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.