Trees Block Solar Panels, and a Feud Ends in Court

NY TImes

April 7, 2008

By FELICITY BARRINGER

SUNNYVALE, Calif. — Call it an eco-parable: one Prius-driving couple takes pride in their eight redwoods, the first of them planted over a decade ago. Their electric-car-driving neighbors take pride in their rooftop solar panels, installed five years after the first trees were planted.

Trees — redwoods, live oaks or blossoming fruit trees — are usually considered sturdy citizens of the sun-swept peninsula south of San Francisco, not criminal elements. But under a 1978 state law protecting homeowners’ investment in rooftop solar panels, trees that impede solar panels’ access to the sun can be deemed a nuisance and their owners fined up to $1,000 a day. The Solar Shade Act was a curiosity until late last year, when a dispute over the eight redwoods(a k a Tree No. 1, Tree No. 2, Tree No. 3, etc.) ended up in Santa Clara County criminal court.

The couple who planted the trees, Carolynn Bissett and Richard Treanor, were convicted of violating the law, based on the complaint of their neighbor, Mark Vargas, and were ordered to make sure that no more than 10 percent of the solar panels are shaded.

A few weeks after The San Jose Mercury News wrote about the situation, the first act ended with the couple pruning 10 feet to 15 feet of Tree No. 6’s upper branches. The event drew more cameras than an episode of “Extreme Home Makeover.”

“Across the nation, everyone’s had a push-and-shove situation with a neighbor,” said Joe Simitian, a Democratic state senator from nearby Palo Alto. “Everyone who reads this story can imagine themselves on one side or the other of that backyard fence.”

To avoid future problems, Mr. Simitian has introduced a bill to ensure that trees planted before solar panels are installed have a right to grow in peace. If he succeeds, the state that legalized medical marijuana may soon do the same for shade.

The solar-redwoods dispute is unusual largely because it is a solar-panel owner who is mounting the challenge. Typically, solar-panel owners have to play defense.

For example, despite a 1980 Arizona law to protect homeowners who install photovoltaic panels, Henry Speak, a retiree in Avondale, Ariz., had to battle his homeowners’ association through a series of state courts to keep his rooftop solar system without adding expensive screening — screening that, like the redwoods, would have reduced the panels’ efficiency.

On both sides of the Sunnyvale backyard fence, there is evidence of environmental virtue — one Prius (Ms. Bissett and Mr. Treanor), one electric car (the Vargases), one water-free xeriscaped front yard with recycled-plastic borders (Ms. Bissett and Mr. Treanor), 128 solar panels providing almost all the power for one home (the Vargases), and eight carbon-dioxide-sipping, bird-friendly redwood trees in various stages of growth (Ms. Bissett and Mr. Treanor).

But putting the eco-accent of the feud aside, other elements of the story have universal resonance.

Carolynn Bissett, 48, a contracts administrator for the City of Palo Alto, moved back into her childhood home with her new husband in the mid-1990s. The house once backed onto a cherry orchard, but they found the orchard gone, replaced by large two-story houses, one of which was 17 feet from their lot.

Mark Vargas, 38, moved into that house in 1993 and began raising a family that now includes three children. He put a hot tub in the small backyard and planted a bit of corn that thrived in the southern sun.

There was little communication between the neighbors — until Ms. Bissett introduced three redwood trees in 1996. In the next five years, she planted five more. As they grew, the ribbon of Mr. Vargas’s backyard got less sunlight; the corn was abandoned.

In 2001, Mr. Vargas installed solar panels on his roof and on a trellis over his hot tub. He then informed his neighbors — brusquely, they say — about the solar shade law, saying they must cut down all of the redwoods. He says he asked them politely to remove the trees and offered to pay for removal and replacement.

There were efforts to invoke local ordinances. Did Mr. Vargas get a permit for his solar system? Did the redwood roots interfere with a municipal storm drain easement? The backyard fence runs along the border between the cities of Sunnyvale and Santa Clara, doubling the number of agencies involved.

Mr. Vargas got no satisfaction until, in 2005, the deputy district attorney, John Fioretta, began the first prosecution under the Solar Shade Act. It ended in December with the conviction of Ms. Bissett and Mr. Treanor by Judge Kurt Kumli of Santa Clara County Superior Court.

The judge found that Trees Nos. 4, 5 and 6, which cast little shade when the solar panels were installed, were now collectively blocking more than 10 percent of the panels over the hot tub. Trees Nos. 1, 2 and 3 shaded the area when the panels were installed, so they were exempt, and Trees Nos. 7 and 8 did not violate the law, the judge ruled.

Mr. Treanor and Ms. Bissett said that after spending $37,000 on legal fees, they had no money left for an appeal. Last month, to comply with the order — even though Judge Kumli said he found it hard to call the trees a “nuisance” — the couple called the pruners. The judge postponed a decision on whether the pruning of Tree No. 6 was sufficient until after Dec. 21, the winter solstice this year, when the sun is lowest in the sky and the trees cast maximum shade.

Mr. Treanor and Ms. Bissett still do not quite believe what happened. “It was like I’d been hit in the chest,” Ms. Bissett said of her reaction upon opening the envelope that contained the criminal charge.

Mr. Vargas said it all could have been avoided. “My entire goal was to find a more appropriate tree to place between our two properties,” he said. “To have a 60-foot barrier is unreasonable.”

He said he was consulting his lawyer about filing a civil suit, possibly related to the storm-drain easement.

“We hear him typing away at night,” Ms. Bissett said.

Meanwhile, Senator Simitian’s bill is headed for a committee vote this month. It determines when trees can grow amid solar panels (if they are planted ahead of time) and when they cannot (if they are planted after a solar-panel is installed). The state, Mr. Simitian pointed out, has a law to encourage the construction of one million solar roofs. “I’m trying to avoid a million neighborhood arguments,” he said.