CITY OF BOULDER

TITLE 9 LAND USE REGULATIONS

Section:

9-8-1 Legislative Intent

9-8-2 Definitions

9-8-3 Applicability of Chapter

9-8-4 Solar Access Areas Established

9-8-5 Basic Solar Access Protection

9-8-6 Amendment of Solar Access Areas

9-8-7 Solar Access Permits

9-8-8 Permit Standards and Issuance

9-8-9 Term and Effect of Permit

9-8-10 Implementation and Enforcement

9-8-11 Right of Private Enforcement

9-8-12 Exemptions

9-8-13 Exceptions

9-8-14 Exception Standards and Issuance

9-8-15 Solar Siting Requirements

9-8-16 Authority to Issue Regulations

9-8-1 Legislative Intent.

The city council finds that the public health, safety, and welfare of the citizens of this city are dependent upon reliable and affordable energy sources; the nation's conventional energy supplies are diminishing, and the long- term trend is toward depletion of the world's fossil fuel resources and higher energy prices; solar heating and cooling of buildings, solar heated hot water, and solar generated electricity can provide a significant contribution to the city's energy supply; a significant barrier to the use of solar energy is the concern among citizens that the solar radiation necessary for solar energy systems to function will be blocked by structures or vegetation located on property under the control of others, including the city; and existing laws and regulations are inadequate to provide the degree of protection needed. It is therefore the purpose of this chapter to regulate structures and vegetation on property, including city-owned and controlled property, to the extent necessary to insure access to solar energy, by reasonably regulating the interests of neighboring property holders within the city. 

9-8-2 Definitions

The following terms have the following meanings throughout this title, unless the context clearly indicates otherwise:

a) "Beneficiary" means the owner or possessor of any real property on which a solar fence has been hypothesized pursuant to this chapter, the owner or possessor of any real property for which a solar access permit has been issued pursuant to this chapter, and any person entitled to the beneficial use of any energy produced by a solar energy system for which access is protected, in whole or in part, by the terms of this chapter.

b) "Building envelope" means that area on any lot on which a structure can be erected consistent with existing setback requirements, and is defined by the setback lines applicable to that lot. For planned unit developments or other property that may not be subject to setback requirements as prescribed in Section 9- 3.2-1, "Bulk Requirements", B.R.C. 1981, the building envelope is defined by a line running around the protected structures on the property eight feet from their exterior walls but running no closer than five feet from any property boundary (to the extent required to avoid running closer than five feet to any property boundary this line may run less than eight feet from the exterior wall of any protected structure).

c) "Development permit" means any permit or authorization issued by the city as a prerequisite for undertaking any improvement to real property including, without limitation building permits, planned unit developments, variances, height or special review permits, and non-conforming use permits.

d) "Obstruction of solar access protected by permit" means that any object, structure, building, or vegetation casts a shadow on the collector portion of any existing or planned solar energy system that is protected by a solar access permit during the hours of the day and season of the year for which access is protected by the permit.

e) "Possessor" of real property means a person not the owner of the property but who is responsible as lessee, caretaker, or otherwise for its care and upkeep and is in control of the property.

f) "Solar fence" means a hypothetical obstruction designed as provided in Section 9-8-5, B.R.C. 1981, "Solar Access Protection".

g) "Solar noon" means the time at which the sun is due south and in its highest position above the horizon.

h) "Solar energy system" means any human-made system that relies upon sunshine as an energy source and is capable, through physical, chemical, or biological means, of collecting, distributing, storing (if appropriate to the technology), and applying solar energy to beneficial use so as to reduce the amount of nonsolar energy that would otherwise be used by at least ten percent.

Ordinance Nos. 4803 (1984); 5076 (1987); 5562 (1993).

9-8-3 Applicability of Chapter.

a) Governmental organizations not under the jurisdiction of the city may elect to enjoy the benefits of solar access under this chapter if they also consent in a written agreement with the city to be bound by its restrictions.

b) Property owned or possessed by the city is subject to, and enjoys the benefits of, this chapter. In connection with its property, the city may submit such protests and applications and may take such actions as are afforded any other person subject to the provisions of this chapter.

c) All private property is subject to this chapter.

