Solar Panels – What Can Be Done?

By Brad M. Barna

 

Solar panels are becoming more and more favored under the law, meaning that legislatures, both state and Federal, have seen fit to carve out special treatment to encourage their use. Special treatment for a favored activity typically comes in the form of tax breaks and special legal protections. These financial incentives have worked exactly as intended and resulted in a growing demand for homeowners to install these devices. As a result, our firm is more and more frequently asked by managers and association presidents: “what can we, as a community, do about these solar panels?” After all, a major role of most community associations is to regulate the outside appearance of lots, and solar panels can have a huge impact on the aesthetics of a home. One needs to look no further than a Google-image search for “ugly solar panels” to understand these concerns. After a quick perusal of those resulting images, even the staunchest environmentalist might be forced to admit that the aesthetics of solar panels lag well behind the technology. So, again, the question is, what can be done?

Adopted in 2014, Virginia Code Section 67-701(A), provides, in part, that:

“[n]o community association shall prohibit an owner from installing a solar energy collection device on that owner’s property unless the recorded declaration for that community association establishes such a prohibition. However, a community association may establish reasonable restrictions concerning the size, place, and manner of placement of such solar energy collection devices on property designated and intended for individual ownership and use.”

Accordingly, under Virginia law, a community association cannot ban the installation and use of solar panels on an owner’s property (and other “solar energy collection devices”) unless the recorded declaration provides for such a prohibition. In our experience, very few recorded documents mention solar panels, much less prohibit them. More recent declarations may address the matter; however, if you’re not a community built within the last five to ten years, then your association is likely left only with the power to “establish reasonable restrictions concerning the size, place, and manner of placement” of solar panels. What is “reasonable” is left up to the courts to interpret. So far, there are no reported court decisions in Virginia that have addressed the issue of what constitutes a “reasonable restriction” as it pertains to solar panels.

Some organizations have taken it upon themselves to issue guidelines on what might be considered reasonable restrictions under Virginia law. The Maryland, DC, and Virginia Solar Energy Industries Association (MDV-SEIA) is one such organization, and has issued a popular guide on the matter. MDV-SEIA posits that reasonable restrictions are those that 1) have some rational basis; 2) do not prevent installation or make it unfeasible; 3) do not create excessive additional expense; and 4) are not otherwise unduly burdensome. Of course, these suggestions come from an organization that is actively seeking to increase the use of solar panels in Virginia.  What MDV-SEIA deems reasonable may not be the same as the courts. Important to note, MDV-SEIA does agree that approval from community association architectural committees (or similar entities) is required (if required by the recorded documents) prior to proceeding with installation to ensure that all reasonable restrictions are met. We certainly agree with MDV-SEIA on that point.

However, MDV-SEIA has also taken a position that regulations based on aesthetics are automatically not reasonable. That position is too extreme, especially given that one of the primary purposes of associations is to regulate the appearance of the community and help protect property values.   Virginia’s current Attorney General, Mark Herring, was asked to opine on the legislation’s effect on already-existing rules and regulations of community associations. Attorney General Herring stated in that advisory opinion that “community associations still retain unrestricted authority to impose reasonable restrictions on the size, location, and manner of placement of solar panels on private property.” Following that rationale, for instance, restrictions relating to the size, place, and manner of placement do not become unreasonable simply because they are motivated by the aesthetics of the solar panels.

So, again, what can you do as a Virginia community association with regard to solar panels? At a minimum, we suggest that you can create reasonable restrictions regarding: (1) size (e.g., limit the size to that necessary to power a home of that size), (2) location (e.g., not visible from the street, especially if their efficiency is not significantly impacted), and 3) manner of placement (e.g., panels must be flush and parallel with the roof and wiring and components concealed). Furthermore, community associations can still require that the owner go through the architectural review process to ensure that the association’s reasonable restrictions are being followed. We suspect that solar panels will continue to become more and more popular as policies encouraging their use are enacted, and as a result, this topic will certainly be one that more and more community associations are faced with. Until more guidance is offered from courts on what constitutes “reasonable restrictions,” we recommend consulting with legal counsel to determine if, and how, your association should address solar panels. As always, Chadwick, Washington, Moriarty, Elmore, & Bunn is happy to assist.