Update on Virginia Law: Covenants Restricting Solar Panels
By: Dan Blom
Solar Panel Provisions Find a New Home
Effective October 1st, please be aware that the statutory provisions restricting the authority of associations to prohibit solar panels (and other solar energy collection devices) found a new “home” in the Virginia Code. Specifically, the restrictions formerly in Virginia Code Sections 67-700 and 67-701 (“Covenants Restricting Solar Energy Collection Devices”) were moved to the Condominium Act and the Property Owners’ Association Act as new Sections 55.1-1951.1 and 55.1-1820.1, respectively. This relocation is the result of a bill adopted during one of 2021’s Special Sessions of the General Assembly. Of note, though, there were no substantive changes to these statutory restrictions – it was purely a relocation of existing statutory restrictions to a different part of the Virginia Code. We have posted an updated PDF version of our 2021 Virginia Statutes book on our firm’s website at: https://www.chadwickwashington.com/resource-center.
Solar Panel Covenants and Restrictions
In Virginia, community associations cannot prohibit solar energy collection devices (i.e., solar panels) from being installed on an owner’s property unless the association’s recorded declaration establishes such a prohibition (see Virginia Code Secs. 55.1-1820.1 and 55.1-1951.1). Under the statutes, if an association wants to completely ban solar panels from the community, the recorded declaration must expressly provide for such a ban. The statutes do not allow for a strict prohibition against solar panels on individually owned property by board-adopted rule or regulation.
“Reasonable” Restrictions on the Size, Place, and Manner of Placement Permitted under the Statute
Community associations can still restrict the size, place, and manner of placement of solar panels on individually owned property, even if the recorded declaration does not expressly address solar panels. The statutes unambiguously provide that community associations may establish reasonable restrictions concerning the size, place, and manner of placement of solar energy collection devices. Potential restrictions include board-adopted rules and regulations governing the visibility of the solar panels, the number and size of solar panels, screening requirements, and permissible locations, among others.
While associations have the right to regulate the size, place, and manner of placement of solar panels, such restrictions may be challenged as unreasonable under the applicable statute. Section 55.1-1820.1 of the Virginia Property Owners’ Association Act and Section 55.1-1951.1 of the Virginia Condominium Act set forth the same objective standard for what is considered “reasonable” for solar panel restrictions. This objective standard may significantly hinder a community association’s ability to regulate solar panels absent an express prohibition in the association’s recorded declaration.
Under both statutes, a restriction is not reasonable if application of the restriction to a particular proposed solar panel design either:
- increases the cost of installation of the solar energy collection device by five percent (5%) over the projected cost of the initially proposed installation, or
- reduces the energy production by the solar energy collection device by ten percent (10%) below the projected energy production of the initially proposed installation.
This objective standard of reasonableness may make it fairly easy for some homeowners to challenge certain restrictions. For example, restrictions that require solar panels to be installed only on the rear roof or prohibit solar panels on the front roof may be successfully challenged when only the front roof of a home receives sufficient sunlight. This may make enforcement of restrictions that would otherwise be considered reasonable (e.g., solar panels only permitted on the rear side of the lot/unit) quite difficult in certain circumstances.
Homeowner Challenges to Reasonableness of Restrictions
Significantly, the onus is on the homeowner to challenge the reasonableness of such restrictions, and associations still have the right to impose and enforce restrictions on the size, place, and manner of placement of solar panels absent a successful owner challenge. To successfully challenge the reasonableness of a solar device restriction in the Association’s rules and regulations, a homeowner must provide:
- Documentation prepared by an independent solar panel design specialist who is
- Certified by the North American Board of Certified Energy Practitioners, and
- Licensed in Virginia.
The documentation must be satisfactory to the association to show that the restriction is not reasonable according to the criteria discussed above (i.e., increases the cost of installation by five percent (5%) or reduces energy production by ten percent (10%)). An association can require an owner who is set on having solar panels installed in conflict with an association’s established rules and regulations to provide this documentation prior to installing the solar panels. Community associations interested in protecting their architectural standards should demand such documentation before capitulating to an owner request in these cases.
Prohibitions on Common Area and Common Elements
Community associations are still allowed to prohibit the installation of solar panels on common area and common element property, regardless of whether such prohibition is contained in the recorded declaration. Prohibiting owners from installing solar panels on common area and common element is generally advisable given the increased risk of liability to an association and the potential increase in insurance costs associated with allowing an owner to use the common area or common element to install solar panels. In addition, it may not be within the board’s authority to allow an owner to have exclusive use of part of the common elements or common area. Boards of directors should discuss the implications of installing solar panels on common area or common element property before approving any such requests or entering into any agreements with solar panel installation contractors.
Architectural Review Process
Another important consideration is that associations can still require owners to go through the regular architectural review process to ensure that the association’s restrictions and established processes are being followed. An association can still deny an application to install solar panels if the proposed design does not comply with the association’s covenants and architectural standards. Whether the association may be forced to accept a proposed solar panel installation hinges on (i) whether the recorded declaration expressly prohibits or restricts solar panels and (ii) whether the owner can supply the additional documentation from an NABCEP-certified solar panel design specialist showing that the association’s board-adopted restrictions are not reasonable under the applicable statute.
If there are any questions as to the applicability of the solar panel statute in any given situation, boards of directors should contact their association’s legal counsel to review the situation and discuss the association’s options.