9-8-4 Solar Access Areas Established.

a) Three solar access areas are hereby established: SA Area I, SA Area II, and SA Area III. The purpose of dividing the city into solar access areas is to provide maximum solar access protection for each area of the city consistent with planned densities, topography, and lot configurations and orientations. 1) SA Area I is designed to protect solar access principally for south yards, south walls, and rooftops in areas where, because of planned density, topography, or lot configurations or orientations, the preponderance of lots therein currently enjoy such access and where solar access of this nature would not unduly restrict permissible development. SA Area I includes all property in RR-E, ER-E, LR-E, and MH-E zoning districts. 2) SA Area II is designed to protect solar access principally for rooftops in area where, because of planned density, topography, or lot configuration or orientation, the preponderance of lots therein currently enjoy such access and where solar access of this nature would not unduly restrict permissible development. SA II Area includes all property in LR-D, MR-E, MR-D, MR-X, MU-X, HR-E, HR-D, HR-X, I-E, and I-D zoning districts. 3) SA Area III includes areas where, because of planned densities, topography, or lot configurations or orientations, uniform solar access protection for south yards and walls or for rooftops may unduly restrict permissible development. Solar Access protection in SA Area III is provided through permits. SA Area III initially includes property in all zoning districts other than those set forth in paragraphs (1) or (2) of this subsection.

b) The city council hereby approves the map attached hereto and incorporated herein as Exhibit I, which shows the division of the city into solar access areas. This map shall be kept available for public inspection and shall be amended from time to time as solar access areas are established or amended or as annexations occur.

Ordinance Nos. 4928 (1985); 5009 (1986); 5391 (1991).

9-8-5 Basic Solar Access Protection.

a) A solar fence is hereby hypothesized for each lot located in SA Area I and SA Area II.

Each solar fence completely encloses the lot in question, and its foundation is contiguous with the lot lines. Such fence is absolutely vertical, and uniformly opaque, and lacks any thickness. 1) No person shall erect an object or structure on any other lot that would shade a protected lot in SA Area I to a greater degree than the lot would be shaded by a solar fence twelve feet in height between two hours before and two hours after local solar noon on a clear winter solstice day. 2) No person shall erect an object or structure on any other lot that would shade a protected lot in SA Area II to a greater degree that the lot would be shaded by a solar fence twenty-five feet in height between two hours before and two hours after local solar noon on a clear winter solstice day. 3) Solar fences are not hypothesized for lots located in SA Area III. Solar access protection in SA Area III is available under this chapter only through permits, as hereinafter provided.

b) Notwithstanding the provisions of this section, a structure in SA Area III may be erected within the building envelope up to a height of thirty-five feet. However, unless an exception is granted pursuant to Section 9-8- 13, "Exceptions", B.R.C. 1981, no such structure may exceed thirty-five feet in height if any such excess height would cause the structure to violate, or to increase the degree of violation of, the basic solar access protection provided for any lot in SA Area I or SA Area II.

c) Notwithstanding the provisions of this section, nothing in this section shall be deemed to prevent the principal building on a lot in SA Area I or II from being erected within the building envelope up to the height of the solar fence in the area in which the structure is located.

9-8-6 Amendment of Solar Access Areas.

a) The planning board may amend solar access areas from time to time on its own motion or on petition of any person with a property interest in the subject area. A petitioner shall submit a list to the planning board of the names and addresses of all owners of property within and adjacent to the subject area and within one hundred feet to the north and sixty feet to the east and west of the subject area.

b) Before amending a solar access area, the planning board shall conduct a public hearing on the proposal. The board shall provide notice of the time, date, and place of the hearing and a brief summary of its subject matter as follows: 1) By publication once in a newspaper of general circulation in the city at least ten days before the hearing; 2) At least ten days prior to the hearing, by posting on the subject area along the part thereof fronting on any street, at intervals of approximately five hundred feet, including notification that any inquiry about the matter may be directed to the city manager; and 3) At least ten days prior to the hearing, by sending written notice by first class mail to owners of property within the subject area and to the owner of each separately owned lot adjacent to or within one hundred feet to the north and sixty feet to the east and west of the subject area. The purpose of this notice is reasonably to insure that owners of property within and adjacent to the subject area are aware of a proposed amendment, but any minor omission or defect in the mailing in no way impairs the validity of the proceedings. If any omission or defect in the mailing brought to the attention of the planning board at or prior to the public hearing, the planning board shall consider the defect or omission prior to proceeding on the application. If the planning board finds that the omission or defect impairs or has impaired such a property owner's ability to participate in the public hearing, the planing board shall continue the public hearing on the proposed amendment for at least ten days. Any omission or defect in the aforementioned notice that is not brought to the attention of the planning board or that is found not to have impaired a surrounding property owner's ability to participate in the public hearing by the planning board in no way impairs the validity of the proceeding for the proposed amendment.

