Limit Solar Restrictions in HOAs and/or CC&Rs
Caragh McMaster, Tegan Jarchow (authors), Darcie White, Sara Bronin, & Jonathan Rosenbloom (editors)INTRODUCTION
Covenants, Conditions, and Restrictions (CC&Rs) are private-sector regulations governing what homeowners can do with their land.[1] An important characteristic of CC&Rs is that they run with the land, meaning they stay in place upon sale of a property.[2] CC&Rs are often utilized by Homeowners Associations (HOAs), which are often the outcrop of subdivided properties.[3] CC&Rs outline the rights and obligations among homeowners and between homeowners and HOAs. They often restrict uses, require insurance, and describe other legal obligations.[4] In doing some, some CC&Rs include restrictions prohibiting or severely limiting solar panel installation.[5] These CC&Rs are justified on the grounds that they promote uniformity and aesthetic standards within the community.[6] While it is possible for CC&Rs to be amended, this often requires a supermajority, making change difficult, at times.[7]
With the increased push for green energy, the possibility of prohibiting CC&R solar restrictions is becoming a viable option.[8] In 2010, the State of California amended its Solar Rights Act of 1978 stating “[a]ny covenant, restriction, or condition . . . that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable.”[9] Despite forty states adopting solar access statutes, only twenty-one of those states expressly mention CC&Rs similar to the California statute.[10] Proponents of solar rights in other states have had to rely on local governments to prohibit CC&R solar restrictions.[11]
Ordinances prohibiting CC&R restrictions should define the scope of the ordinance.[12] The scope may vary and may include preventing the CC&Rs from banning solar installation outright,[13] proscribing “unduly restrictive” CC&Rs, and allowing CC&R restrictions so long as they are “reasonable restrictions” on solar installation. Local governments should be conscious that some language may leave significant discretion to HOAs and courts to interpret the provisions.[14]
Local ordinances may seek to narrow the standard or explicitly define examples of reasonable restrictions.[15] They may also include prohibiting any CC&Rs from having a negative impact on the cost or performance of a solar system.[16] CC&Rs that have such an impact may include restrictions on the system’s size, orientation, and tilt,[17] and restrictions on aesthetic grounds.[18] Some local governments have explicitly stated their intent in passing the ordinances as preserving private solar energy production, so as to help guide judicial interpretation of the ordinance.[19] Other local governments have prohibited HOAs from taking too much time in issuing a permit for a homeowner’s solar installation. Such ordinances provide a time frame for approval.[20]
EFFECTS
Homeowners will only invest in the expense of solar panels if they have “legally recognized protection to install a solar system . . .”[21] Prohibiting CC&Rs from restricting solar energy systems would give homeowners surety and encourage solar development. Notwithstanding many states’ laws protecting homeowners from CC&Rs prohibiting solar installation, courts generally rely on a “reasonableness” test to settle disputes over CC&R provisions, which often defer to HOA interpretations.[22] Such a standard is relatively low and provides homeowners with minimum security. Ordinances prohibiting CC&Rs can encourage homeowners to move forward with solar installations and help mitigate greenhouse gas emissions.[23]
Expanding solar energy systems can have a significant environmental impact. More than 25 million housing units are governed by HOAs with over half of them having useable residential solar energy systems.[24] A five percent increase of those housing units without solar could generate 3.3 gigawatts of clean energy, roughly equivalent to taking 1.1 million vehicles off of the roads.[25]
EXAMPLES
Walker, MN
Walker, MN addresses CC&Rs that block solar energy systems by providing that “[n]o homeowners' agreement, covenant, common interest community, or other contract between multiple property owners within a subdivision of Walker shall restrict or limit solar systems to a greater extent than Walker's renewable energy ordinance.”[26] The ordinance states that the City encourages the protection of solar rights in new subdivisions, and that existing solar energy system installations are to be protected, consistent with Minnesota state law.[27]
To view the provision, see Walker, MN, Code of Ordinances § 109-254(d) (2016).
