

4

Among the many factors which have prevented the United
States and Michigan from fully utilizing the solar energy
resources available are certain regulations which deal with
land use, specifically zoning and building codes, the latter
of which until recently paid little or no attention to the
needs of conservation as a means of dealing with the
nation’s energy crisis. Perhaps the most difficult problem
faced today is the changing nature of the energy problem.
These are of course generalities about the American public
and its attitude toward the future. The fact, however,
remains that humans have domain over the earth and are
capable of its natural resource destruction.

Yet, in the human quest for understanding and
technological innovation it has become apparent we must
realize the limits of our existence. Our environment is
crucial to our existence. The use of the sun’s power to
improve our energy status as well as a means of maintaining
our quality of life is not a novel idea born of the recent
energy crunch. Sun dials were used by ancient man to
maintain his quality of life by tracking the sun on its
march across the sky, allowing him to chart his day. The
Pueblo Indians of the American Southwest fashioned shelters
on the slopes of mountains which were shaded during the
hottest part of the day when the sun was at its zenith.
However, with the advent of the industrialized society and
abundant and inexpensive sources of fuel, the necessity of

viewing the natural environment, including the sun, was as

something to be conquered, rather than manipulated to its
greatest advantage.

The technology of the past ten years has greatly
facilitated the expansion of solar energy development. It
is generally acknowledged that solar-powered hot water
heaters are almost becoming commonplace throughout the
United States. Individuals as well as industry are
exploring and utilizing the tools available to build energy-
conscious structures. At the local level, the availability
of new and innovative building techniques, however, is
sometimes blocked by zoning and subdivision regulation as
well as building codes which do not adequately recognize
energy considerations. Two recently published books have
given planners new tools to consider in the creation of land
use regulations, Site Planning for Solar
Access: A Guidebook for Residential Developers and Site
Planners and Protecting Solar Access for Residential
Development: A Guidebook for Planning Officials.5 These
two publications lend credibility to the concept that the
use of the land can affect the amount of energy consumed to
maintain our quality of life. Conservation of energy
resources and building design, including revision of
building codes and land use regulations, would begin the
process of supporting energy conservation measures.
Planners as a profession are most significantly involved in

land use regulations and, therefore, it is a natural step to

develop regulations that are energy conservative.

6

What, then, is the best mechanism to bring these energy
conservation land use regulations into the public arena and
what are the legal ramifications of these new energy
regulations vis-a-vis other land use considerations, land
costs, inner city decay, and environmental concerns? Solar
access rights and the legal ramifications of the enactment
of a zoning ordinance which guarantees solar access on the
residential level compose the focus of this study.

A brief explanation of alternatives to solar power also
lends credibility to this solution to the energy problem.
What of the environmental concern posed by non-use of ~solar
power as a primary energy source? Carl Sagan indicates the
atmosphere of the earth is growing denser due to the fact
that humans are now burning more fossil fuels, and suggests
that "If the present CO' injection into the atmosphere
continued over a few centjries the warming (of the earth’s
atmosphere) would be greater than from all other causes over
the last 100,000 years."6 To counteract this trend, Sagan
emphasizes the importance of alternative energy sources.

The following is a list of Michigan’s energy use-
imports: natural gas, 81.7 percent; petroleum, 19.6
percent; and coal, 100 percent.7 These traditional energy
sources make Michigan heavily dependent on imported fuel.

An explanation of what can be done to combat the
problems which occur from our present energy use and

alternatives available to that use must be explored. The

long term effects of our present course will be felt for

7
generations. What role does Michigan, and specifically
Vienna Township, a growing suburban community in Genesee
County, play in the energy path America has chosen? How can
urban planning and its role in land-use regulation foster
energy conservation in a significant way?

This study attempts to distinguish the real problem of
dwindling fossil fuel supplies. And at what point do local
communities begin to realize their responsibility in energy
conservation? 'Construction of several homes throughout
Vienna Township which utilize solar orientation and
apparatus as a means of heating suddenly bring the focus of
energy conservation and land use regulation into focus.
Currently, the State of Michigan has no legislation that
deals with solar access other than that allowing for tax
credits. Additionally, no Michigan municipality has adopted
any regulations which make solar access a priority.
Numerous studies have been done both at the state and
federal levels and several models have been proposed;
however, no significant action has been taken. A number of
court cases and state laws have evolved throughout the past
decade which lend credibility to the prospect of local
legislation dealing with the issue of solar access. Results
of a survey of the 50 states completed by the author in the
fall of 1984 indicate that of the 30 responding, 24 state
energy offices reported some form of state or local
legislation dealing with solar access. These findings are

supported by an earlier survey conducted by the American

8
Planning Association in 1979.

Local zoning regulations often have prevented the most
efficient land use when considering solar access. Solar
access and the legal ramifications of an ordinance adopted
by a single community within a state with no‘ state laws
addressing the solar access issue are explored in this
study.

The focus of this chapter has been the "window on the

world" exploring the need for legislation dealing with the

solar access issues and the real crisis of energy
availability. Chapter II reviews legal case studies and
legislation available. Chapter III focuses on the case

study area, Vienna Township, and the changes which could be
made in its land use regulations to give legal standing to
an energy goal. Land use types and current use as well as
projected growth and comprehensive planning also are
examined. Chapter IV deals with the changes which could be
made in the zoning ordinance to accommodate the goal of
energy efficient land use. Chapter V summarizes the
findings of the previous chapters and also provides
conclusions and implications for further study.

Although the study area is limited in scale and is not
intended to be an all inclusive solution to the problem of
the energy crisis, it will certainly begin the process.
Transportation systems will not be included in this study
although they are a major contributor to energy use.

Residential units will be the focus of the study and

9
commercial structures will not be included. Many
communities have taken it upon themselves to begin the
process of energy-wise land use. Vienna Township in
Michigan will be given the opportunity to CHANGE ITS ENERGY

DIRECTION .

Footnotes - Chapter I

 

 

 

l
E.F. Schumacher, Economics as If People Mattered:
Small is Beautiful (New York: Harper & Row, 1970), p. 123.
2
Barry Commoner, The Politics of Energy (New York:
Alfred Knopf, 1979), pp. 10-25.
3
Ibid. p. 73.
4

John Naisbitt, Megatrends (New York: Warner, 1982),
p. 127.

5

Duncan Erley and Martin Jaffe, Site Planning for

Solar Access (Chicago: American Planning Association,
1979).

6

Carl Sagan, "The Warming of the World"
Parade Magazine, February 3, 1985, pp. 9-12.

7 .

Statement by Tom Stanton, Director Energy

Clearinghouse, Michigan Department of Commerce, Lansing, MI,
February 1985.

8

American Planning Association, P1anning_Advisory
Service Report #352, (Chicago: 1979).

10

 

CHAPTER II

Introduction

The state of solar law has changed during the past
decade, as land-use controls have changed to accommodate new
technologies. 'One major form of control--the exercise of
zoning-~has greatly influenced ways in which solar
technology has affected and has been affected by location
and siting decisions. During the 19708 much material was
written regarding solar access and the best way to protect
the solar users.

For this thesis, land use regulations and different
theories of law on how best to protect solar users were
examined. land use regulations which take into account
solar access is a complicated issue, not easily solved.
Initially, this chapter will examine zoning powers to
determine the extent (of Zoning as a means of land use
control. Second, literature will be reviewed to arrive at
the specific Needs of Solar Access. Finally, a category of
the literature will be identified which defines types of
Legal Mechanisms to deal with solar access. This review
will also examine recent state and local regulations, as

well as pertinent case law, related to solar access.