c) A solar access area may be amended only after the planning board determines, on the basis of clear and convincing evidence presented at public hearing, that one or more of the following conditions applies to the subject area: 1) The subject areas was established as a particular solar access area in error, and as currently established it is inconsistent with the purposes of the solar access areas; 2) Permissible land uses and densities in the subject area are changing or should change to such a degree that it is in the public interest to amend the solar access area for the area; or 3) Experience with application of this ordinance has demonstrated that: A) The level of solar access protection available in the subject area can be increased without significant interference with surrounding property; or B) Application of the ordinance has unreasonably interfered with use and enjoyment of real property in the subject areas.

d) When any area is amended from SA Area I to another solar access area or from SA Area II to SA Area III, any solar access beneficiary whose solar access is affected by such change may apply for a permit to provide solar access protection to any solar energy system installed and in use on the date the change becomes effective.

Ordinance No. 4928 (1985).

9-8-7 Solar Access Permits.

a) In order to afford opportunities for beneficial use of solar energy in circumstances where the basic solar access protection established by this chapter is inadequate to protect potential solar energy users or to insure maximum utilization of solar energy resources consistent with reasonable use of surrounding property, persons may obtain permits under this chapter. Beneficial use is the limit and measure of any right conferred by permit and no permit shall restrict use of other property beyond the extent reasonable to insure efficient and economical beneficial use of solar energy by the permittee. Further, no permit shall restrict the reasonable use and enjoyment of adjacent properties.

b) Any owner or possessor of property who has installed a solar energy system or who intends to install such a system within a year from the date of application may apply for a permit if: 1) The lot for which a permit is requested is included in SA Area III; 2) The system that has been or will be installed is capable of applying to beneficial use substantial amounts of solar energy outside the hours of the day during which basic protection is provided for under this chapter; 3) A solar energy system is in existence on the lot or is planned to be built within a year and the lot is changed from SA Area I to another solar access area or is changed from SA Area II to SA Area III, resulting in diminution or elimination of protection previously afforded the user or potential user of the solar energy system; 4) A new structure is built on a lot in SA Area I or SA Area II after the effective date of this chapter whose locations renders the basic solar access protection inadequate, and the structure could not reasonably have been constructed at a location where it would have substantially benefited form the basic solar access protection provided by this chapter; or 5) The applicant demonstrates that there are substantial technical, legal, or economic factors that render it infeasible to collect a reasonable amount of solar energy by utilizing the basic solar access protection available under this chapter without a permit. Such factors include, without limitation, structural characteristics of the applicant's building that limit possibilities for economical retrofit of a solar energy system or shading by objects, structures, or vegetation that are beyond the applicant's control and are exempt from the requirements of this chapter.

c) An applicant for a permit shall pay the fee prescribed by Subsection 4-20-33(a), B.R.C. 1981, and complete an application in writing on a form furnished by the city manager that includes, without limitation: 1) The applicant's name and address, the owner's name and address, and a legal description of the lot where the solar energy system is located or will be located; 2) A statement by the applicant that the solar energy system is already installed or that the applicant intends to install such a system on the lot within one year of the issuance of the permit; 3) A description of the existing or proposed size and location of the system, its orientation with respect to south, and its elevation and orientation from the horizontal; 4) A statement describing the beneficial use to which solar energy is or will be applied and certifying the energy capacity of the system in BTU's or BTU equivalents and its reasonable life expectancy; 5) A statement and accurate drawings describing the access protection desired beyond the basic solar access protection provided by this chapter, specifying the hours of the day, seasons of the year, and locations on the applicant's lot for which protection is desired; 6) A description of all existing vegetation, objects, and structures wherever located that will or may in the future shade the solar energy system, together with a map or drawing showing their location to the extent possible; 7) Information showing that the applicant has done everything reasonable in designing and locating the system so as to minimize the impact it will have on use and development on nearby land; 8) Survey plats or other accurate drawings showing lot lines, dimensions, and topography of the lot on which the solar energy system is or will be located and all surrounding properties that are intended to be subject to the permit; and 9) A list of all lots that may be affected by the permit, including the names and addresses of all owners of such lots.