Laramie, WY
Laramie, WY’s code of ordinances states that “[s]olar energy systems shall be a permitted use in all zoning districts” subject to certain requirements outlined later in the code. Most relevant to CC&Rs, the code states that “[p]rivate restrictions on solar energy systems, such as homeowner's association covenants or restrictions, shall not be permitted.”[28]
To view the provision, see Laramie, WY, Code of Ordinances § 15.14.030(A)(1)(b) (2017).
ADDITIONAL EXAMPLES
Kingsville, TX, Code of Ordinances § 15-6-180(A) (2014) (providing that no HOA, CC&R, or contract between multiple property owners within a subdivision shall restrict the installation of solar systems more stringently than the City’s codified solar regulations).
Oglesby, IL, Code of Ordinances § 14.03.020(J)(6) (current through 2019) (providing that no HOA, CC&R or contract between property owners within a subdivision shall prohibit or restrict solar energy system installation; further noting that no HOA energy policy statement shall be more restrictive than Oglesby’s energy standards).
East Peoria, IL, Code of Ordinances § 4-19-9(h) (2018) (preventing CC&Rs, HOAs or private contracts between “multiple property owners within a subdivision” from prohibiting or restricting solar energy system installation).
Rowlett, TX, Code of Ordinances § 77-605(H)(4) (2009) (protecting both solar energy systems and wind energy systems from being prohibited by any HOAs, CC&Rs, or “other deed restriction applicable within residential subdivisions”).
San Rafael, CA, Code of Ordinances § 14.16.307(A)(4) (2014) (providing that CC&Rs “cannot prohibit installation of solar equipment on buildings”).
CITATIONS
[1] Thomas Starrs et al., Bringing Solar Energy to the Planned Community: A Handbook on Rooftop Solar Systems and Private Land Use Restrictions 12, https://perma.cc/F4K6-VZC9 (last visited Jun. 12, 2019).
[2] Id.
[3] Evan J. Rosenthal, Letting the Sunshine in: Protecting Residential Access to Solar Energy in Common Interest Developments, 40 Fla. St. U. L. Rev. 995, 1006 (2013).
[4] See Starrs et al., supra note 1, at 12.
[5] SEIA, Solar Access Rights, https://perma.cc/H2Z2-JLGT (last visited Jun. 13, 2018).
[6] Id.
[7] Rosenthal, supra note 3, at 1024.
[8] SEIA, supra note 5.
[9] Cal. Civ. Code § 714 (2019), https://perma.cc/U725-DAYX (clarifying that “governing documents” means the declaration and any other documents, such as bylaws, operating rules, articles of incorporation, or articles of association, which govern the operation of a common interest development or association).
[10] Rosenthal, supra note 3, at 1006.
[11] See id.
[12] Id. at 1019.
[13] Brian Ross, Solar Energy Standards - Urban Communities: Updated Model Ordinances for Sustainable Development 9 (Feb., 2014), https://perma.cc/YQM4-SKA3.
[14] Id. at 1018-19
[15] Id. at 1019.
[16] The Solar Found., A Beautiful Day in the Neighborhood: Encouraging Solar Development through Community Association Policies and Practices 13, https://perma.cc/5SE4-T9HV (last visited Jun. 12, 2019).
[17] Id. at 14-16.
[18] Id. at 1020.
[19] Id. at 1021.
[20] The Solar Found., supra note 16, at 9.
[21] Joshua M. Duke & Benjamin Attia, Negotiated Solar Rights Conflict Resolution: A Comparative Institutional Analysis of Public and Private Processes, 22 J. Envtl. & Sustainability L. 1, 2 (2015), https://perma.cc/ZB28-4U2J.
[22] Rosenthal, supra note 3, at 999.
[23] Colleen McCann Kettles, A Comprehensive Review of Solar Access Law in the United States Suggested Standards for a Model Statue and Ordinance, Solar Am. Bd. for Codes and Standards 4 (Oct., 2008), https://perma.cc/4642-7ZVT.
[24] The Solar Found., supra note 16, at 3.
[25] Id.
[26] See Walker, MN, Code of Ordinances § 109-254(d) (2016).
[27] Id. § 109-254(e).
[28] Laramie, WY, Code of Ordinances § 15.14.030(1)(b) (2017).