11

 

12

Zoning

"The general goals of zoning ordinances, like those of
building codes, are to protect the health, safety, and
general welfare of the community." Zoning traditionally was
developed to "regulate the use of private land." This was
the first effort on the part of the public to regulate, in a
comprehensive fashion, all private land. During the 19205
many states adapted the Standard State Zoning Enabling Act
(fashioned after the model ordinance developed by the U.S.
Department of Commerce). This enabling legislation on the
part of each state was essential, as

Municipalities enjoy no such authority except as it may

be delegated to them by the states either through

express provisions in the state constitutions or

through adoption of legislation that "enables"

municipalities to regulate the use of private land

through zoning.2
The Village of Euclid v. Ambler Realty Co. is the landmark
case in which zoning was found to be a valid exercise of the
police power. Even though the U.S. Supreme Court held that
zoning was valid in principle this did not settle the
question of a particular regulation as applied to a specific
piece of property was valid.

In 1928, seven years after the passage of the Standard
Enabling Act, the U.S. Department of Commerce issued a

Standard City Planning Enabling Act, which was adopted by
the Michigan Legislature.3

Section 3 of the Standard State Zoning Enabling Act of
1928 provided that the zoning ordinance is to be prepared

"in accordance with a comprehensive plan." The connection

13

between planning and zoning is usually an uncertain
relationship. An attempt to clarify the relationship
between planning and zoning was enunciated by the Oregon

Supreme Court:

Although we are aware of the analytical distinction
between zoning and planning, it is clar that under our
statutes the plan adopted by the planning commission
and the zoning ordinances enacted by the county
governing body are closely related: both are intended
to be parts of a single integrated procedure for land
use control. - The plan embodies policy determinations
and guiding principles; the zoning ordinances provide
the detailed means of giving effect to those
principles.4
The planning concern in integrating the comprehensive
plan with zoning considerations is essential for the
discussion of solar access. As mentioned in Chapter 1, a
great deal of emphasis in the energy crisis revolves around
our future energy needs. What can we as Americans look
forward to in the next one hundred years? As professional
planners we are planning for the future. To make the world
a better place, the comprehensive plan, along with the zoning
tools available or some other legal mechanism, can begin the
process of land use regulation that is energy efficient.
United States case law evolves as cases are tried, and as
this body of law emerges, so will the options available to
control land use in an energy efficient manner. As legal

mechanisms are implemented and challenged, so the body of

law dealing with solar access developes.
Needs of Solar Access. The single most important issue

raised by solar energy systems is guaranteed access to light

14

for solar energy collectors. "Situating a building to have
a south orientation and good sun exposure can reduce heating
costs by about 10 percent regardless of what other solar or
conservative techniques are applied."5

Sounds simple: just allow all structures to face south
and heating costs will be reduced. Even with a slight
variation of up to 30 degrees from true south a collector
can receive up to 90 percent of the sun’s daily radiation.
As 85 percent of the sun’s energy is available between 9:00
a.m. and 3:00 p.m. this period of the day represents the
critical hours of solar access. Two distinct problems
appear to emerge: (1) solar access rights, and (2) siting.

Each of these problems is examined below.

Criteria for Evaluation of Solar Access Laws
To minimize conflicts in solar access rights and to

maximize the potential "capture " of solar energy, Gail

Hayes developed the following criteria:

(1) Maximize protection from shadows during the hours of
high insolation to reasonably located active type
collectors for new structures.

(2) Maximize protectiOn of a similar nature to passive
systems in new developments.

(3) Maximize protection to property owners retrofitting
their homes with cost-effective solar devices in
established neighborhoods where the use is in accord
with existing zoning and where due process has been
given.

(4) Deny protection in retrofitting cases where the burden
that would be imposed on a complaining neighbor clearly

outweighs the potential benefit to the owner of a solar
building.

15

(5) Have a built-in flexibility to adapt to the
availability of new technologies.

(6) Minimize the administrative expense to the structure’s
developer, builder, and owner and enforcing
jurisdiction.

(7) Minimize delay.

(8) Arbitrate differences between neighboring landowners to
reduce the likelihood of litigation between neighbors.

(9) Allow private, alternative agreements among adjacent
property owners.

(10) Be politically acceptable.
(11) Provide for all types of property zones.

(12) Include standards for zoning boards telling them which
variances or special uses should be allowed.6

This list of criteria for evaluation was also proposed in a
shortened version in Solar Law by Sandy F. Kraemer.
Michigan can provide an acceptable framework for solar
utilization, both active and passive in nature. Local
governments are thought to be the best director of energy
conservation, but some zoning ordinances actually have
prevented the best possible siting of solar collectors due
to height limitations as well as setback requirements.
Susan E. Mason indicated that an examination of local
ordinances is an important ingredient in the building of a
community energy perspective. Ms. Mason analyzed the City
of Ann Arbor’s zoning ordinance and proposed changes that
would promote more energy efficient land use as well as
transportation schemes. Although transportation schemes were

not included in the literature review in this thesis, they

._

16

do play an important role in energy use, as Americans have a

love affair with the automobile!

Legal Mechanisms

Several legal mechanisms are available to protect solar
access rights. Many have existed for some time, however, a
number of theories emerged during the energy crisis. Among
the oldest in England was the "Ancient Lights Doctrine,"
which grants property owners a limited amount of indirect
sunlight if that light has been flowing through the windows
without interruption for a given number of years.8 Over a
period of years, English law permitted property owners to
acquire a prescriptive easement (a right to use another’s
property which is not inconsistent with the owner’s rights
and and which is acquired by a use, open and notorious,
adverse and continuous for the statutory period,9 to
continued unobstructed access. It was originally adopted in

the United States, and then dropped from case law

consideration, as American courts did not adopt the legal

treaties. Japan also has a legal doctrine in regard to
sunlight. Japan views sunlight as a treasure for its
amenities and access to sunshine is protected by law. In

1976, Japan’s Building Standard Law was revised to provide
solar guidelines to local governments in Japan.10

Solar access may affect land uses. The "due process"
clause of the U.S. Constitution--that which declares that no

person shall be deprived of property without due process of

law--sets the bounds within which solar access regulation is

 

17

to operate. Gail Hayes indicated it is doubtful that a
health purpose by itself will support a solar access law,
but laws and regulations promoting general welfare of the
community are specifically authorized by most zoning
enabling acts.11 Ms. Hayes indicates courts are likely to
‘ consider the degree to which the state and local government
have formally committed their police power authority to the
general welfare goal of encouraging solar energy systems.
To implement that commitment, the purpose and authority
sections of a Comprehensive Plan should be expanded to
specify that solar access protection is a public purpose.
The public purpose section would then lend legal support for
solar access zoning.

Solar access rights established by city ordinance were
challenged in Miami in Fountain Hotel Corporation v. Forty-
Five Twenty Five, Inc.12 In this landmark case, the court
ruled that the Eden Roc Hotel could not prevent the
Fountainbleau from adding awnings where it blocked the sun
from reaching Eden roc’s swimming pool. On the other hand,
prescriptive easements created by the Ancient Lights
Doctrine were not upheld in the United States courts and
confusion continues to exist as to the legal validity or
right to create light easements.

Another type of legal mechanism is the negative
easement. An easement is an interest in land which is in

‘the possession of another party but gives the owner of the

interest a limited use or enjoyment of the land. The land

18

benefitting from the easement is described as the dominant
estate and the land restricted by the easement the servient
estate. Thus, being an interest in land, it involves the
burdens and protections of traditional real property. It
also involves title.13 The dominant estate must be able to
exercise a veto power over the servient estate and keep the
servient estate owner from utilizing the dominant owner’s
property in such a manner as to create a shadow on the
servient owner’s collector. Thus, solar easements are
negative in nature. The modern trend in judicial
interpretation is to make easements in gross a valuable
interest in land and alienable, heritable, and assignable.
An easement connection to land is better than a connection
to a person.

Solar easements can be described as appurtenant or
running with the land or of that character of interest and
should be described in such a way as to make them appendant
to specific dominant and servient properties. Conveyance is
the safest and most common method of creating an easement,
with all the formalities attendant to conveyance of real
property. Easements for light and air can be created by
grant, conveyance, or reservation. They can also be created
for particular buildings.