d) Upon determination that the application appears to comply with the requirements in subsections (b) and (c) of this section, the city manager shall accept the application and mail notice to all property owners listed therein by certified mail, return receipt requested: (1) informing property owners of the nature of the permit sought and of the importance of calling to the city manager's attention any defect in the information that the application is required to contain; 2) including an accurate drawing showing the restrictions that would be imposed on neighboring lots by the proposed permit; and 3) describing the procedures and deadline for filing an objection.

e) The applicant shall conspicuously post a sign, furnished by the city, on the lot in question stating that a solar access permit is pending. The applicant is responsible for insuring that the sign is posted for thirty days following the date the notice was mailed.

Ordinance No. 5076 (1987).

9-8-8 Permit Standards and Issuance.

a) The city manager may issue a solar access permit with such additional conditions or restrictions as the manager deems appropriate under the standards of subsection (c) of this section following the thirty day posting period unless: 1) An objection is filed within the thirty day period, or 2) The manager determines that the standards of subsection (c) of this section are not met.

b) If the city manager determines that the standards of subsection (c) of this section are not met or an objection is filed within the thirty days, the manager shall notify the applicant and hold a hearing before the board of zoning adjustment under the procedures prescribed by Chapter 1-3, B.R.C. 1981, except that the notice of hearing shall be mailed to the applicant and any persons who filed objections and any other persons requesting notice at least ten days before the hearing. The burden of proof is on the applicant to show that issuance of the permit is in the public interest and conforms, or can with appropriate conditions conform, to the standards of subsection (c) of this section.

c) In order to issue a permit, the city manager, where no objection has been filed, or the board of zoning adjustment, where timely objection has been filed or the city manager has made an adverse determination, must find that each of the following requirements have been met: 1) The applicant meets at least one of the eligibility standards of Subsection 9-8-7(b), B.R.C. 1981; 2) The applicant has done everything reasonable in designing and locating the proposed solar energy system to minimize the impact it will have on use and development of nearby land. However, the fact that an alternate design or site may be more expensive does not necessarily establish that the applicant's failure to select that alternate design or site is reasonable. In making this finding, the board or city manager may consider whether the additional cost of alternative, less intrusive sites or solar energy systems, if any, would exceed the difference between the adverse effects, if any, imposed on other lots by the proposed site and solar energy systems and the adverse effects that would be imposed on other lots by alternative sites or solar energy systems; 3) Issuance of the permit is consistent with reasonable use and enjoyment of nearby land, excluding landscaping considerations. Issuance of the permit will be presumed not to be consistent with reasonable use and enjoyment of nearby land if issuance would prevent any affected property owner from erecting, consistent with legal requirements, a structure of a size, character, and usefulness reasonably typical of those in existence on similar lots subject to the same zoning requirements located within one-fifth mile of the lot in question. However, nothing in this section prohibits issuance of a permit only because it would impose requirements on a neighboring lot owner that are more restrictive than the height or setback requirements that would otherwise apply, if reasonable use and enjoyment of such lot is preserved; and 4) Issuance of the permit is consistent with reasonable landscaping of nearby land. In determining consistency, the board shall consider the need for any additional landscaping in the future, including any energy conservation value that such landscaping may have.

d) The board may grant permits subject to such terms and conditions as it finds just and equitable.

e) The city manager shall maintain complete records of all permits that have been issued and shall make them readily available for public inspection.

Ordinance Nos. 4928 (1985); 5076 (1987).

9-8-9 Term and Effect of Permit.

a) A solar access permit expires if:

1) A functioning system is not installed within a year after the issuance of the permit;

2) The solar energy system protected by the permit has not functioned to fulfill its intended purpose for a continuous period of two or more years; or 3) The term established under subsection (b) of this section expires.

b) The city manager or the board of zoning adjustment shall specify the term of each solar access permit, which shall be for the reasonable life expectancy of the particular solar energy system, as determined by the manager or the board. At the expiration of a permit, it may be renewed in the same manner as new permits are issued.

c) If no functioning solar energy system is installed within a year of the issuance of the permit, the city manager may grant a renewal of up to one additional year to the holder of the expired permit if the permittee demonstrates that the permittee has exercised due diligence in attempting to install the system.

d) A solar access permit is enforceable by the beneficiary, if and only if the beneficiary has properly recorded the permit in the real property records of the Boulder County Clerk and Recorder with respect to each affected lot in such a manner that it could be detected through a customary title search.

e) On sale, lease, or transfer of the lot on which the protected solar system is located, the right to enforce its terms passes to the beneficial user of the system.

f) No property owner shall be requested to remedy vegetative shading unless a protected solar system is installed and functioning.

