Virginia Attorney General weighs in on HOA efforts to ban solar

Photo courtesy of Solarize Blacksburg

Photo courtesy of Solarize Blacksburg

Virginia Attorney General Mark Herring has issued an opinion letter in response to concerns of some residents that their homeowner associations (HOAs) won’t let them install solar panels, in spite of recent state legislation nullifying most solar bans. Herring’s letter confirms the plain language of the 2014 law that HOA bans on solar installations are valid only if they appear in the association’s “recorded declaration.” Otherwise the association is prohibited from banning solar panels, although they can impose “reasonable restrictions” on their “size, place, and manner of placement.”

The letter, dated April 14, 2015, is in response to a request for an official advisory opinion from Delegate Joseph Yost, a Republican who had supported last year’s launch of Solarize Blacksburg. Some homeowners who sought to join the cooperative buying program ran into resistance from HOAs (more broadly called property owner associations, or POAs) unfamiliar with the new law.

Two parts of the AG’s opinion are worth quoting here:

What is noteworthy about the current language of this statute is that it permits only one procedure by which solar panels may be prohibited by community associations: by inclusion in the recorded declaration. The maxim ‘expressio unius est exclusio alterius’ “provides that mention of a specific item in a statute implies that omitted items were not intended to be included within the scope of the statute.” Applying this maxim, the current language of the statute must be viewed as meaning that any attempt by a POA to prohibit solar panels on private property by means other than a recorded declaration—such as rules, regulations, bylaws, policies, or other unrecorded instruments—is unenforceable.

(Footnote omitted.) The letter then adds:

When read as a whole, the statute also means that, with the sole exception of recorded declarations, existing prohibitions against solar panels on private property are no longer enforceable.

The opinion goes on to consider the constitutionality of the law and finds that it “does not violate the constitutional prohibition against legislation impairing the obligations of contract.”

Notably, the AG did not address the question of what kinds of HOA restrictions short of a ban meet the law’s “reasonableness” criterion. To date, the only guidance I know about on that question is a guide put together by the Maryland, DC and Virginia Solar Energy Industries Association—or MDV-SEIA, as the trade association is known.

As for Solarize Blacksburg, it proved a huge success in spite of isolated HOA issues, with a total of 55 solar installations. Since then, 20 other communities across the state have followed its lead to launch their own solarize efforts. The Blacksburg team is now helping to launch Solarize Montgomery with a party to be held at 5:30 today, April 22, at the Montgomery County Government Center in Christiansburg.


Update: After I put up this post I learned about a nice little segment that WVTF Radio did yesterday on the HOA dispute and the AG’s opinion. You can check it out here.

 

Solar industry group tells Virginia HOAs to let the sunshine in

Solar panels on the sunny front roof of a house should be cheered, not banned. Photo credit: NREL

Solar panels on the sunny front roof of a house should be cheered, not banned. Photo credit: NREL

Solarize Blacksburg had barely gotten underway last spring when the first complaints came in: homeowners who wanted to participate in the community bulk purchase of solar panels reported resistance from homeowner associations (HOAs) worried about aesthetics. Some HOAs were willing to work with residents, but others were not. Some HOAs refused to allow solar installations at all, even though most blanket prohibitions now violate state law.

The problem repeated itself around the state as more solarize programs took off. Many HOAs hadn’t heard about the new law, passed during the 2014 session, that nullifies HOA rules banning solar panels, including bans that have been in place for decades. Under the law, the only prohibition still legal would be one written into the HOA’s “recorded declaration”—something pretty much unheard of in Virginia, according to Senator (and lawyer) Chap Petersen, who wrote the bill.

But the law still allows “reasonable restrictions” on the “size, place and manner of placement” of solar panels, and what that means is open to interpretation. The Blacksburg organizers consulted lawyers and industry members to come up with a set of guidelines they hoped their local HOAs would use. But meanwhile, the same problem kept popping up across the state.

Now the Maryland, DC and Virginia Solar Energy Industries Association—or MDV-SEIA, as the trade association is known—has weighed in with its own guide. Not surprisingly, it recommends that HOAs be as accommodating as possible to residents who want to install solar panels. It is, nonetheless, a good starting point for HOA officers coming to the question for the first time. In the absence of any other guidance, it also puts HOAs on notice that restrictions going beyond MDV-SEIA’s recommendations may be challenged.

The industry guide contains a list of restrictions it considers reasonable, and those it does not. In general, restrictions that make a solar energy system either more expensive, or less effective, won’t pass muster. The classic example here is a requirement that solar panels not be visible from the street. If the street side of the house happens to be the only sunny side, then restricting solar panels to the rear is per se unreasonable.

Restrictions the industry group thinks are reasonable include requiring homeowners to get approval from the HOA before installing the system, placing the panels more or less flat on the roof, and concealing the wiring and components as much as possible.

Virginians dealing with this issue will take cold comfort in knowing that the fight over solar panels is playing out among HOAs and homeowners nationwide. Start typing “can HOAs” into Google, and the first phrase that pops up is “ban solar panels.” Moreover, while many states now prohibit solar bans, allowing “reasonable restrictions” is also common, and there is no consensus on what that means.

The nonprofit Solar Foundation, working with the Department of Energy’s Sunshot Solar Outreach Partnership, prepared a guide for community associations that contains a comprehensive discussion of this issue. “A Beautiful Day in the Neighborhood” was published before Virginia’s law was revised last year, but it remains an excellent resource for homeowners who want to educate their neighbors about the value of solar—and with any luck, head off disputes about what kind of restrictions the law allows.