The Solar Rights Act of 1978 in Practice
There are a lot of folks in California whose homes (and all improvements done to them) fall under the jurisdiction of a Home Owner’s Association (HOA). If you live in an HOA this shouldn’t be news to you. In fact you may have already gone through the process of gathering neighbor sign offs on your proposed home improvement before presenting the complete design package to the architectural committee for approval. If you have not gone through this process and don’t understand how CC&R’s (the Covenants, Conditions & Restrictions that determine what can and cannot be done to your property) can impact your solar power plans, this article is for you!
While I can’t cover all available strategies to move improvements through your HOA’s architectural committee, the purpose of this article is to give you insights and strategies for getting your residential solar energy system approved if you come up against an ornery board member, neighbor, or other impediment.
First, let me lay down the ground rules. In California, The Solar Rights Act of 1978 (and it’s various amendments over the years) states that “Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable.”
The Solar Rights Act goes on to state “installation of a solar energy system… shall not be willfully avoided or delayed. Any entity, other than a public entity, that willfully violates these provisions is liable to the applicant or other party for actual damages and must pay a civil penalty to the applicant or other party in an amount not to exceed $1,000.” Pretty cut and dry, right? Well, here’s where things get a little murkier.
Section 714 of California Civil Code does give municipalities and HOAs some wiggle room by giving these parties ‘reasonable restrictions on a solar energy system’ and it is within these reasonable restrictions that a troublesome HOA board can deny or restrict a residential solar system. Under Section 714, reasonable restrictions are defined as “restrictions on a solar energy system that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance”. The term ‘significantly’ is further defined as “an amount not to exceed $2,000 over the system cost as specified and proposed or a decrease in system efficiency of an amount exceeding 20 percent as originally specified and proposed.” What this means is that an HOA can restrict your solar power system if they don’t increase the cost by more than $2,000 or reduce its output by more than 20%.
Let me stop here for a moment and say that 99% of HOAs we deal with in California approve solar electric systems without a hassle of any kind. Most boards are aware of the Solar Rights Act and/or support renewable energy in their communities. So chances are quite good (especially if you’re not the first solar home in your neighborhood) that your solar power system will get rubber stamped by the board.
For those of you in the 1% minority of HOAs, prepare for a fight. These boards are usually comprised of individuals with anachronistic views of solar energy that fear that solar will detract from the natural beauty of the neighborhood, and they will do whatever it takes to impede your solar installation. These individuals, when presented with The Solar Rights Act, will build their opposition around the ‘reasonable restrictions’ clause of Section 714. The HOA’s most common tactic is to require you, the homeowner, to move the solar panels to a spot where they won’t be visible by your neighbors or to surround them with some type of landscaping if the system is ground mounted. Another common tactic is to require you to buy a certain type of solar panel that the HOA finds to be aesthetically pleasing. If the HOA is particularly opposed, they will play a game of ‘beat the clock’ with your installation hoping that either you will give up on solar or your rebate reservation will expire before installation. ‘Beat the clock’ is a particularly effective tactic if the architectural board only meets monthly or the board can’t seem to get a quorum at its monthly meetings.
Providing that you don’t give up and continue to fight for your right to
go solar, the HOA will often solicit the advice of a third party ‘independent’ solar contractor to review your design. Of course, the HOA (which is using your dues money to pay for this independent assessment), will try it’s best to influence this independent third party. One tactic I’ve seen several times is to have the third party design a system that falls within the ‘reasonable restrictions’ clause. For example, an HOA in Laguna Niguel recently tried this with a customer of mine by asking another solar contractor to design a system that fit entirely on the back roof. The HOA’s goal was to eliminate any solar on the front of the house. Of course, the other contractor was able to oblige by reducing the system’s production by 18% (less than 20%) and because the system was smaller, it was also cheaper. As a result, the HOA thought it had gotten its way and went so far as to show up at an onsite meeting to review the other contractor’s design with me and my customer.
Well, that meeting didn’t work out quite the way the HOA planned. The other contractor had missed a critical shading factor in its design. A seven foot chimney to the south of the array eliminated nearly half of the back roof from consideration (Please see my blog “The Ravages of Shading” to better understand why this would be a problem). How could the other company have missed this tall chimney? The other company tried to design the system from a satellite image so they could save the trip out to the customer’s location. Once this company was made aware of the chimney’s existence, their design was rendered null and void and the HOA (after five months of stalling tactics) was forced to approve the original design.
Another HOA we’re working with recently approved a solar installation in Indian Wells provided the customer change from ‘front contact’ solar panels to ‘back contact’ solar panels because they didn’t ‘feel the reflective silver strips fit into the look’ of the neighborhood. They went on to say that they had gone to great effort to solicit ‘solar industry experts’ who insisted that ‘back contact’ panels could be installed for the same price as the originally proposed system. Well, the fact is that this customer was originally proposed the panels the HOA likes, but opted for a less costly solution. The solar system the customer chose was in fact over $7,000 cheaper than the system the HOA wants. The HOA in this case was in clear violation of the Solar Rights Act and was forced to allow the customer to go with the less expensive panel after a bit of wrangling.
I could cite numerous other examples of HOAs blocking solar installations for aesthetic and other reasons. So what do you do if you find yourself with an unreceptive HOA board that frowns upon solar? First, you need to lead the fight. The HOA will not listen to your solar contractor or return his calls in many cases. This is your fight and your solar company will have your back. Second, show your HOA the Solar Rights Act. This piece of paper will make the problem go away 99% of the time. Third, prepare cost and efficiency comparisons between what you want and what the HOA will allow. Be prepared to do a bit of education here since most HOA boards lack solar expertise. This is the best way to leverage your solar contractor. Fourth, have your contractor provide you with photos of other installations they’ve done that are similar to what he’s proposing for your home. After all, the HOA is mainly concerned with the system’s aesthetics, so if you can put their worries of an ugly solar array to bed, then they will likely approve the system. Lastly, if all else fails, you may need to bring in some legal firepower or get creative in some other way. Some things I’ve seen others try are: having your neighbors sign a petition supporting your solar power system as designed; calling the media out to your home to help ‘enlighten’ the board; getting yourself elected to the board to effect change from within, and lastly recalling the board outright.
In sum, if you live in an HOA community, you need to know your rights as they pertain to installing solar energy on your home. Familiarizing yourself with the law and the common tactics your HOA will employ to turn the law to their favor (or wear you down in the process) will inevitably speed system approval with minimal hassle. Your solar contractor should be able to help you navigate this process if you hit a roadblock, but always remember this is your fight, and ultimately you should win it. If you happen to be the first in your HOA to push solar through an uncooperative board, your neighbors will owe you a tremendous debt as they seek to reign in their energy costs in the future.
Scott Gordon can be reached at Sgordon@HelioPower.com