Two types of legislation relating to solar easements

have been proposed:

(1) That requiring solar easements to be in writing and be
subject to the same conveyancing and recording
requirements as other easements; generally requiring of

 

19

angles, terms and conditions of the grant (including
conditions under which it will be terminated), and any
compensation to be paid. A clause stating that the act
is necessary for the public peace, health, and safety
is generally included. (Colorado’s Solar Easement
Statute is of this type and is discussed later in the

legislation section.)

(2) The granting of some type of easement for sunlight to
the owner of a building which uses solar energy for
heating or cooling.l4

The advantage to this type of legal mechanism is that

it is shaped to fit individual sites and system

requirements. No public expenditures, red tape, or
permission are required. It is also more flexible than
restrictive covenants. The disadvantages include its

voluntary nature and that collector owners could choose not
to involve attorneys in the process. In addition, the cost
of purchasing a solar easement may reduce the cost-
effectiveness of solar energy, as it may cost considerable
amounts in attorney fees.

Solar easements will remain difficult to describe
legally because of the relationship of the sun to the earth.
Shadow variables include land, slope, terrain, solar
orientation latitude, time of day, and height of potential
obstructions. Problems with this type of legal mechanisms
include highly technical information included in the solar
easement. ‘

However, certain requirements for solar easements have
been suggested by Hayes, which would include:

(1) angles at which the solar easement extends over
restricted property;

20

(2) any terms or conditions that specify the length of the
grant or make provisions for its termination;

(3) any provisions for compensating the owner of the
property benefitting from solar easements in the event
of interference with the use of the easements; and

(4) any provisions for compensating the owner of the
property burdened by the solar easement from
maintenance of the easement.15
Another approach used is the use of the Common Law

Doctrine of "private nuisance." Nuisance, as loosely

defined, pertains to an act by another if it involves a

substantial and recurring invasion of one’s interests in
16

land. This would involve shadows as nuisance on

collectors.

A public nuisance

which interferes with the rights of the community at

Experts agree in statin

law would solve the sol

call a

particular use

legislature, through 2

that use. For example,
shadows falling on solar

Casting of a shadow as a

power: sic eter tuo ut

that you do not injure

aspects of this'

type
legislation is required

choices occurs.

is defined in law, as that activity

large.

9 they doubt that existing nuisance

ar access problem, as courts seldom

of property a "nuisance" if the

oning laws, specifically authorizes

municipalities could simply declare
collectors to be a public nuisance.
public nuisance rests in the police

alienum non laedas (so use your own
17

that of another). Two positive

of legal mechanism are that no

and the balancing of interests and

Problems, however, do exist with the nuisance approach.

A public nuisance is a

crime against the state--the state

21

must sue; and in a private nuisance the individual must sue.
Lawsuits are necessary in each case; owners of restrictive
property may truly deserve compensation, but none would be
available in public nuisance. In addition, injunctive
relief may not be available in many jurisdictions. No
security would be available until after installation of the
collector. Another problem exists in that access protection
may not be integrated with the comprehensive plan: it could
inflict restrictions on random properties, thus the
resolution of conflicts could be extremely burdensome on all
parties.

The trespass doctrine is dismissed as a viable legal
control mechanism, as an invasion of the landowner’s
exclusive possession of property is required. This is an
illogical analogy.

Prior appropriation doctrine with an analogy to water
law has not yet been explored. This water law analogy might
only be applicable in western states of the United States as
a legal means of solar access rights. The appropriate
doctrine has not been used in the East. Sunlight, like
water, is an important energy resource that is public in
nature. This "first in time first in right" doctrine seems
a poor way to protect solar access, as among the most
obvious problems are the questions of beneficial use usually
associated with the prior appropriation doctrine and the
fact that case by case decisions would be made. The riparin

doctrine of water law used in the Eastern United States

22

again would not be an appropriate means of protecting solar
access rights.18 The riparin doctrine states first in time,
first in right, which would be akin to solar access rights
as they exist today.

Restrictive covenants can work eitner for solar access
rights or against them. These legal mechanisms involve deed
restrictions. This type of legal mechanism might be the best
used on new tracts of land. It is worth noting that it is
critical that these covenants be written in clear, precise
language, otherwise defendents could successfully argue that
they were ill-informed and deprived of their right to due
process. The purchaser must always have notice of the
obligations. However, this technique is of little help to
established neighborhoods or industrial land.

The transfer of development rights (TDRs) approach
might also be a legal technique useful in the securing of
solar access rights. This legal mechanism allows the
development rights of any lot governed by zoning laws that
specify height, densities and setbacks, etc., to be
transferred or sold to other lots. What is "sold" is not
air rights but the right to build. Restricted property
owners would be able to sell any development rights they
could not use.

The most famous case involving this type of mechanism
is Penn Central v. City of New York, which involved the

transfer of certain development rights from New York’s Penn

Central Station. This same principle might be applied to

23

solar access rights as well. This would seem a very
complicated mechanism for dealing with the solar access
issue, as technical details of solar access are extremely
difficult to describe.

Eminent domain might also be used as a tool for solar
access rights control. This would involve the power of the
sovereign (municipality) to take private property, with just
compensation, for public use or public benefit without an
owner’s consent. This very effective government tool is the
strongest form of land use control. The government actually
acquires, rather than merely regulates private property.
Thus, a potential "taking" issue is avoided. A "taking"
occurs when a government has used police power to regulate
land, but the regulation is so stringent that no reasonable
beneficial use of the land remains. When only a few
properties are suitable for solar retrofit, police power
regulations such as zoning might be successfully challenged
by landowners who would not benefit from the regulation but
who would have to bear the burden of it.20

This technique would be used instead of zoning, as a
municipality could condemn solar access easements,
compensate restricted landowners for them, and then assess
collector owners for the value of them although this
doctrine may be too extreme to apply to solar access.

The final category of literature reviewed was that of

the individual State and local legislation. Figure 1 shows

the results of a survey conducted by the author during

24

1984. Fifty state energy offices were included in the
survey, as well as the District of Columbia.21 Thirty-two
state energy offices responded to the following two
questions: (1) Does your state have any type of solar
access legislation? and (2) Do any of the municipalities
within your state have any legislation dealing with solar
access? Nine state energy offices stated that neither the
state nor any municipality has solar access legislation.
However, twenty-four state energy offices answered in the
affirmative to are to the survey questions.

It is widely known that the state of Michigan has no
legislation at the state level dealing with solar access nor
do ‘any of its municipalities. Recently, a report was
issued on the subdivision regulations in the state of
Michigan which are under revision; however, no mention was
made of energy efficient land use.22 Subdivision
regulations deal exclusively with new developments. In

residential development already in existence subdivision

regulations would enhance solar energy use.

25

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FOOTNOTES - CHAPTER II

 

 

l

Fredric Strom, ed. 1982 Zoning And Planning Law

Handbook (New York: Clark Boardman Co., 1982), p. 391.
2 .

Frank 8. So, Israel Stollman, Frank Seal, and David 8.
Arnold, eds., The Practice of Local Government_P1anning
(Washington, D.C.: International City Management
Association, 1979), p. 416

3

Lecture by Keith Honey, Professor Urban Planning,
Michigan State University, East Lansing, MI, April 5, 1983.

4

Fasano v. Bd. Citys Commr’s, 264 OR 574, 507, P 2d,
23(1973).

 

5

Alan S. Miller, Gail Hayes, Grant P. Thompson, Solar
Access and Land Use: State of the Law (Washington, D.C.:
Environmental Law Institute, 1977), p. 11.

6

Ibid.

7

Susan E. Mason, "Report to the Department of
Commerce/Energy Administration . . .Local Ordinances as
Barriers to Energy Conservation . . ." (Ann Arbor, MI,

August, 1980 p. 38) (Mimeographed).
8

Sandy Kraemer, Solar Law (Colorado Springs: Shepard’s
Inc., 1978), p. 230.

