The Key to Unlocking the Power of Small Scale Renewable Energy: Local Land Use Regulation

Myriad federal and state programs have been promoted to incentivize the research and development of renewable energy as a means of achieving sustainability and producing more affordable alternative energy systems, and these programs could potentially have a profound impact on the way that electricity is produced and consumed in the United States. Small-scale renewable energy generation from sources such as solar and wind, that can be used at the consumer level as a source of power for homes and small businesses, is an important part of this paradigm shift. However, regardless of the fiscal incentives offered to clean-tech companies to design and market these products, as well as the fiscal incentives to homeowners and business owners to purchase and install these technologies, state and local laws can inadvertently impede their installation. These barriers may be caused by outdated statutes and municipal codes or by historic district and aesthetic regulations. Restrictive covenants and deed restrictions in homeowners association communities may further impede the goal of siting small scale renewable energy sources. In response to these problems, many state and local governments have sought to promote small-scale renewable energy development through amendments to comprehensive planning and zoning laws, as well as through utility regulations and various financial incentives. This article provides an overview of some of the strategies that have been used to increase the use of small-scale renewables, focusing on non-commercial renewable energy systems installed at the home or business level. The article begins in Part II with a discussion of various renewable energy incentives offered by the federal and state governments to promote the use of these alternative sources of electricity, including financial and permit-ting incentives. Part III continues with a detailed examination of how the land use regulatory system can be used to promote small-scale renewable energy by employing traditional zoning techniques, asserting that without an appropriate local land use regime, the incentives reviewed in Part II cannot be effectively utilized. Part IV concludes with a warning to local governments that if they fail to accommodate the emerging federal and state policies supporting the siting of renewable energy sources, they may face preemptive statutory measures in the area of land use regulation. This creates perhaps the greatest incentive for local governments to plan and regulate responsibly for promoting the appropriate use of small-scale renewable energy