Solar Panels
Date: March 2, 2021
By:
Marla J. Diaz
Prior to 2020, the Assembly established certain limitations on the restrictions a community association could place on solar panel installation on the lots in their communities. Pursuant to Va. Code Ann. 67-701(A),
No community association shall prohibit an owner from installing a solar energy collection device on that owner’s property unless the recorded declaration for that community association establishes such a prohibition. However, a community association may establish reasonable restrictions concerning the size, place, and manner of placement of such solar energy collection devices on property designated and intended for individual ownership and use.
The most significant takeaways from this statute were (a) restrictions totally prohibiting solar panels in a community association must be in the recorded declaration to be effective; (b) owners do not have right to install solar panels on common area or common elements; and (c) association rules restricting solar panels must focus only on size, place, and manner of placement of the devices.
This statute gave some guidance to community associations, but did not account for the limits of solar panel technology and how it could prevent some owners from having an equal opportunity to have solar panels. Prior to 2020, an association could require solar panels to only be installed on the rear roof of a home, but this would prevent owners without direct sun exposure in their rear yards from making use of solar panels.
The 2020 changes to the statute modified the existing statutory provision by allowing exceptions to community association restrictions on solar panels if the owner could demonstrate that the association's restrictions unreasonably interfere with their ability to install and use solar panels. According to Va. Code Ann. 67-701(B):
A restriction shall be deemed not to be reasonable if application of the restriction to a particular proposal (i) increases the cost of installation of the solar energy collection device by five percent over the projected cost of the initially proposed installation or (ii) reduces the energy production by the solar energy collection device by 10 percent below the projected energy production of the initially proposed installation. The owner shall provide documentation prepared by an independent solar panel design specialist, who is certified by the North American Board of Certified Energy Practitioners and is licensed in Virginia, that is satisfactory to the community association to show that the restriction is not reasonable according to the criteria established in this subsection.
The idea behind this statute is that if a third party opinion establishes that the size, place, and manner restrictions adopted by the Association interfere with the collection of sunlight or increase the cost of the installation, the owner is entitled to an exception to the restriction regardless of the rules adopted by the Association. So, under this new statutory provision, community associations that do not have an express prohibition against solar panels in their recorded declaration will need to allow exceptions to their rules on size, place, and manner of placement of solar panels if the owner can establish that such restrictions unreasonably increase the expense or reduce the energy production of solar panels on their property.
Community associations hoping to regulate solar panel installations in their community will need to carefully review their existing restrictive covenants and adopt reasonable rules that do not unnecessarily interfere with owners efforts to embrace this clean technology. Boards should begin by reviewing their association’s recorded declaration to determine if there is an express prohibition on solar panels. If not, then boards should consider adopting reasonable rules on size, place, and manner of placement of solar panels on individual owner lots. They should also consider a procedure for addressing applications in which the owner provides documentation from a certified independent solar panel design specialist showing that the association's regulations unreasonably increase the cost or reduce the energy production of solar panel installations. The specialist’s opinion will be entitled to deference, and counsel should be first consulted should a Board wish to decide to the contrary of such an opinion.
Our attorneys are available to assist in the development of these restrictions and procedures as well as to answer any questions your board may have about the impact of the solar energy collection device regulations on your community. Please do not hesitate to contact counsel for your Association in this regard.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.