 

 

9
Alan S. Miller, Gail Hayes, Grant P. Thompson, Solar
Access and Land Use: State of the Law (Washington, D.C.:
Environmental Law Institute, 1977), p. 6.
10
Letter from Schun Hagiwara, Architect, July 1983.
ll
Fredric Strom, ed. 1983 Zoning and Planning Law
Handbook (New York: Clark Boardman Co., 1983), p. 31.
12

Foutain Hotel Corporation v. Forty-Five Twenty-Five,
Inc. 114 SO 2d,357,181,F1a. Supp.74 (1959).

 

13
Robert Anderson ed., American Law of Zoning (2nd ed.;
Rochester, N.Y.: The Lawyers Co-operative Publishing Co.,
1968), p. 555.
14
Sandy Kraemer, Solar Law (Colorado Springs:

 

Shepard’s Inc., 1978), p. 37.

28

29

 

15
Ibid., p. 41.
16
Alan S. Miller, Gail Hayes, Grant P. Thompson, Solar
Access and Land Use: State of the Law (Colorado Springs:
Shepard's Inc., 1978), p. 5.
17

Donald Zillman, Ralph E. Becker, Jr., Legal Aspects
of Solar Energy Development, 1976 AZ St. L J 25@ 39 (1976).

 

 

18
Mary D. White, "The Allocation of Sunlight: Solar
Rights and the Prior Appropriation Doctrine", University of
Colorado Law Review, 47 (1976); 423.
19

Penn Central Transportation v. City of New York et,
98 S ct. 2646 (1978).

 

20
Sandy Kraemer, Solar Law (Colorado Springs:
Shepard’s Inc., 1978), p. 120.
21

Carolyn Bennett, State Energy Response Survey (East
Lansing, MI, 1984).

22

Report and Recommendations of the Subdivision Control

Study Committee--Department of Commerce, State of Michigan,
December 5, 1983.

CHAPTER III

Introduction

Vienna Township, Michigan, located twelve miles north
of Flint and thirty-five miles south of Saginaw, was
selected as a representative community within the State of
Michigan for the purposes of this study. The township is
experiencing significant population growth; from 1970 and
1980, Vienna Township doubled in size. A detailed
description of the township follows, along with an
examination of the comprehensive plan.

The author has been a life-long resident of the
community and served as Downtown Authority Director for the
City of Clio, which lies at the center of the township. The
City of Clio is an independent entity within Vienna

Township, however, and will not be included in the study.

Natural Features

Most of Vienna Township lies within the Flint River
watershed and groundwater is the principal source of water
for domestic use. The township is relatively flat and lacks
extreme topographic relief, as its land slopes gently to the
northwest. Due to the gentle slope of the land within most
of the township, it places little restriction on

development. However, soil and slope characteristics in

30

31
nearly one-third of the township do severely limit

development potential. Figure 2 displays these natural

feature limitations to development.

Climate
Vienna Township lies within an area of humid
continental climate. The area is subject to a wide

temperature variation; the mean temperature is 46.8 degrees
Fahrenheit and Genesee County receives approximately 37.5
inches of snowfall per year. The township has approximately
6373 heating degree days per 10 year period. (A heating
degree day is defined as a uniform 24-hour period where the
average temperature for the day is below 65 degrees
Fahrenheit.)1 A heating degree day is relevant for

consideration because normally buildings do not require

heating on these days.

Demographics

Vienna Township has a population of 12,914 and is
located in northern Genesee County and was established in
1837. Vienna Township is primarily a "bedroom community";
howver, the community was first a trading center along the
Dixie Highway. Lumbering was the first industry in Vienna
Township. By the end of the lumbering era, the township's
growth had temporarily endgd, and agriculture became the

major community industry. The median family income is

$20,468 and the median home value is $41,800.

4111);; _...-
I .7.

-" 732(k): ROAD ,
‘ ' "

 

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7 54f— . I;
n.

 

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t
‘51

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_.

- EEEL—L'éagk!’ 4.12 $.31? "
=—— jge'_——_——==- - (grams? -f‘

 

 

LEGEND: ‘ Til-f

N0 Significant Limitations :0 E Valuable Natural Features Sug-

Urban Development gent Lands Should be Exempted k
From the Urbanization Process

Natural Features Present Mod- E to ngsgrve These Features

erate Limitations to Urban

Development soils Information Not Available

Natural Features Present Sev-

ere Limitations to Urban Dev- D O

elopment GCMPC 6/73 0 N ‘oool
—_
SOURCE: Soils Information Based Upon 1966 Genesee County Soil SCALE
Survey and Soils Limitations Rating System, Soil Conservation Service; USDA

 

33

A high rate of growth has occurred in Vienna Township,
beginning in the 19208 and extending into the present. The
population of Vienna Township is expected to grow to 17,100
by 1990.4 As Vienna Township is primarily devoid of
industry, residential development will be the focus of this

analysis. However, commercial development is beginning to

play an important role, especially at the intersection of I-

75 and M-57.

Land Use

Vienna Township covers an area of approximately 22,116
acres, excluding the City of Clio. The City of Clio is
approximately one square mile at the center of the township.
During 1971, members of the Vienna Township Planning

Commission updated a document entitled 1968 Land Use Data by

 

means of a "windshield survey." One- and two-family
residential units were found to occupy approximately 10.47
percent of the total area. Most of the section line roads
throughout the community are partially developed. The
majority of dwellings along these roads are of a non-farm
nature. These dwellings are developed on lots relatively
small for rural areas and most of them rely on septic tanks
and private wells.5

About one-third of the dwellings in the community have
been built on unplatted lots of irregular size and depth.

Recognizing this, the Vienna Township planning documents

stress the need to cluster development, due partially to the

34
economics of providing sewer services to the expected growth
areas in the township. The largest amount of platted land
is located west of Clio and was platted coincident with
construction of I-75.

Multiple family residential, mobile home parks, and all
other dwellings were found to occupy 14 acres, or 0.06
percent of the total land area. Although a trend emerged in
the 19703 toward more mobile home parks, it seems to have
leveled off. In 1970 approximately 265 acres were zoned to
accommodate mobile home development. Figure 3 is an updated
map of the land use in Vienna township.

The Michigan Department of Health surveyed housing
conditions, and rated approximately 83.9 percent of the
housing as "good"; 14.4 percent were 'rated "fair"; 2.2
percent were rated "poor."6

Typically, problems exist in this growing community.
Compatibility of land uses is a concern; for example, single
family use is directly exposed to the intense activity of
commercial or industrial use. Urban sprawl is cited as the
most important potential problem,7 urban land uses are
scattered, and rural sections contain residential dwellings
on small lots, while the urbanized areas consist of
scattered building development. Transportation is a major

factor in the growth potential of the community as I-75

bisects the township. In some areas, the lands that have
been preempted for residential uses may be better suited for

more intense uses. Water is supplied via a twelve inch

35
transmission line from the City of Flint. The township is
also served by sanitary and storm sewers.

Vienna Township is serviced by the Clio Area School
System, including a high school, middle school, and three
elementary schools. Recreational facilities are limited in
the township, although the City of Clio has a municipal pool

and a very fine park and bicycle path system along the Pine

Run Creek.

Government

Vienna Township is a charter township and is governed
by a five member board of trustees. The Planning Commission
consists of nine members with the Township Supervisor

serving on the commission. It was created under Public Act

168,1959.

Energy Needs

Vienna Township can best be described as a suburban
community with a high potential for growth. Although no
comprehensive energy studies have been done within Genesee
County or in Vienna Township, consumer information for
energy uses is available through the Michigan State
University Cooperative Extension Service Energy Agent Andrew
Nelson offers an Energy specialist Course at a minimal fee

to residents of the county.

Comprehensive Plan
During August 1973, the Genesee County Metropolitan

Planning Commission devised a comprehensive plan for Vienna

36

Figure 3

Residential

 

Source: Vienna Township Comprehensive Plan
August 1973

Residential Area Noel-l.

