GV finally decides how it will regulate ground-mounted solar energy systems…and it’s complicated – Part 4 in a series

BY FREDA MIKLIN
GOVERNMENTAL REPORTER

After ten meetings over 12 months on the subject of regulating ground-mounted solar panels at homes in Greenwood Village, on December 6, the city council passed on final reading an ordinance describing how its residents may install such systems on their property going forward.

One of the requirements is that the total surface area (length times width of each panel) of the solar energy system must be counted toward the maximum square footage allowed on the property for accessory structures. The GV land development code states that, “Accessory structures shall not occupy more than thirty percent (30%) of a rear yard or thirty percent (30%) of a side yard.” Therefore, any GV resident who wishes to install a ground-mounted solar system must first calculate the number of square feet of ground in his/her side yard or back yard, depending upon where he or she wants to put solar panels. Then they must measure the area in square feet of each of the solar panels in the array and make sure that that total area, combined with the number of square feet of their property occupied by any other accessory structures they have or may want to have in the future, such as sheds, barns, tennis courts, sports courts, swimming pools, etc., does not exceed 30% of the number of square feet that comprise the side or back yard that they wish to use to house the solar panels and any other accessory structures. Additionally, these clean energy systems must be accompanied by “year-round dense landscape plantings of sufficient height and mass to effectively screen them at least 80% from view” if they “are visible from ground level living areas of adjacent properties.” The new regulation also requires that solar arrays can be no taller than six feet on GV lots three-fourths of an acre or less and no taller than nine feet on GV lots of any size that are one acre or larger. 

While those regulatory details were being negotiated over the past year, the GV council asked the city’s planning staff to research how other cities regulate ground-mounted solar panel systems. On September 13, city staff reported that Aurora, Boulder, Castle Rock, Cherry Hills Village, Denver, Englewood, Lakewood, Littleton, Lone Tree, Parker, Thornton and Westminster have no screening requirements for ground-mounted solar arrays, except that Lakewood requires that solar arrays be screened only if they are in the front yard of a property. (In GV, they would not be permitted in a front yard.)  Staff reported that most but not all cities required only that ground-mounted solar systems meet setback requirements. Similarly, in nearby Centennial, The Villager found that ground-mounted solar systems were not limited in height nor required to be screened, only that they meet setback requirements.

The language of this new regulation was settled on after discussions in ten study sessions and city council meetings beginning on January 4, 2021, when Council Member Dave Bullock first reported that a resident of GV district one had complained to him about what they felt was an unsightly solar array on a nearby property. It was discovered during one of the subsequent meetings on the issue held on May 3, 2021, May 17, 2021, June 7, 2021, July 19, 2021, August 16, 2021, September 13, 2021, October 18, 2021 and November 1, 2021, that the large, unscreened solar array that the resident had complained about was installed with a properly approved GV city permit. The solar array was not screened because the city did not require that it be screened. During one of the meetings at GV City Hall during the summer, The Villager talked to one member of the couple who had lodged the original complaint with Bullock and asked her if she or her husband had ever spoken to their neighbor about their concerns. She told us they had not. We also discovered that Bullock too had never spoken to the district one resident with the unscreened solar array about their neighbor’s concerns.

During the year that it took the city council to agree on how it wished to regulate ground-mounted solar panels, a number of council members, including former Council Member Jerry Presley, who also represented district one, former Council Member Tom Dougherty, and at times, current Council Member Anne Ingebretsen, recommended that the problem could be resolved by the city simply requiring that new ground-mounted solar arrays be “reasonably screened” from neighbors views.

On September 13, as that idea was being discussed and debated, Presley pointed out, “The word reasonable or reasonably appears 155 times in our municipal code. It’s used to describe how to screen trash cans, it’s used to describe how to screen equestrian mirrors and 144 other uses of that word. I don’t think that we’re at risk by having the staff make the determination of what reasonable is.” (In 2019, the council adopted another new ordinance solely to regulate equestrian mirrors after a resident in district one complained about mirrors being used in some locations of a riding arena for a teen-aged resident training for equestrian competition in the Olympics.)  In response to Presley pointing out that the term “reasonable” or “reasonably” was commonly used in GV’s Municipal Code, Mayor Pro Tem Dave Kerber opined that, “A reasonable standard is no standard at all.” Bullock said, on that occasion and several others, that he was against the use of the term “reasonably screened” because it would be based on the judgment of the city’s community development director and, although he trusted the current community development director, he did not trust that future city staffers in that job would make a good judgment in that regard. Bullock insisted that a percentage of screening would be a better solution if the ordinance contained a photograph of what that was expected to look like. The city attorney pointed out that such a photograph could not be a part of an ordinance, however the council could promulgate a new regulatory resolution that contained a photograph of what sufficient screening should look like, in conjunction with the new regulatory ordinance on the subject. In the end, that is what the council decided to do.

There is no language in the new regulatory ordinance encouraging GV residents to use solar energy or any other renewable energy. A new state law, SB21-261, passed this year, says that, “customer-sited renewable energy generation facilities…can make important contributions toward meeting Colorado’s declared goal of reducing greenhouse gas emissions while providing a reliable, adaptable supply of electricity for homes, businesses, and the rapidly increasing numbers of electric vehicles, and that existing limits on customer-sited renewable energy generation facilities unnecessarily restrict this potential.” The new statute removed the limitation of 120% of a utility customer’s necessary use of energy for renewable energy credits, allowing utility customers to produce higher amounts of renewable energy than they use, which could then be stored or sold back to the utility. When that issue was raised over the course of the debate on this new regulatory ordinance, Bullock, who sponsored this rule, said, “I for one feel no connection or commitment to anything our legislature does because there’s many people in Greenwood Village that don’t agree with what the legislature passes.” 

 It is notable that the new regulatory ordinance applies only to ground mounted solar arrays. Greenwood Village does not regulate or limit rooftop solar panels. The ability to use roof-mounted solar panels is a function of the design of a roof, including where sun hits it and at what angle. A 2016 report by the National Renewable Energy Laboratory of the United States Department of Energy states that, for Colorado statewide, the annual generation potential for rooftop solar arrays is only 27% of total energy needs for small buildings (5,000 square foot footprint or less) and 17% of total energy needs for medium and large buildings (over 5,000 square foot footprint). Still, according to the U.S. Energy Information Administration, since 2010, Colorado’s renewable electricity net generation has more than tripled, led by increased wind and solar, and accounted for 30% of the state’s total generation in 2020. 

It has been Colorado law for ten years that homeowners’ associations cannot “prohibit or restrict the installation or use of a renewable energy device.” Any rules or regulations by HOAs to do so are deemed, “void and unenforceable.”

fmiklin.villager@gmail.com

Editor’s note: Previous reports in this series were published in The Villager on July 29, 2021, August 5, 2021 and September 23, 2021.