9-8-10 Implementation and Enforcement

a) Each application for a development permit for a building of a height greater than allowed by Subsection 9-8- 5(b) or (c), B.R.C. 1981, shall include a graphic representation showing the shadows that would be cast by the proposed structure between two hours before and two hours after local solar noon on a clear winter solstice day, the solar fences on all lots that the shadows would touch, and all possible obstructions of solar access protected by permit.

b) No proposed development permit may be approved for any structure that would violate the basic solar access provided by this chapter unless the object or structure is exempt or an exception is granted by the city manager or the board of zoning adjustment for such purpose.

c) No proposed development permit may be approved for any structure that would obstruct solar access protected by permit, unless the object or structure is exempt.

d) Upon application of a beneficiary to the board of zoning adjustment, vegetative shading may be remedied to the extent necessary to comply with the terms specified in a solar access permit. However, no vegetation in the ground and growing at the time the permit application is filed may be ordered removed or trimmed. After notice to at least the beneficiary and the vegetation owner, the board shall hold a hearing and, based on evidence submitted by any interested party, may issue any necessary order and specify the time in which actions thereunder must be performed. Absent unusual circumstances, the cot of remedying shading from vegetation not in the ground and growing at the time the permit application if filed shall be borne by the vegetation owner. If an owner or possessor of real property who receives an order to remedy vegetative shading fails to comply within the specified time, the city manager may order the condition remedied and charge the actual cost thereof to the person to whom the order is directed, who shall pay the bill. If any person fails or refuses to pay when due any charge imposed under this section, the manager may, in addition to taking other collection remedies, certify due and unpaid charges to the Boulder County Treasurer for collection as provided in Section 2-2-12, B.R.C. 1981.

9-8-11 Right of Private Enforcement.

Any person with an interest in any matter that is subject to the provisions of this chapter may initiate a lawsuit in a court of competent jurisdiction to enforce those provisions. If such a suit challenges the validity of an action or decision by a city agency or official and includes the city as a defendant, it shall be brought in accordance with applicable provisions of state law.

9-8-12 Exemptions.

a) Structures in existence on the date of establishment of an applicable solar access area or structures and vegetation in existence on the date of issuance of an applicable solar access permit are exempt from the application of this chapter. For purposes of this subsection, structures are deemed to be in existence on the date of issuance of a development permit authorizing their construction. Such structures shall be considered as prior non-conforming uses and shall be governed by Sections 37-801 through 37-805 of the Revised Code of the City of Boulder, Colorado 1965, as such sections were in effect on June 30, 1982.

b) Insubstantial breaches of the basic solar access protection or of the protection provided by a solar access permit are exempt from the application of this chapter. Breaches are insubstantial if at all protected points and during the protected time and during the time period for which protection has been provided, they together reduce the total amount of solar energy available by ten percent or less. Insubstantial breaches may include, without limitation, those caused by utility poles, chimneys, wires, flag poles, slender antennas, or tree trunks and branches.

c) No order may be issued and no action may be required of any person under this chapter if, because of natural terrain features, obstructions under the control of the beneficiary, obstructions exempted from the application of this chapter, or obstruction permitted to exist under the terms of this chapter, issuing such an order or forcing such requirement will not materially increase the access of the beneficiary to usable direct sunlight.

d) No order may be issued and no action may be required of any development permit applicant under this chapter if the shadow cast by a proposed structure between two hours before and two hours after local solar noon on the winter solstice falls entirely outside of the building envelope of a protected lot.

e) Unavoidable temporary obstructions of a protected solar access necessitated by construction activities or other necessary and lawful purposes are exempt to the extent that they do not exceed ten days in any three month period and thirty days in any year.

Ordinance No. 4969 (1986).