37

Township. The general overall development goal stated in
Vienna Township Comprehensive Development Plan was: "To

provide a high quality of life for all present and future

citizens of Vienna Township." Specifically, the first
overall housing goal is, "To provide sufficient housing to
satisfy the needs of the future population of the
community."9 Of course, each of these two goals is very

general and can be interpreted in several different ways,
but the housing goal should be met by the township with the
following objectives in mind:

(1) areas should be provided for the expansion of single
family, two family, and multiple family housing; and

(2) residential lands should be protected from encroachment
by other uses.

The second overall housing goal is, "to reduce the
indicence of residential blight and to provide a safe home
environment for all citizens." To meet this goal, the
following objectives should be kept in mind:

(1) all codes and ordinances should be kept current and
enforced to ensure that blighted structures are removed

or brought up to standards. A more comprehensive
occupancy and maintenance code should be adopted; and

(2) the Planning Commission should currently review areas
for code enforcement and endeavor to support and
encourage organized campaigns directed toward the

physical improvement of the residential neighborhoods.
The third overall housing development goal is, "To
10
provide a healthful home environment for all citizens."

The two objectives to meet this goal are:

(l) pollution -and noise abatement provisions should be
included in the Vienna Township Zoning Ordinance; and

 

38
(2) extension of public sanitary sewers should be
encouraged in all areas of concentrated residential
development, and no such development should be
permitted where sewer and water do not exist or cannot
be provided.
The fourth overall housing goal is, "To create a
functional pattern of neighborhood units with a compatible
11
relationship to other activities." The three objectives
designed to meet this goal are:

(l) a community development plan should provide for
neighborhood units which have relatively easy access to
essential Services and facilities;

(2) zoning and subdivision ordinances and policies should
preclude conflicts between residences and other land
uses; and

(3) residential land use should be coordinated with a
transportation plan that routes through-traffic around
residential neighborhoods.

Goals pertaining to commercial facilities,
transportation, and industrial facilities are not the focus
of interest in this study and thus will not be examined.
However, since the focus of the study is energy efficient
land use, and more specifically residential solar access,
environmental goals will be examined. The first overall
environmental goal is, "To preserve irreplaceable natural
features with amenities that characterize them as

12
environmental assets to the community." The two

objectives to meet this goal are:

(1) open space provisions should be included in the
community development plan and the Vienna Township
Subdivision Regulations should provide for the
dedication of open space or parkland; and

(2) floodplains within Vienna Township should be protected
from being obstructed by development.

39
The second environmental goal is: "To encourage
development procedures which have a positive rather than

negative effect on the living environment of Vienna

13
Township." Three objectives were developed to meet this
goal:
(1) each new development should be considered in regard to

its contribution or negative impact upon the townscape
of Vienna Township as well as its impact upon adjacent
properties and locational desirability;

(2) community organizations should be encouraged to carry
out environmental improvement programs; and

(3) Vienna Township should enact cluster development
procedures and provisions for planned unit development
in its zoning ordinance, and should encourage
developers to pursue these avenues.

The objectives examined in Vienna Township’s
Comprehensive Plan are defined as "conditions not yet
realized, which the community tries to attain." Goals are
not necessarily attainable, however, objectives are "targets
for achievement." With these two definitions in mind, it is
important to explore the recommendations of the land use plan
in relationship to residential development. More
importantly, how can these overall general goals and
objectives be arranged within the physical constraints of
the township to provide a rational plan for development? A
crucial question in the land use plan is: "What lands can
best accommodate residential growth and the facilities
needed to support such growth?"14

With the natural features constraints, development

should be concentrated in the central and southern portions

of the community. Although suitable land for residential

40

development is not abundant, the "neighborhood" concept is
suggested as a type of development procedure. This concept
revolves around the elementary school, with major streets as
boundaries, separation of residential and nonresidential
uses, some neighborhood convenience shopping facilities, and
interior streets designed to encourage a slow, low volume

traffic movement.

Projections estimate 3,770 households in 1980 and 5,344
households in 1990.15 It is likely that densities will not
exceed the eight dwelling units per acre. From 1960-1970,
multiple family dwellings increased by 43 percent. During
that same time period, single family homes decreased from 85
percent tO‘ 81 percent of the total number of housing
units.16 This type of trend is expected to continue into
the 19905, with multiple family dwellings occupying a
greater percentage of the dwelling units.

Spatial relationships ideally include low intensity
urban residential uses which should be located where they
can be buffered from activity generated by commercial or
industrial uses. Agriculture and rural estate development
will most probably become urbanized during the planning
period (1970 to 1990). The rural character of the land
should be preserved, therefore, it is advisable to restrict
agricultural and rural estate areas to very low residential
densities.

With these considerations developed in the Vienna

Township comprehensive plan, the next area of interest is

J

41

the regulation involved in accomplishing the goals and
objectives. Zoning is a very important and powerful tool in
land use regulation. The Michigan Township Rural Zoning Act
(Public Act 184, 1943, p. 264) enables for townships to
zone. However, not until the mid-19505 did Vienna Township
regulate its land through zoning. Vienna Township’s
Planning Commission, in cooperation with the Genesee County
Metropolitan Planning Commission, revised the Vienna

Township Zoning Ordinance in 1973.

Summary

Although the information examined throughout Chapter
III is approximately twelve years old, it is the best
available information for the township. Particularly
lacking is relevant information on energy needs of Genesee
County. The comprehensive planning document for Vienna
Township was very accurate in its prediction of population
for 1980. Chapter IV reviews the zoning ordinance for
Vienna Township, with consideration of energy efficient land
use technique discussed in Chapter I as well. Specific
recommendations also are proposed. Following in Figure 4
are three homes in Vienna Township which utilize solar
access. Solar access goals or policies are missing from the
comprehensive plan in Vienna Township. The foundation of
zoning rests within the comprehensive plan and therefore

must be added.

42

Figure 4

Solar Homes

 

FOOTNOTES - CHAPTER III

\

1

Richard H. Montgomery, The Solar Decision Book of
Homes: A Guide to Designing and Remodelling for Solar
Heating, (New York: Wiley, 1982), p. 10.

2

Genesee County Metropolitan Planning Commission,

Vienna Township Planning Analysis, 1972, p. II-3.
3

Nate Jonker, "Report to Michigan State University
Extern Program . . . on the Clio Community Growth Through
the Development of Participatory Decision- Making .
(Higgins Lake, MI. Staff to State Senator Gary Corbin of
Clio, November 10, 1984). (Mimeographed. )

4

Genesee County Metropolitan Planning Commission vienna

Township Planning Analysis, 1972, p. I-l.

 

5
Ibid., p. III-10.
6
Ibid., p. V-3.
7
Ibid.
8
Genesee County Metropolitan Planning Commission,
Vienna Township Comprehensive Development Plan, 1973, p.
II-3.
9
Ibid., p. II-4.
10
Ibid., p. II-5.
11
Ibid., p. II-13.
12
Ibid., p. III-2.
13
Ibid., p. III-5. ,
14
Ibid.
15
Ibid.
16
Ibid., p. III-7.
17
Private collection of Carolyn Bennett, Vienna

Township, Winter 1985.

43

CHAPTER IV

Introduction

The Vienna Township Zoning Ordinance does not prevent
solar access rights, but neither does it protect them (refer
to Figure 4 on the previous page). The homes in Vienna
Township are using solar systems as an integral part of the
heating mechanism. Building permits were issued for each of
the homes.

Active_solar energy systems are those in which the
collector and thermal storage components are separated and

require a pump or a fan to circulate the solar heated fluid

 

between them. The location of this type of collector is
optional; rooftops are commonly used. A
passive solar energy system is integrated, requiring no
transfer device for solar heated fluids. It is usually

built as an essential component of the building rather than
as an addition. Each of these types of solar systems must
have access to the sun’s rays to function properly.1 Vienna
Township’s Zoning Ordinance will be reviewed in light of the
information reviewed in Chapter II and the Comprehensive
Plan for Vienna Township will also be examined and

amendments recommended to include solar access

considerations.

