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I have a few things to discuss for this entry:
- Utah’s legislative session recently ended. There are several bills that passed which affect all forms of HOAs in Utah. Though not signed into law yet, all appear to become law in May 2017.
- If you are not on our mailing list for our firm’s education arm: “HOA UNIVERSITY” please leave a comment here and we will make sure you are on the notification list or contact our office and ask to be placed on the e-mail list for our free 1 hour educational events. (801-274-6800)
- Our next regular HOA University is 4/22/17. However, with the changes in the law, we may hold a course even earlier. Stay tuned!
- Despite what follows, I fully support exploring alternate energy sources. What a fascinating state of technology awaits all of us. I am concerned, however, that EXISTING HOAs don’t get much of a say at all regarding regulating solar panels on a go forward basis, irrespective of when your HOA was created (in other words, your Architectural Control Committee will be essentially powerless on this issue as explained below). This bill may extremely impact the visual makeup of your community!
THIS ENTRY IS ALL ABOUT SENATE BILL 154 WHICH PASSED AND AFFECTS ALL DETACHED HOUSING COMMUNITIES (NOT CONDOMINIUMS OR ATTACHED HOMES WITH SHARED ROOFS). TECHINICALLY, THE BILL GETS SIGNED INTO LAW ON OR ABOUT 5/9/17 AND THERE IS ALWAYS A SLIM CHANCE OF A VETO – BUT I AM VERY CONCERNED THAT THE BILL WILL BE SIGNED AND, THERFORE, I WANTED TO GIVE MY READERS A “HEADS UP” YOU CAN BE PREPARED. (you should know however, that we have many concerns about this bill and if you are interested, there is still a chance to express your concerns to the Governor in hopes of a VETO. Please contact my office for more information)
WHAT DO I NEED TO KNOW ABOUT “SB 154 SOLAR ACCESS AMENDMENTS?”
If this bills gets signed into law (which is most likely will), you need to know (it will become Utah Code 57-8a-701):
a. The law applies to “detached dwellings” which means a detached dwelling for which the association DOES NOT have an ownership interest in the detached dwelling roof.
b. Except for a limited circumstance described below, and only if expressly prohibited in your CC&Rs, a governing document (bylaws, rules, etc.) MAY NOT prohibit or restrict an owner of lot with a detached roof.
c. If the bill is signed into law AND if language is contained in your CC&Rs here is the only “go forward” regulatory authority your HOA has with respect to solar panels or “solar energy systems:”
1. Your CC&Rs cannot impose a restriction that (based on location for example) decreases the solar energy system’s production of solar energy by 5% or less. (As you can see, this really means you can’t impose any meaningful restriction)
2. Your CC&Rs cannot impose a restriction that would increase the solar energy system’s cost of installation by 5% or less.
3. However, you can by CC&R or a rule require that the solar energy system comply with applicable health, safety and building requirements, and if it is a solar energy system that is used to heat water, you can require that the system is certified by the Solar Rating and Certification Corporation; or a nationally recognized solar certification entity.
4. Finally, if the solar energy system is used to produce electricity, you can require that it complies with safety and performance standards established by (a) the National Electric Code; (b) the Institute of Electrical and Electronics Engineers; (c) Underwriters Laboratories; (d) an accredited electrical testing laboratory; or (e) the state or a political subdivision of the state.
5. Here are some aesthetic protections for the HOA: A CC&R or rule may be created for a solar energy system that is mounted on a roof as follows: (a) so it does not extend beyond the roof line; or (b) it can require that it has panel frame, support bracket, or visible piping or wiring that has a color or texture similar to the roof materials; or (c) if the solar energy system is mounted on the ground, you can make it so it is not visible from the street that front other lots. (there are few more “things” an HOA can do such as review the application to install; and some unique rules applicable to indemnifying the HOA if such installation somehow causes a loss to the HOA but that is about it).
d. This new section 57-8a-701 will apply to an Association regardless of when the Declaration was recorded (this is what our legislative group fought hard to change and my hat is off to those that tired hard to make this part of the bill).
e. Strangely, the statute states that “this part does NOT apply to an express prohibition or an express restriction or solar energy installations if it was already in your CC&Rs and recorded before January 1, 2017; or created by official association action taken before January 1, 2017.” You’ll note that this date has already passed. I wonder how many CC&Rs already have a prohibition or restriction in the CC&Rs already – not many I would guess.
f. SO WHAT CAN YOU DO – the statute does allow you to prohibit solar (that is, prohibit it in entirety – this is either an all or nothing proposition – you ban solar outright or you must allow it with very limited controls) but ony if you vote to expressly prohibited solar energy installations by a 67% of your members – so you can amend to prohibit BUT THE CONCERN IS THAT BETWEEN THE TIME WHEN THIS LAW PASSES UNTIL YOU GET A VOTE, YOU WILL HAVE INSTALLATIONS THAT YOU ESSENTIALLY CANNOT STOP.
g. Like any amendment, an amendment to prohibit solar can be “undone” by an amendment to repeal the prohibition.
TIP: Depending on when the Governor signs this bill into law (anticipated 5/9/17) your community may want to act NOW by voting on and recording an amendment to your CC&Rs before 5/9/17 if you want to prohibit solar panels at the present time for aesthetic or other community concerns. You will need to examine your community aesthetics, consistent look, inform appeal, etc., to see how you might want to proceed. You may welcome solar, or you may want to control it – but to control you are going to have to act immediately. Contact us ASAP if you are concerned.
FINALLY – as mentioned above, a rally or other events may be organized to get the Governor’s attention. If we cannot stop the bill, our hope would have been to make it applicable only to communities built AFTER the bill becomes law, but that is not the version that the powerful lobbyists got through.
REMEMBER – there are other bills that passed as well. Please make sure your are on our HOA University List for all of our education events – the next one in April will be addressing all the legislation that passed.
As always, all of us at The Richards Law Office enjoy working with you, look forward to future assistance we can provide your HOAs, and appreciate our professional relationship. Contact us at any time.
Best Regards, John Richards