(A) Application and Fee.
(1) Request for a permit for solar rights is initiated by application to the Mayor by the owner or possessor of real property on which a related solar collector is located. An application shall be accompanied by two copies of the following items:
(a) Plans for the proposed solar energy system, including the solar collector and any heat storage and distribution facilities; plans shall include calculations and sum total as to collection and beneficial use of heat, expressed in BTUs and solar fraction.
(b) Plans showing the following:
1. The boundaries of all relevant parcels of land which either contain or are proposed to contain a solar collector or are proposed to be burdened by the solar right, i.e., the parcels proposed for the dominant and servient tenements;
2. The owners and the possessors of the real property for which parcel boundaries are shown;
3. Where relevant to the solar right requested, the topography of the land, and the location of structures, fixtures, and vegetation existent or known by the applicant to be planned; the horizontal and vertical dimensions of such structures, fixtures, and vegetation; and
4. A spatial and temporal definition of the solar rights requested.
(2) Request to void in whole or in part a permit for solar rights is initiated by application to the Mayor by the owner or possessor of real property with a dominant or servient tenement defined by the permit. An application shall identify the permit which is requested to be voided.
(3) An application for approving or voiding a permit for solar rights relating to the same solar collector may not be considered within 12 months of the date of final city action on a prior application for the same action.
(4) Fee.
(a) An application fee of $50 shall accompany each application relating to establishing a solar right.
(b) An application fee of $40 shall accompany each application to void a solar right.
(c) When an application is withdrawn after it has been advertised for public hearing, the application fee shall not be refunded. When an application is withdrawn before such advertisement all but $10 of the fee shall be refunded.
(d) If the city is the applicant or agent, the application fee is waived.
(B) Hearing and Decision.
(1) A duly filed application for a permit for solar rights shall be decided, upon the record after a hearing, by the Zoning Hearing Examiner.
(2) At least 15 days in advance of a hearing the Mayor shall give notice of the public hearing by certified mail, return receipt requested, to the following persons:
(a) The applicant;
(b) The applicant's agent; and
(c) The owners and possessors of involved real property, as submitted by the applicant per division (A)(1)(b)1. and 2. of this section.
(3) The notice shall contain the following information:
(a) The time and place of hearing;
(b) A statement describing location of the property and the subject matter of the hearing; and
(c) How additional information can be obtained.
(4) Prior to hearing, the Mayor may request city departments and other agencies which he judges would be interested to comment on the application. Comments received shall be part of the hearing record.
(5) A written statement giving the name and address of the person making the appearance, signed by him or by his agent, and filed with the Zoning Hearing Examiner, constitutes appearance of record. The parties to a hearing shall be any of the following persons who has entered an appearance of record either prior to commencement of the hearing or when permitted by the Zoning Hearing Examiner:
(a) A person entitled to notice under division (2) above; and
(b) Any unit of government which has jurisdiction over the site proposed for a permit.
(6) A party shall be afforded an opportunity to present evidence and argument and to question witnesses on all relevant issues, but the Zoning Hearing Examiner may impose reasonable limitations on the number of witnesses heard, and on the nature and length of their testimony and questioning. The Zoning Hearing Examiner may call witnesses and introduce papers on his own volition.
(7) The Mayor shall make a full record of the hearing by sound recording; any person shall have the opportunity to listen to, copy, or transcribe the recording at any reasonable time at the office of the Mayor. Summary minutes shall be kept of all Zoning Hearing Examiner’s hearings, and they shall be kept available for public inspection.
(8) Prior to making a decision, the Zoning Hearing Examiner shall neither:
(a) Communicate, directly or indirectly, with any party or his representatives in connection with the merits of any issue involved except upon notice and opportunity for all parties to participate;
(b) Use nor rely upon any communication, reports, staff memoranda, or other materials prepared in connection with the particular case unless made a part of the record; nor
(c) Inspect the site with any party or his representative unless all parties are given an opportunity to be present.
(9) An advertised hearing may be continued to a time and place announced at the hearing without further mailed notice.
(10) The Zoning Hearing Examiner shall act on an application within 15 days of the conclusion of the hearing. He shall prepare a written decision which includes the key findings of fact. This report shall be made part of the record. Each material finding shall be supported by substantial evidence or, if it is noted on the record, by a personal knowledge of or inspection of the hearing officer.
(11) The Zoning Hearing Examiner shall, when approving a permit for solar rights, limit the solar rights spatially and temporally as necessary to meet the stated criteria for granting such permits.
(12) When any permit for solar rights is approved or denied, as provided in this division (12), written notification of the action, indicating the extent of the solar rights granted, shall be sent within one day of the action to the applicant's agent and all persons who were proposed for dominant and servient tenements by the applicant.
(C) Criteria for deciding requests for permits are as follows:
(1) A permit for solar rights shall be approved if and only if, in the circumstances of the particular case, the solar collector and related solar rights created will be beneficially used, and in addition the solar rights granted:
(a) Will not unreasonably interfere with the enjoyment of other sites, either the enjoyment of present use or prospective use as indicated by zoning or adopted plans; or
(b) Will be of more value to the public welfare than the precluded enjoyment of present use or prospective use of other sites which would be precluded by the permit. For the purpose of this division (b), PUBLIC WELFARE means the conservation of scarce fuels and the allowance of an undertaking which would not otherwise be viable.
(2) The beneficial use of a solar right which would permit radiation from the sun to impinge directly on the solar collector before 9:00 a.m. or after 3:00 p.m., Mountain Standard Time, on a winter solstice day or before 9:00 a.m. or after 5:00 p.m., Mountain Daylight Savings Time, on a summer solstice day is de minimus and shall never be protected by a permit for solar rights. This division (2) shall not be construed to mean that an applicant has a right to a permit for solar rights at any other time of day.
(3) There is a rebuttable presumption that solar rights which do not limit the height of potential buildings more than the normally permissive height regulations of the Integrated Development Ordinance will not unreasonably interfere with the enjoyment of the other sites. This is true even though the solar rights inhibit the location of objects not limited by those height regulations.
(D) A permit for solar rights which is approved is voidable in whole or in part if and only if:
(1) Two years after the date approval vested, the rights and privileges in question have never been utilized; or
(2) The rights and privileges in question have ceased to be beneficially used for a continuous period of two years or more; or
(3) The owner of the solar right, i.e., the dominant tenement, requests that the permit be voided;
(4) A decision on whether to void a permit for solar rights shall be made by the Zoning Hearing Examiner in a process consistent with division (B) of this section;
(5) If a permit for solar rights is voided, the related solar right is destroyed.
(E) The exclusive remedy for parties dissatisfied with the action of the Zoning Hearing Examiner shall be filing of a Petition for Writ of Certiorari. The petition for review shall be limited to the record made on the public hearing held pursuant to this article.
('74 Code, § 7-2-7) (Ord. 80- 1981; Am. Ord. 31-2007; Am. Ord. 2017-025; Am. Ord. 2023-015)