44

45

Having examined the various legal options including
zoning as a means of protecting solar access, a question
arises as to what is most applicable to a small township,
such as Vienna Township, with a high growth potential and a
zoning ordinance which neither protects nor encourages solar
access. In addition, its comprehensive place is also silent
on this issue. In the State of Michigan, no specific
statute addresses the solar easement issue. No local
government has integrated solar access into the residential

or commercial zoning code.

Soldiers Grove, WI

A similar small community in Wisconsin is now
encouraging a solar access and has integrated solar access
regulations into its zoning ordinance. Soldiers Grove,
Wisconsin, population 677, has added Section 2.10 to an
otherwise ordinary zoning ordinance. This small town has

gained national recognition and calls itself "America’s
2
First Solar Village." The relevant section of the zoning

ordinance is as follows:

Ordinance 80-2, Section 2.10 Solar Heating

Where it is feasible to collect sufficient sun
new-non-residential buildings requiring heating shall
be at least 50 percent solar heated. Feasibility shall
be defined in the following manner. Between the hours
of 9:00 a.m. and 3:00 p.m. on the winter solstice (the
shortest day of the year) there shall be a clear solar
access at the building site, not obstructed by any
building, equipment, trees, or shrubs which would block
the south face of the building, at wall, and/or roof
line.

Graphic representation of solar access shall be
required in Application for Zoning Permit.

The use of passive solar heating system is

 

46

encouraged, active collection devices must be
integrated with the surface to which they are affixed,
parallel with the wall or roof to which are attached
and not projecting from that surface a distance greater
than that which may be required for weatherproofing.3

The Village of Soldiers Grove, Wisconsin, does not have

a provision in its zoning ordinance for residential solar

access. "America’s First Solar Village" is certainly
lacking in its land use regulation on a local level. The
4

State of Wisconsin provides in Chapter 354, Laws of 1981, a
legal mechanism for local municipalities to issue solar
access permits and provide solar access protection. These
two legal options have permitted local municipalities to
deal with the solar access issue and its relationship to
energy efficient land use. Wisconsin is a state with
similar climate to Michigan. Soldiers Grove is a much
smaller community than Vienna Township but a parallel can be
drawn. Both communities are not technologically advanced,
nor do they have a specific need for solar access above and
beyond the considerations each local municipality has in
relationship to energy and land use previously mentioned.
It can be done in Vienna Township and was done in Soldiers
Grove, but will it be? (This is the relevant question. Many
communities throughout the United States have enacted
differing types of solar access legislation. Large cities
such as Los Angeles, California, and Portland, Oregon, have
or will enact solar access protection provisions.5

Concern for solar access protection in light of

Michigan’s dependence on other states for fuel makes

47
Michigan an ideal location. Why hasn’t Michigan done more?

Chapter V will attempt to deal with this question.

Vienna Township, MI

The question of how best to accomplish solar access as
a legal protection in an energy efficient land use scheme is
the relevant point of this chapter. The question of solar
access is complicated and in Chapter II many legal
mechanisms were examined. None of these legal mechanisms
fit every case. In the survey conducted by the author of
state energy offices, states vary in approaches, in
relevance, and in comprehensive studies of energy needs.

Vienna Township may not need another layer of legality
to foster energy efficient land use. It is the purpose of
this chapter to apply findings to the case study area. The
township is not highly sophisticated in its government, nor
is it sophisticated in its planning documents. The township
is entirely dependent on the Genesee County Metropolitan
Planning Commission for its planning expertise. The zoning
ordinance was to be revised by Mr. Ron Nino, but the
township supervisor rejected Mr. Nino’s assertions which
included various energy efficient land use techniques.6

Therefore, on the premise of "no new regulations,"
Vienna Township’s Zoning Ordinance will be examined and
revised to remove legal barriers to energy efficient land
use, specifically solar access. Additionally, the Vienna

Township Comprehensive Plan will also be analyzed and

amended to include goal of energy efficient land use through

48

a solar access objective. Without adding a new layer of
regulation where it is not specifically needed another goal
will be accomplished: political considerations will be
minimized. Added regulations usually mean added costs; not
so here as new costs would be minimized by the lack of need
for new expertise in staffing. The revisions will be simple
as they take away restrictions or interchange them, not

adding any new regulations.

In 1978, Public Act 184, 1943, the Township Rural

7
Zoning Act, Section 125.271 was amended by Act 637 of 1978.

This amendment provides that a township may regulate and
restrict the use of land and structures within its limits to
meet energy objectives. Section 1 of the Township Rural

Zoning Act now states:

125.271 Zoning Ordinance for regulation of land
development and establishment of districts; division of
township into districts; purposes; uniform provisions,
jurisdiction relative to wells.

Sec. 1 The township board of an organized
township in this state may provide by zoning ordinance
for the regulation of land development and the
establishment of districts in the portions of the
township outside the limits of cities and villages
which regulate the use of land and structures; to meet
the needs of the.state’s citizens for food, fiber,
energy, and other natural resources, places of
residence, recreation, industry, trade, service, and
other uses of land; to insure that use of the land
shall be situated in appropriate locations and
relationships, to limit the inappropriate overcrowding
of land and congestion of populations, transportation
systems, and other public facilities; to facilitate
adequate and efficient provisions for transportation
systems, sewage disposal, water, energy: education,
recreation, and other public health, safety and
welfare. For these purposes, the township board of an
organized township may divide the township into
districts of such number, shape, and area as it
considers best suited to carry out this act.8 (emphasis

49

added)

For the first time the above amendment of the state
zoning enabling statute provided that zoning could be used
to meet the needs of the state residents for energy.
However, in the zoning ordinances created throughout the
state "energy" is rarely, if ever, used. This change is
actually made quite easily. Each statement of intent or
purpose can be amended to reference the need to consider
energy use and energy conservation in the planning process.
The reality that energy plays an indirect role in all
planning decisions that developers make because energy
figures in cost should not allow us to hesitate to make a
visible local government commitment, in writing, to consider

energy when decisions about land use are made.

Zoning40rdinance
Following is the Vienna Township Zoning Ordinance
Section 1.00 Purpose:

The purpose of this ordinance is to promote the public
health, safety, morals, and general welfare; to
encourage the use of lands in accordance with their
character and adaptability; and to limit the proper use
of land; to avoid overcrowding of population; to
provide adequate light and air, to lessen congestion on
the public roads and streets; to reduce hazards to life
and property; to facilitate adequate provisions for a
system of transportation, sewage disposal, safe and
adequate water supply, education, recreation, and other
public requirements; and to conserve the expenditure of
funds for public improvements and services to conform
with the most advantageous uses of land, resources, and
properties, and with reasonable considerations among
other things, to the character of each district, its
peculiar suitability for particular uses, the
conservation of property values and natural resources,
and the general and appropriate trend and character of
land, building, and population development, as studied

50

and recommended within the general plan by the Vienna

Township Planning Commission, and endorsed, and
regulations adopted, therefore, by the Vienna Township
Board.9

The Purpose section should also be amended to include the
following: "to encourage the use of solar energy, to remove
barriers to the use of solar energY: and to provide a means
of homeowner protection of access to sunlight for existing
or proposed solar collectors."
Section 2.08 under Article II Definitions Building,
Height of:' The vertical distance from the grade at the
center of the front of the building to the highest
point of the roof surface in a flat roof, to the deck

line for mansard roofs, and to the mean height level

between eaves and ridge for gable, hip and gambel
roofs.

The addition to this section which would guarantee solar
access would be as follows: "in considering a modification
of the height limits of this code, the zoning board of
appeals shall not allow a modification if such modification
will significantly impair solar access of buildings or solar
collectors which exist on adjoining property." This
addition would curtail problems of solar collectors being
placed on roofs.

