A scarlet hummingbird pauses between the blossoms of a cherry tree in Patrick O’Brien’s front yard before it flits past several plum trees, grape vines and red cedar trees.

More than 6 feet overhead, a solar panel array sits atop four wooden piers over the Kenmore resident’s driveway.

“I like to keep it green,” said O’Brien, who has a degree in alternative energy from Western Washington University and is a former board member of Solar Washington. He put up his 20-panel solar array three years ago. But after a long battle with the city of Kenmore, officials recently ordered him to take the panels down during a recent appeal.

“I like to have green energy and I’m shaking my head at anybody doing what they’re doing,” said O’Brien of the city’s ruling.

Challenging the city’s decision, he filed an appeal in King County Superior Court in February. He claims the city erred in its ruling because the city does not have an ordinance that deals with the use and installation of solar panels.

His solar panels became an issue with the city in 2010 when the city cited him for failing to obtain a building permit to install the solar panels to a structure he built.

But it was in 2007 when a neighbor who he was at odds with over a retaining wall in his backyard made a complaint to the city. He said the city waited several years to investigate the issue he believes because he became outspoken about several city issues.

As a member of People for an Environmentally Responsible Kenmore (PERK), he has spoken out against the Kenmore Industrial Park that his home overlooks.

“When it gets going, it’s noxious,” he said of the plant. “So, yeah, I painted a a big circle on myself.”

A code compliance officer came out to his house in 2010 and ended up citing him for eight violations, including his solar panels, the retaining wall and blackberry bushes that were in the city’s right-of-way.

The city has since dropped all of the code violations except for the retaining wall and the solar panels, which are both subject to the recent litigation. According to the city’s notice of violation, the solar panel “roof” poses a threat to the public’s safety.

However, O’Brien says the structure is sturdy and it is not a roof.

“In three attempts, he tried to call that a roof, which it clearly isn’t,” he said of the city’s code compliance officer Bryan Hampson. “I said, ‘how many roofs have one-inch gaps in them, how many roofs make electricity, how many roofs are built on aircraft grade aluminum designed to withstand 300 mile an hour winds?’”

The structure consists of wooden piers that he built 5 feet into the ground and is reinforced with rebar cages and concrete.

“I’m telling you, go up there and shake that thing, it’s not going anywhere. That is stout,” he said.

Before O’Brien installed the support structure and solar panels in 2010, he said he obtained a permit for the structure from the city. He also obtained the necessary electrical permits from the Washington State Department of Labor and Industries and Puget Sound Energy inspected the structure.

O’Brien’s solar panel array is treated by the state of Washington and Puget Sound Energy as a utility and he sells electricity to the company.

“I get about 18 to 19 cents a kilowatt hour for the electricity I make,” he said. “Right now I’m making about $650 a year of electricity. That’s what the panels are yielding. But I’m also using that energy too, so it’s on top of what I use.”

Rather than put the solar panels on the roof of his home, he placed them on the structure to allow him more capacity to add up to 20 more panels in the future. He also placed the structure over his driveway to limit his footprint of impermeable surfaces, according to city guidelines.

The city cited him for affixing solar panels to a permitted structure without obtaining a permit. However, he said the city currently does not have any ordinances in place in regards to solar panel installations.

“I was told by the city inspector Bryan Hampson that [the addition of solar panels] could be unsafe,” he noted.

City officials say the panels “alter the loads imposed on the structure,” according to a January 2011 letter to O’Brien from the city.

“The structure was not structurally designed to carry the additional live loads caused by the solar panels on the structure (wind and snow),” the letter continues, citing a city code that states the addition of the panels constitutes an “alteration” to the structure. The code states that any owner who intends to alter a structure must obtain a building permit.

But O’Brien argues that there are at least a dozen other solar installations throughout the city that weren’t required to get a permit. One of those solar panel arrays is on the roof of a home about two blocks away from him.

“So it’s an unfair application of a non-existent law,” he noted.

Rosemary Larson, an attorney with the law firm Inslee Best, which is representing the city of Kenmore in the King County Superior Court appeal, spoke on behalf of city officials.

She said some residents are required to obtain a building permit to install solar panels “to the extent a building permit is required,” said Larson, noting that it would depend on the structure. “So it’s not permitting the energy generation aspects – that is permitted through the state. [The process] does require a building permit if solar

panels will be put on top of a structure.”

During the appeal before the city, the hearing examiner ruled that O’Brien must take down his solar panels, which he has since taken down. He was not required to take down the structure itself.

Officials said he must also obtain a building permit from the city before the panels go back up.

“Then I have to go through this permitting process that’s non-existent – there’s no punch list for it,” said O’Brien.

The city also ordered him to pay a $1,000 fine and said if he didn’t take down the solar panels, he would be charged a fine of $200 per day.

In his court appeal, he seeks to reverse the city’s decision to have him take down his solar panels and obtain a building permit. He also seeks an award of attorneys’ fees and any further relief the court deems necessary.

O’Brien contends that he satisfied all state requirements for solar panel installation. In addition, the city charges permit fees based on the value of materials and labor used for the installation. However, solar installations of this nature are exempt from taxation, according to the lawsuit, and O’Brien argues the permit fees for this installation would constitute a tax.

“You can’t tax green energy in the state of Washington,” he said. “This could be a huge precedent because any county or city official could roll into wind, biomass, ethanol, solar, and say, ‘hey, I have a Mr. Green Jeans approach to billing you for my jurisdiction and I feel like charging you ‘X’ on this solely based on my understanding of what I think it costs for that equipment. And that’s basically what we’re talking about here.”

He said this issue is about local jurisdictions “taking control” of green energy.

“To leave it in the hands of neophytes with little to no training and an incentive to make it a revenue source, that’s not what energy independence is all about and it certainly doesn’t do anything positive for government, the people or the industry in this state if we allow that to happen.”