TODAY’S STUDY: CLEARING THE WAY FOR SOLAR

A Beautiful Day in the Neighborhood; Encouraging Solar Development through Community Association Policies and Processes

Philip Haddix, June 2013 (The Solar Foundation)

Abstract

Community associations play a vital role in protecting a homeowner’s investment in their residence and property. In the case of solar energy, association covenants, conditions, and restrictions (CC&Rs) and architectural guidelines can dissuade some owners from pursuing an opportunity to enhance the value of their property while reaping important environmental benefits. Recognizing this, many state legislatures have enacted “solar rights” policies limiting associations’ ability to prohibit or restrict solar energy devices. Often, these state-level provisions are a necessary, but not in themselves sufficient, means of ensuring homeowners have access to solar energy and its benefits. Fortunately, there are a number of relatively simple actions an association can take to encourage solar development without further ceding their authority to impose and enforce rules designed to protect the value and quality of the communities they govern. This guide, written for association boards of directors and architectural review committees, discusses the advantages of solar energy and examines the elements of state solar rights provisions designed to protect homeowner access to these benefits. It then presents a number of recommendations associations can use to help bring solar to their communities, including: (1) improving processes and rules through understanding the technical aspects of solar energy and how restrictions can negatively affect a system’s performance; (2) improving the clarity and specificity of association solar guidelines and making them easily accessible to homeowners, and; (3) convening stakeholder meetings to produce practical guidelines that accurately reflect the needs and values of the community.

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I. Introduction

Community associations play a vital role in protecting a homeowner’s investment in their residence and property. Through established rules and guidelines governing whether and how certain activities can take place in the communities they manage, associations work to protect and enhance property values and ensure residents are able to enjoy a high quality of life. In the case of solar energy, however, the covenants, conditions, and restrictions (CC&Rs) limiting residents’ rights of ownership can have the opposite effect – depriving homeowners of an opportunity to enhance the value of their property, preventing them from fully embracing a clean energy technology that helps protect human health and the environment, and negatively impacting the economic value of their investment in an alternative means of meeting their energy demand. Given this, several states have adopted measures restricting or clarifying the restrictions associations may place on solar energy systems in their communities. On their own, these state laws (or “solar rights provisions”) are often not sufficient for striking the balance between association and homeowner interests required to allow solar energy to flourish in these communities. Fortunately, there are a few relatively simple actions associations can take to help facilitate solar development while allowing them to continue to regulate activities that might threaten the value or enjoyment of the communities they govern. This guide provides communities with straightforward recommendations and resources designed to reduce association-based barriers to solar development. Because state solar rights provisions (where they apply) influence which actions an association is permitted to take, a significant portion of this guide is dedicated to examining, classifying, and understanding these laws. Before delving into these topics, however, it is important to understand the basics of solar energy and the benefits it can bring.

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II. Solar Energy: Basics, Benefits, and Barriers

The Opportunity

Association-governed communities hold immense potential for solar energy development. According to the Community Associations Institute, associations represent over 25 million housing units. Of these, approximately 13 million (52%) are structures most suitable for residential solar installations – such as townhouses and homes in gated communities or subdivisions (i.e., properties governed by homeowners associations as opposed to condominiums or cooperatives).2 If only 5% of these homes were to invest in an average-sized residential solar energy system, it would add 3.3 gigawatts (GW) of clean power capacity to the electric grid – as much solar energy as was added in the entire U.S. in 2012.3 This figure represents an annual reduction in carbon dioxide (CO2) emissions of over 6 million tons,4or the equivalent of taking over 1.1 million vehicles off the road.5

Photovoltaic (PV) arrays are by far the most common form of residential solar installation. These systems collect photons from the sun and convert the energy they contain into useful solar electricity. The fundamental unit of a PV array is a solar cell, composed primarily of a semiconductor material, where the conversion of light to electricity takes place. As the output of these cells is relatively small they are packaged together into larger units called modules (or panels), which in turn are combined to form PV arrays. Apart from the PV modules, there are a number of “balance of system” components required for the array to function – including inverters, mounting or racking equipment, disconnect switches, combiner boxes, and wires and connectors.i Figure 1 below provides a basic illustration of how these components fit together to form a residential solar electric system.