This addition should be made to all residential zoning
districts including Residential Agricultural (RA) District,
Section 408, Residential Urban (RU-l), Residential Surburban
Agriculture District (RSA), Section 5.08, Urban District
(RU-2), Section 6.08, Residential Urban Multiple Family (RU-

3), Section 7.09, Mobile Home Park District, Section 8.03.

51
Article II Definitions, Section 2.01, is as follows;

Accessory Structure: A detached structure on the same lot
with, and of a nature customarily and
subordinate to, that principal
structure.ll

This section should be amended to include the
following: "Accessory buildings or structures shall not be
erected in any required front open space. Solar collectors

are not considered accessory buildings or structures for
purposes of this section and the surface area of detached
solar collectors is not to be used in computing lot
coverage."

This addition will exempt solar collectors from
provisions which govern what portions of a lot may be
covered by buildings or structures. It may be desirable to
place a collector on the ground and it is important that the
zoning ordinance not use the surface area of the collector
in computing lot coverage.

Another way to insure that local zoning ordinances do
not prohibit the use of solar energy components and systems
is to amend the local ordinance to explicitly permit the use
of solar energy. This may be viewed by the local officials
as additional regulation and must be balanced against the
other suggestions made throughout this study. A very simple
addition, however, might be as follows: add solar energy
systems and compgnents as a permitted use on a district by

district basis. This addition would be made to Article

XIV Administration, Section 4.01 Conditional Use Permit

52

Review Procedures under subsection A, Intent:

These conditional use permit review procedures are
instituted to provide an opportunity to use a lot for
an activity which under usual circumstances, would be
detrimental to other permitted land uses and cannot be
permitted within the same district, but which use can
be permitted under circumstances unique and providing
protection to adjacent land uses. These procedures are
adopted to provide guidelines for the Township Planning

Commission and the Township board, to follow in

arriving at any decision over which such Commission and

board has jurisdiction, and to provide for the public
health, safety, morals, and general welfare, as well as
to provide for the interest of the property owner.l3

Street orientation and building placement are important
considerations in solar access. In residential
subdivisions, streets running east to west provide greatest
protection of solar access because the lots will then be
longest along a north-south axis. This consideration should
be used when site plan approval is sought.

Section 14.02 Site Plan Review Procedures: this
section amended to include a requirement that at least 80
percent of the street-length proposed for construction as
part of area plan shall be laid out in an east-west
direction. If developer can demonstrate to the planning
commission that this requirement can be met at a much higher
than otherwise cost, bonuses in lot size, parking, street
width, zero lot line, or other design features can be
allowed to compensate the developer.

Section 3.12 Yard and Lot Requirements under Article
III General Provisions of the Vienna Township Ordinances

states in subsection 2 of the following:

Yards: All front, side, and rear yards shall be the
minimum perpendicular distance measured from the

53
principle structure excluding all projections not
exceeding three (3) feet in length from the structure
wall, nor measuring three (3) feet in width to the
representative front, side, or rear lot provided,
however, the point of measurement of such front, side,
or lot line shall be at a point within the subject lot

and on a line which will measure not less than (20)

feet in length and is parallel to the side of the

structure from which the distance is measured, or a

parallel line to the lot line and measured to another

parallel line tangent to the nearest point of the
structure.14

Setbacks for main structures should be. revised to
include the following. "Front: front yard setbacks shall be
exactly (20) feet for buildings sited on the north side of
the street or right-of—way. For buildings on the south side
of the street or right-of—way front yard setback shall be a
minimum of twenty (20) feet. Rear: rear front yard
setbacks shall be exactly (20) feet for buildings sited on
the south side of the street or right-of-way. For buildings
on the north side of the street or right-of—way rear yard

15
setback shall be a minimum of twenty (20) feet."

Solar airspace easements or agreements between
neighbors to ensure solar access may be desirable. These
negative easements have been previously discussed in Chapter
II and will not be further explained here. This type of
solar access protection may be useful in communities with a
planning staff capable of administration. Vienna Township
does not have a planning staff of its own.

Vegetation can be a problem to solar access and the
Vienna Township Zoning Ordinance has no specific regulations

dealing with vegetation. An entirely new restriction would

be needed to accommodate this concern. At the present time

 

 

54

this issue should be dealt with on an individual basis
through private agreements. Vegetation which can be
controlled on a seasonal basis should be the perogative of
the adjacent property owners. Easements, agreed to by
adjacent property owners, to control vegetation can ensure

solar access protection on a private 'level, without

government intervention.

Comprehensive Plan

To lend legal credibility and to further other energy
conservations within the township an amendment to the Vienna
Township Comprehensive Plan should be made. A recommended
example might be as follows: "V Goa1--To encourage a more
energy conscious way of life for all residents." The quality
of life in Vienna Township can be improved by allowing
citizens to explore alternatives to the high cost of heating
their homes in a conventional manner. Energy conservation
can improve the public welfare through resource conservation
as well as environmental conservation.

Objectives to such a goal might include the following:

"A. The Vienna Township Planning Commission should
enact appropriate zoning and subdivision ordinances to
ensure solar access.

This would provide one method of energy conservation
through solar access."

"B. Transportation routes should be examined to ensure

proper energy efficiency in land use.

55
This may mean drastic changes in the transportation
facilities of the future."
"C. Education to citizens should be expanded.
This would begin the process of citizen involvement in

exploration of energy alternatives."

Cbnclusion

The Vienna Township Zoning Ordinance does contain a
provision for Planned Unit Developments (PUDs) under Article
VI Residential Urban District, Section 6.09.16 Although the
words "energy efficient land use" are not used, they are
certainly implied through clustering of dwellings and open
space provisions. This provision was added to the township
zoning ordinance in the past five years. Don Lee,
chairperson of the Vienna Township Planning Commission, was
instrumental in making this addition. In numerous
conversations with the author Don Lee indicated the
reluctance on the part of other Vienna Township Planning
Commission members to explore alternatives to the present

17
pattern of land use.

 

56

FOOTNOTES - CHAPTER IV

 

 

1
Duncan Early and Martin Jaffe, Site Planning for
Solar Access (Chicago: American Planning Association,
1979), p. 127.
2

Statement by Ardelle Knutson, Clerk-Treasure, Village

of Soldiers Grove, WI, telephone interview, February 12,
1985.

3 .

Village of Soldiers Grove, WI, Ordinance 80-2, Section
2.10.

4

Wisconsin, Solar Access Act, Chapter 354 (1980).

5

Peggy Woo-Fairbrook, "Staff Report to California
Energy Commission . . . Status of Solar Energy Proposals in
cities and Counties Responding to the OAT Survey of June
1980." (Sacramento, CA: California Energy Commission,
December 1980). (Mimeographed).

Dr. Daniel Levi, "Report to City of Portland, OR

Energy Office . . . On the Portland Solar Attitude
Survey . . . " (Portland, OR: Conservation Management
Services, Inc. Portland, OR, September, 1984).

6

Statement by Max Donovan, Vienna Township Supervisor,
personal interview, Clio, MI. April 16, 1984.

 

7
Michigan, Township Rural Zoning Act, Sec. 125.271
(1978).
8
Ibid.
9 .
Vienna Township, MI, Zoning Ordinance, Section 1.00.
10
Ibid., Section 2.08.
11
Ibid., Section 2.01.
12
Susan E. Mason, "Report to the Department of
Commerce/Energy Administration . . . Local Ordinances as
Barriers to Energy Conservation . . ." (Ann Arbor, MI,
August, 1980, p. 57) (Mimeographed).
13
Vienna Township, MI, Zoning Ordinance, Section 4.01.
14

Ibid., Section 3.12.

57

15
Susan E. Mason, "Report to the Department of
Commerce/Energy Administration . . . Local Ordinances as
Barriers to Energy Conservation . . ." (Ann Arbor, August
1980, p. 51) (Mimeographed).
16
Vienna Township, MI, Zoning Ordinance, Section 6.09.
17

Statement by Max Donovan, Vienna Township Supervisor,
personal interview, Clio, MI, 1984.

