Thursday, May 24, 2018
Business

Largo owner of solar-powered home fights neighbor's trees, gains little ground

LARGO — Last summer, Mike Zwalley put a $65,000 solar energy system on his roof. The system — a 30-gallon solar water heater and 44 black panels that convert sunlight into electricity — cut Zwalley's electric bill from $300 to $400 per month to $10 to $20.

About two months after Zwalley installed the system at his waterfront home off Indian Rocks Road, his next-door neighbor planted three cypress trees, each about 10 feet tall, along his property line.

Zwalley, a 58-year-old car salesman, was not happy. He had asked the neighbor, Wade Gibson, not to plant the trees there.

Zwalley found several websites that estimated the trees would grow to between 70 and 100 feet. At that height, they could cast shade on Zwalley's solar panels.

Gibson told Zwalley that he did not think the trees would get that big, but if they did, Gibson would take care of it, according to Zwalley.

That answer wasn't good enough for Zwalley. He called city management. He called state legislators. He called legal experts. They all gave him different forms of the same answer: In Florida, the law is not on your side.

It would be in a few other states, though.

As energy costs continue to rise, legal experts say courts should expect more battles over solar panels and a property owner's rights, or lack thereof, to sunlight.

"We're going to see more and more, and if it's on your rooftop or in your back yard, you're going to be concerned about your neighbor growing trees," said Scott Anders, director of the Energy Policy Initiatives Center in San Diego. "And growing trees is a good thing, right?"

• • •

If Zwalley lived in any of the following places, he would have a better shot at legally forcing Gibson to remove the trees: Wisconsin, California and Ashland, Ore.

More than 30 states offer some legal protections to people who own solar energy systems, but few have laws that would help Zwalley. California law protects solar panels from neighboring trees if the panels were there first. Wisconsin's law is similar.

In Ashland, Ore., solar panel owners can apply for a solar access permit. If the city approves a permit, it sends notices to nearby property owners, telling them to keep their vegetation from shading their neighbor's panels.

But Zwalley lives in Largo, and in the Sunshine State, property owners don't have a right to sunlight. Florida law protects solar panels from homeowners associations (they can't bar systems for aesthetic reasons) and from local laws. (If a city or a county's tree removal policies are too expensive or stringent, legal experts say they can be lifted for someone who wants to cut trees for solar panels.)

Zwalley has gone to a few local state lawmakers, including Rep. Jim Frishe, R-St. Petersburg, and Sen. Dennis Jones, R-Seminole. Neither offered to sponsor a law like California's or Wisconsin's. Largo City Commissioner Curtis Holmes wanted to help, but his interest waned when City Attorney Alan Zimmet said a city law could prompt affected tree owners to sue Largo.

"We are a state very oriented toward property owners' rights," Zimmet said.

If Gibson's trees grow to shade Zwalley's solar panels, Zwalley could sue Gibson in civil court under nuisance laws. A similar argument was made by the owners of Miami Beach's Eden Roc Hotel in the 1950s when the neighboring Fontainebleau Hotel proposed a 14-story addition. The Eden Roc sued, arguing the addition would shade its cabana, swimming pool and beach.

The Eden Roc lost, though. Florida courts have been reluctant to rule against property owners exercising legal rights on their property, according to Stetson law professor Paul Boudreaux. If Zwalley sued Gibson to force the trees' removal, Boudreaux said, he'd face an "uphill battle."

"It's really an area of conflict that I think is going to be on the rise," he said. "We don't have a good workable solution in the law yet."

• • •

Zwalley is not a man who dips his toes in the water when he picks up a hobby. He likes animals, and owns a lot of them: two blue-and-gold macaws (Mary Kate and Ashley), two sulcata tortoises (Arnold and Palmer), two leopard tortoises (Flash and Gordon), and seven cats.

So it's not surprising his interest in solar power has turned into a crusade to change Florida law. The crusade hasn't picked up much momentum, though. Unless the law changes, all Zwalley can do is hope his neighbor is right, and the trees won't grow that tall.

"Basically, I'm screwed," Zwalley said.

Gibson just wanted some shade. The cypress trees he planted replaced a larger oak tree on Zwalley's property that had shaded Gibson's garage and driveway. Zwalley had the oak tree removed.

"I've tried to be as nice as I can, but it's my yard, and they're my trees, and the way the law is, I have the right to plant trees," said Gibson, 53, an architectural project manager.

The Gibson and Zwalley homes are comically close for neighbors locked in a disagreement. Their mailboxes sprout from the same post. Gibson rarely speaks with Zwalley, but he hopes the relationship improves, even though the trees will stay. "I'd rather be friends than enemies," Gibson said. "I do have to live next to the man."

Will Hobson can be reached at (727) 445-4167 or [email protected]

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