Nebraska Does Not Void Anti-Solar Covenants: Zoning Relief Only

Start with what the statute does not say. Sections 66-901 to 66-914 never mention a homeowners association, a declaration of covenants, a condominium association or an architectural review committee, and they contain no provision declaring an anti-solar covenant void or unenforceable. States that give owners a covenant-voiding right say so in terms. Nebraska does not. The legislative findings at § 66-901 frame the whole scheme around a different problem: as solar and wind devices spread, "the possibility of future shading and obstruction of such devices by structures or vegetation will also increase," and the declared purpose of §§ 66-901 to 66-914 is to protect access to that energy. The target is a neighbor's tree or building, and the tools are zoning and a recorded private agreement.

The zoning half is § 66-913. Every Nebraska county and municipality with zoning or subdivision jurisdiction is authorized to write solar and wind considerations into its zoning regulations or ordinances and its comprehensive development plan. The statute lists what those considerations may cover: regulation of height, location, setback and use of structures, the height and location of vegetation with respect to property boundary lines, the type and location of energy systems or their components, and the use of districts to encourage solar and wind systems and protect access. A comprehensive plan may carry a dedicated solar and wind access element. This is permissive, not mandatory. A Nebraska city that has never adopted such provisions is not out of compliance with anything.

Section 66-914 is the individual relief valve, and it is worth reading closely because it is often described loosely. It applies when the application of a zoning or subdivision regulation or ordinance would prevent or unduly restrict the use of a solar energy system or wind energy conversion system. In that case the governing body of the county or municipality with jurisdiction is authorized to grant a variance or exception from strict application, so as to relieve the restriction and protect access, if relief can be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the regulation or ordinance. The verb is "authorized," not required, and the body granting it is the local governing body. A rule imposed by an association is not a zoning or subdivision regulation, so it is not something a § 66-914 variance can reach.

The definitions decide what qualifies. Under § 66-905 a solar energy system is a complete design or assembly consisting of a solar energy collector, an energy storage facility when used, and components for distributing the transformed energy, to the extent they cannot be jointly used with a conventional energy system; passive systems count, but not to the extent they serve other functions such as structural or recreational. Section 66-904 defines the collector broadly enough to include a mechanism converting wind energy into electricity and a maintained photosynthetic process, and § 66-906 covers passive components including ponds for evaporative cooling. Section 66-903 defines solar energy itself as radiant energy, direct, diffuse or reflected, received from the sun at wavelengths suitable for conversion into thermal, chemical or electrical energy.

The private tool is the solar agreement. Section 66-909 defines it as a right, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed for the purpose of ensuring adequate access of a solar energy system to solar energy. Section 66-910 lets any property owner grant one in the same manner and with the same effect as a conveyance of any other interest in real property. Section 66-911.01 requires the instrument, or an abstract of it, to be in writing and filed, recorded and indexed with the register of deeds in the county where the property sits, and to state at least the names of the parties, a legal description, the nature of the interest created, the consideration paid, a description of intended improvements, any decommissioning security or local decommissioning requirements, and the terms under which the interest may be revised or terminated. An abstract may omit items (4) through (7). Section 66-912.01 makes the agreement run with the land benefited and burdened and caps the initial term at forty years, which the parties may extend or renew by mutual written agreement. Section 66-912 makes it enforceable by injunction, proceedings in equity or other civil action. Separately, § 66-912.02 bars severing any interest in a wind or solar resource from the surface estate. All of that is consensual: it protects an array that an association already permitted, and it does nothing to compel permission.

For Nebraska condominiums the association's authority comes from a different chapter. Section 76-860(a)(1) lets a unit owners association adopt and amend rules and regulations, and § 76-860(a)(6) lets it regulate the use, maintenance, repair, replacement and modification of common elements. A roof is commonly a common element, so a Nebraska condominium board can bar panels there under its own act, and no provision of §§ 66-901 to 66-914 displaces that.

There is no penalty scheme here, because § 66-914 confers no right against a private party. 01, which gives a person adversely affected by a failure to comply with the Nebraska Condominium Act, the declaration or the bylaws a claim for appropriate relief with discretionary costs and reasonable attorney's fees. Where a local zoning or subdivision rule is the obstacle, the remedy is an application to the county or municipal governing body for a variance or exception under § 66-914, decided by that body on the statutory standard of no substantial detriment to the public good and no substantial impairment of the regulation's intent and purpose.

Where the obstacle is a neighbor shading a recorded solar agreement, § 66-912 supplies the remedy: injunction, proceedings in equity or other civil action, brought in district court. 01 requires is the common failure point in that last route.