9-8-13 Exceptions.

a) Any person desiring to erect an object or structure or increase or add to any object or structure in such a manner as to interfere with the basic solar access protection may apply for an exception.

b) An applicant for an exception shall pay the application fee prescribed by Subsection 4-20-33(b), B.R.C. 1981, and apply on a form furnished by the city manager that includes, without limitation: 1) The applicant's name and address, the owner's name and address, and a legal description of the lot for which the exception is sought; 2) Survey plats or other accurate drawings showing lot lines, structures, solar systems, dimensions and topography as necessary to establish the dimunition of basic solar access protection expected on each lot that would be affected by the exception, together with a graphic representation of the shadows that would be cast by the proposed structure during the period from two hours before to two hours after local solar noon on a clear winter solstice day. The requirements of this paragraph may be modified by the city manager, depending upon the nature of the exception sought; 3) A list of all lots that may be affected by the exception, including the names and addresses of all owners of such lots; 4) A statement and supporting information describing the reasons that less intrusive alternatives, if any, to the action that would be allowed by the exception cannot or should not be implemented; and 5) A statement certifying that the proposed structure would not obstruct solar access protected by the permit.

c) Upon determination that an application appears to comply with the requirements in subsection (b) of this section, the city manager shall accept the application and mail notice to all property owners listed therein by certified mail, return receipt requested: 1) informing property owners of the nature of the exception sought and of the importance of calling to the city manager's attention any defect in the information that the application is required to contain; 2) including an accurate drawing showing the shadow that would be cast by the proposed structure; and 3) including a description of the procedure for filing an objection and a statement that written objections would be received by the manager within three weeks of the notification.

9-8-14 Exception Standards and Issuance.

a) The city manager shall grant an exception with such additional conditions or restrictions as the manager deems appropriate under the standards of subsection (d) of this section following the three week notification period unless: 1) An objection is filed within the three week period, or 2) The manager determines that the standards of subsection (c) of this section are not met.

b) In lieu of the procedures in subsection (a) of this section and Subsection 9-8-13(c), the city manager may grant an exception with such additional conditions or restrictions as the manager deems appropriate under the standards of subsection (d) of this section, if: 1) The applicant presents the manager with an affidavit of each owner of each affected lot declaring that such owner is familiar with the application and the effect the exception would have on the owner's lot, and that the owner has no objection to the granting of the exception, and 2) The manager determines that the application complies with the requirements in Subsection 9-8-13(b), and 3) The manager finds that each of the requirements of subsection (d) of this section have been met.

c) If the city manager makes an adverse decision on the merits or an objection is filed within three weeks, the applicant may request a hearing before the board of zoning adjustment. The board shall hold a hearing under the procedures prescribed by Chapter 1-3, B.R.C. 1981, except that the notice of haring shall be mailed to the applicant and all property owners listed on the application by certified mail, return receipt requested, at least ten days in advance of such hearing. The applicant shall post a sign, furnished by the city, stating that the solar access exception application is pending. The sign shall be conspicuously posted on the applicant's lot for fifteen days prior to the scheduled hearing.

d) In order to grant an exception, the city manager, where no objection has been filed, or the board of zoning adjustment, where timely objection has been filed or where the city manager has made an adverse determination, must find that each of the following requirements have been met: 1) Because of basic solar access protection requirements and land use regulations, reasonable use cannot otherwise be made of the lot for which the exception is requested, the part of the adjoining lot or lots that the proposed structure would shade is inherently unsuitable as a site for a solar energy system, or any shading would not significantly reduce the solar potential of the protected lot, and such situations have not been created by the applicant; 2) Except for actions under paragraphs (4), (5), and (6), the exception would be minimal action and would afford relief in an economically feasible manner; 3) The exception would cause the least interference possible with basic solar access protection for other lots; 4) If the proposed structure is located in an historic district designated by the city council according to Section 10-13-3, B.R.C. 1981, and if it conformed with the requirements of this chapter, its roof design would be incompatible with the character of the development in the historic district; 5) If part of a proposed roof which is to be reconstructed or added to would be incompatible with the design of the remaining parts of the existing roof so as to detract materially from the character of the structure, provided that the roof otherwise conformed with the requirements of this chapter; 6) If the proposed interference with basic solar access protection would be due to a solar energy system to be installed, such system could not be feasibly located elsewhere on the applicant's lot; 7) If an existing solar system would be shaded as a result of the exception, the beneficiary of that system would nevertheless still be able to make reasonable use of it for its intended purpose; 8) The exception would not cause more than an insubstantial breach of solar access protected by permit, as defined in Subsection 9-8-12(b), "Exceptions", B.R.C. 1981; and 9) All other requirements for the issuance of an exception have been met. The applicant bears the burden of proof with respect to all issues of fact.