CHAPTER.V

Conclusions

The objectives of the study were to provide
alternatives in an appropriate framework to reach the. goal
of solar access protection for residential development.
Residential development was the focus of the study as
residential homeowners are offered tax credits at the state
and federal level and these tax credits end in 1985. The
development of solar access legislation which can be
incorporated into an existing zoning ordinance is a very
interesting prospect. Zoning has only recently begun to be
used as a mechanism to protect solar access. Private
agreements between neighbors can protect solar access but,
they also are not the best way to include solar
considerations in its development. Solar access is a

complicated issue with many unforeseen implications.

Boulder, Colorado

For instance, the City of Boulder, Colorado has enacted
a solar access ordinance, Ordinance 4676 which includes the
following:

1) a site plan must be drawn showing existing and

proposed improvements and

2) the determination of the height of the shadow
casting portion of the roof and

58

59
3) the appropriate shadow cast by the proposed
structure and
4) if the shadow cast is entirely within the property
lines, the proposed building or addition is in

compliance.l

The type of ordinance may lead to urban sprawl as
residences are placed out of the shadow patterns that
develop. The type of residential pattern that may develop
under this type of ordinance might lead to a transportation
system which actually adds to energy consumption. As
greater distances are traveled in automobiles, energy is
consumed.

Although Boulder, Colorado has many considerations
.which Vienna Township does not, such as high rise
development, several conclusions might be drawn. Solar
access for residential development can be incorporated quite
simply into an existing zoning ordinance. Subdivision
regulations are mandated by the State of Michigan. However,
due to the lack of interest on the part of the Michigan
Department of Commerce, Subdivision Regulations Study
Committee no recommendations have been made to include
energy considerations in these regulations.

More emphasis should be placed on this issue by the
Energy Administration of the Michigan Department of
Commerce. However, in light of the facts presented local
municipalities are faced with the challenge of energy
efficient land use. The case law developing is changing the

way regulations dealing with solar access are devised.

60
Second, an amendment to the Vienna Township Comprehensive
Plan is not a total solution to the planning problems
associated with solar access, as goals and objectives are
not always attainable in the "real world" setting. Third,
the question of vegetation causing blockage of the sun’s
rays to solar collectors is a seasonal problem. Fourth,
questions of law examined in this study and solar access
protection mechanisms may be forced to change as new

technologies develop.

Implications

A copy of this study will be sent to the Chairperson of
the Vienna Township Planning Commission as well as the
Vienna Township Board of Supervisors. The amount of
interest generated in solar access in Vienna Township
recently has been by residents who are installing solar
collectors and panels on their.homes. This study may lend
knowledge to the present planning commission as they revise

the present zoning ordinance.

Limitations

The limitations foreseen prior to the study were: lack
of general energy studies for Genesee County and Vienna
Township, no new information specifically available on how
the county uses energy. This information would have been
useful in determining the appropriate legal mechanism to
deal with the solar access problem. In a recent issue of the

Michigan Energy Journal, Tom Stanton asks the question

61

"Solar Access: It’s nice, but . . .." Does Michigan or any
other locality need another layer of legal regulation to
protect solar access? Stanton has suggested that state
legislators not waste their time on creating elaborate legal
statutes to protect solar users. Stanton further suggests,
"The bottom line suggests that local government should deal
with the issue via zoning ordinances . . . There are
literally dozens of more important, more helpful pieces of
energy legislation that could be introduced in Michigan."3

This view lends more credibility to the study in
suggesting that a new ordinance to deal with solar access is
not necessarily needed. Removal of the barriers that exist
in the present ordinances would appear to be sufficient.
That, indeed, is the difference applied in this example of

Vienna Township.

The planning profession is catching up and in some
respects lagging behind. Solar energy is no longer a topic
of discussion at the American Planning Association
Conventions or at Michigan Chapter Conventions. The
majority of literature written on solar access was written
prior to 1980. In the past five years new literature on
solar access has dwindled considerably. Solar access is no

longer a novel idea for planners and they are dismissing it

as a subject area as the "energy crisis" worsens.

Recommendations

 

There are many areas worthy of further study beyond the

changing of a township ordinance to include solar access in

62

residential use. Namely, commercial and industrial
structures should also be included. Transportation systems
should be studied in relationship to siting needs of solar
collectors. Earth sheltered housing and building codes
should be studied. This type of structure is intimately
attached to passive solar heating needs.

Economics of solar access and land regulation should
be compared. A study of planner’s awareness of energy needs
might also be appropriate. In a recent interview with Roger
Hamlin, he suggested that upon an informal survey of his
classes, nearly half of the planning students do not believe

4
there is an "energy crisis."

Summary

The Vienna Township Zoning Ordinance has been revised
in Chapter IV to include what are, in the author’s opinion,
the most relevant considerations for solar access.
Therefore, land use patterns within the township will begin
the process of consideration of solar access. Solar access
has unique land siting needs and in light of the past ten
years of energy abuse in the United States, it is important
to recognize that local governments can play an important
role in energy conservation.

Energy conservation is the key to America’s energy
problem. Conservation and energy waste have been the focus
of much literature. The American public is finally becoming

educated through its utility bills. The cost of energy

63

consumption is teaching the American public the necessity to
conserve. Chapter I gave a view of the world energy
problem. How does the State of Michigan face this "energy
crisis"? The most recent building code adopted by the state
is not the most energy conscious.5 Michigan seems to lag
behind other states in energy conservation development,
although it does have a few well established programs.
Michigan was among the first states to institute energy home
audits through Consumers Power Company. Energy awareness
and conservation has led Americans to look to the free power
sources available. The sun is a natural choice. Ancient
man/woman used it and so can modern man/woman.

The body of law which has developed to protect the
sun’s rays from reaching the earth is diverse. Different
legal mechanisms were initially introduced into American
case law as a means of dealing with the gap between
individual users of solar power and the regulations, or lack
thereof, to govern solar access protection. The state
survey conducted by the author concludes that different
states are dealing with the solar access problem
differently.

After the various solar access theories were examined
in Chapter II’s literature review, Chapter III described the
Vienna Township case study area from a planner’s
perspective. Included in the description of the township
was a review of the comprehensive plan and climate affecting

the area. Chapter IV is the applications section of the

64

study determining how best to reach the goal of solar access
protection through zoning and Comprehensive Planning
amendments in Vienna Township. This section brings the
literature reviewed in Chapter II into play on the "real
world" situation of Vienna Township. In simplest terms an
amendment to an existing zoning ordinance can give
individual property owners the incentive and the legal
protection to use solar as a means of heating their homes.
The sun has been around much longer than humans and will be.
Planners examine the possibilities of the future. The
planning profession must prepare for the future energy
shortages. the incorporation of solar access considerations
into existing land use regulations can accomplish this.

Chapter V is a conclusion of the findings as well as
implications for further study. Chapter V also contains a
Limitations and Summary section to provide a better

understanding of what is to be done next.

FOOTNOTES - CHAPTER V

1 .
City of Boulder, Colorado, Zoning Ordinance, Section
4676, 1980.

 

2
Tom Stanton, "Solar Access-Does Michigan Need It?"
Michigan Energy Journal, Summer 1984.
3
Ibid.
4

Statement by Dr. Roger Hamlin, Professor of Urban
Planning, Michigan State University, East Lansing, MI,
February, 1985.

5

The Michigan Energy Code Applied to One and Two
Family Dwellings, Michigan Department of Commerce/Energy
Administration, 1981.

65

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Bliss, Steve. “Selling Energy in a Soft Market," Solar Age,
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Boulder, Colorado, Zoning Ordinance, 1980.

Burchell, Robert W. and David Listokin, eds., Energy and
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Carroll, T. Owen, and Elissa B. Udell, "Solar Energy: Land
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66

 

67

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68

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69

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