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The Benefits of Solar Energy

Solar energy, like many renewable energy technologies, is highly regarded for its ability to produce electricity with limited environmental impacts. A national poll, conducted in fall 2012, showed that over 90% of Americans support solar energy development.6 Despite this strong level of support, many may not be fully aware of the broad range of benefits solar energy provides or that residential solar energy is a highly advantageous application of the technology…

Association Motivations to Restrict Solar

Despite the value of these benefits and the availability of the technological means to obtain them, solar energy continues to face significant barriers (both public and private) at the local level. In community and homeowners associations, these barriers typically take the form of CC&Rs and guidelines limiting solar development. It is important to keep in mind, however, that an association is not necessarily acting arbitrarily in developing and enforcing these restrictions. In fact, there are a number of legitimate reasons an association would want to restrict solar energy development in the communities they govern. As later sections of this guide will show, it is possible for a solar-savvy association to develop carefully crafted and clearly worded guidelines that promote solar energy development while protecting other community interests, including:

Community Aesthetics

Planned communities are often designed with a particular aesthetic theme or appeal in mind. Subsequent development or property improvements that are incongruous with established community aesthetics can diminish property values or threaten owners’ ability to use and enjoy their property. Prioritizing aesthetics over solar development often means restricting a solar energy system’s size, placement, tilt, or orientation (or all of these). As discussed in Section IV of this guide, such restrictions can have a negative impact on a solar array’s electricity production, which in turn reduces the economic value of the solar investment.

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Tree Preservation and Planting

Tree coverage can not only contribute to a community’s aesthetic appeal, but can provide important environmental and economic benefits as well. Trees absorb carbon dioxide (CO2), a harmful greenhouse gas, and help trap other pollutants that can threaten human health. These and other plants help manage stormwater runoff and reduce soil erosion. Shade produced by trees can increase comfort both inside the home (reducing the amount of sunlight entering through windows – thereby helping to manage cooling demands) and outdoors. Unfortunately, shade from trees can block a solar collector’s access to sunlight and impair its ability to function as designed.

Health and Safety

Associations may also wish to control the placement of solar energy systems in order to ensure residents’ health and safety. Fortunately, industry certifications, product safety standards, and local and national codes governing electrical and structural work have greatly reduced the need for associations to assume this responsibility.

III. Solar Rights Provisions

The economic feasibility of a homeowner’s investment in solar energy hinges on the amount of solar electricity a system is able to produce, which in turn depends upon the amount of solar radiation (i.e., sunlight) the system collects. As noted above, the control some CC&Rs give to associations over whether and how a solar energy system can be installed can negatively impact a system’s access to sunlight and result in a significant reduction in the value of the homeowner’s investment. Recognizing this, many states have chosen to ensure solar access through legislation containing either a provision protecting solar rights –the ability of a homeowner to install a solar energy system on his or her property – or allowing for the creation of solar easements, which are legally binding agreements that protect a system from future obstructions.

Solar rights provisions target public and/or private prohibitions or restrictions on the installation of solar energy systems, and are therefore the aspect of solar access law of greatest interest (or concern) to community and homeowners associations. As of the writing of this guide, 22 states have adopted solar rights provisions that expressly limit (to varying degrees) associations’ abilities to exercise control over solar energy installations through their CC&Rs.

Common Elements

Solar rights provisions pertaining to community or homeowners associations vary significantly between states. Some add only a few lines of broad language to existing state statutes, while others are much more specific on which policies or practices are permissible and on the roles and responsibilities of the parties to which the laws apply. Despite this diversity, a review of current solar rights provisions reveals a number of common elements that help protect citizens’ rights to go solar.

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Statement of Legislative Intent…Voiding Prohibitions Against Solar…Allowable Restrictions…Applicability to Structures…Awarding of Attorney’s Fees…Grandfathering Clause…HOA Policy Creation Mandate…No Avoidance or Delay…Provisions for Ground Mounted Systems…

Typology of Solar Rights Provisions…Type I: No Limits on Restrictions…Type II: Undefined “Reasonable” Restrictions…Type III: Qualified “Reasonable” Restrictions…Type IV: Quantified Restrictions…

How Associations Can Facilitate Solar Development…Advance Community Education on Solar Energy…Array Size…Array Orientation...Array Tilt…System Shading…Clearly Define what is Permissible…Community Aesthetics…Tree Preservation and Planting…Health and Safety…

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Coproduce a Lasting Solar Solution

While borrowing or adapting language from existing examples of solar guidelines will suffice for some associations, others may have difficulty in identifying current standards that both conform to applicable solar access laws and reflect the unique values and preferences of the communities they govern. In these cases, associations may wish to convene a meeting of relevant stakeholders in order to coproduce a set of design guidelines for solar. Such gatherings would provide a forum for community members to communicate their values and preferences, forming the basis for standards that are meaningful and uncontroversial. These ideas can then either be tempered or strengthened through the participation of a diverse set of professionals whose expertise will help define the limits of what is technically practical, legally permissible, or most impactful in terms of balancing competing interests and serving the needs of the community.

Though it may be difficult to bring all stakeholders to the table, there are several advantages to taking a coproduction approach. Obtaining the direct participation of a wide variety of stakeholders helps ensure the standards produced by the effort reflect the diverse perspectives of the groups they impact. Such a strategy allows all stakeholders to have access to the same relevant information and can help break down communication barriers between homeowners and association representatives through its encouragement of face-to-face discussions…

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