e) The board may grant exceptions subject to such terms and conditions as the board finds just and equitable to assist persons whose protected solar access is diminished by the exception. Such terms and conditions may include a requirement that the applicant for an exception take actions to remove obstructions or otherwise increase solar access for any person whose protected solar access is adversely affected by granting the exception.

f) Notwithstanding any other provisions of this section, if the applicant has a development application submitted for review that is to be heard by the planning board and that would require an exception, the planning board shall act in place of the board of zoning adjustment, with authority to grant exceptions concurrent with other actions on the application, pursuant to the procedures and criteria of this chapter.

Ordinance Nos. 4928 (1985); 5076 (1987).

9-8-15 Solar Siting Requirements

a) For purposes of insuring the potential for utilization of solar energy in the city, all planned unit developments and subdivisions shall be designed and constructed in compliance with the following solar siting requirements: 1) All residential units in Solar Access Areas I, II, and III have a roof surface that meets all of the following criteria: A) Is oriented within thirty degrees of a true east-west direction; B) Is flat or not sloped towards true north; C) Is physically and structurally capable of supporting at least 75 square feet of unshaded solar collectors for each individual dwelling unit in the building; and D) Has unimpeded solar access under either the provisions of this chapter or through easements, covenants, or other private agreements among affected landowners that the city manager finds are adequate to protect continued solar access for such roof surface. 2) Each residential unit in Solar Access Area I has an exterior wall surface that meets all of the following criteria: A) Is oriented within thirty degrees of a true east-west direction; B) Is located on the southernmost side of the unit; and C) Is immediately adjacent to a heated space. 3) Each nonresidential building with an anticipated hot water demand of one thousand or more gallons a day has a roof surface that meets all of the following criteria: A) Is flat or oriented within thirty degrees of a true east-west direction; B) Is physically and structurally capable of supporting a solar collector or collectors capable of providing at least one-half of the anticipated hot water needs of the building; and C) Has unimpeded solar access under either the provisions of this chapter or through easements, covenants, or other private agreements among affected landowners that the city manager finds are adequate to protect continued solar access for such roof surface.

b) Upon request of any applicant for a building permit or a subdivision or planned unit development approval, the approving body may waive such of the requirements of this subsection as it deems appropriate if it finds that any of the following criteria are met: 1) Any structure or structures subject to the requirements of this subsection are designed and intended to be unheated; 2) Topographic features, land slope, shading by objects, structures, or vegetation outside the control of the applicant, or the of surrounding development or circulation patterns when combined with the requirements of this subsection: A) Makes use of solar energy not feasible in some or all of the structures to be erected; B) Will result in a substantial decrease in the density of land use in the subdivision or planned unit development; C) Will result in an increase in transportation or other energy use that substantially outweighs the potential for increased solar energy use created by adherence to these requirements; or D) Will be inconsistent with the floodplain management requirements of Chapter 9-9, "Floodplain Regulations", B.R.C. 1981; 3) Substantial planning, design, or other preliminary expenditures have been incurred by the applicant prior to July 1, 1982, and adherence to the standards of this subsection would work an undue hardship on the applicant; or 4) The applicant's proposal incorporates the following additional energy resource and conservation option points in excess of the requirements of Section 9-3.3-24, "Resource Conservation", B.R.C. 1981: A) 2 points - to qualify for a waiver of the requirement of paragraph 9-8-15(a)(1); B) 3 points - to qualify for a waiver of the requirement of paragraph 9-8-15(a)(2); and C) The city manager finds that adequate protection for any solar energy systems to be installed is provided either under the provisions of this chapter, or through covenants, easements, or other agreements among affected landowners.

Ordinance Nos. 5076 (1987); 5562 (1993).

9-8-16 Authority to Issue Regulations

The city manager and the board of zoning adjustment are each authorized to adopt rules and regulations necessary in order to interpret or implement the provisions of this chapter that each administers.

Ordinance No. 5076 (1987).

Adopted by Ordinance No. 4676. 31-23-301(1), C.R.S. Setback requirements are set forth in Chapter 9-3, B.R.C. 1981. 

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