Beth Mulcahy, Esq.
A very common question that I receive from planned community boards is: “can we prohibit owners from installing solar panels on their Lot?” The short answer is “no”.
Arizona law, specifically, Arizona Revised Statute Section 33-1816 of the Planned Community Act, addresses installation of solar panels or solar energy devises in a planned community and sets forth as follows:
“A. Notwithstanding any provision in the community documents, an association shall not prohibit the installation or use of a solar energy device as defined in section 44-1761.
B. An association may adopt reasonable rules regarding the placement of a solar energy device if those rules do not prevent the installation, impair the functioning of the device or restrict its use or adversely affect the cost or efficiency of the device.
C. Notwithstanding any provision of the community documents, the court shall award reasonable attorney fees and costs to any party who substantially prevails in an action against the board of directors of the association for a violation of this section.”
As such, a planned community association may not prohibit the installation or use of a solar energy device (e.g. solar panels) on an owner’s single family residence. The Association may adopt reasonable rules regarding the placement of a solar energy device on the single family residence so long as the rules do not prevent the installation, impair the functioning of the device or restrict its use or adversely affect the cost or efficiency of the device. Please note that the limitations on the Association’s authority to implement a Rule regarding the solar panels are very broad.
Additionally, pursuant to A.R.S. Section 33-439, which applies to both condominiums and planned communities, an association’s Declaration, or other association documents (such as architectural review committee guidelines and rules and regulations, etc.) cannot “effectively prohibit” the installation or use of a solar energy device.
Finally, on February 25, 2003, the Arizona Court of Appeals, Division One, issued an opinion in Garden Lakes Community Association, Inc. v. Madigan/Speak (393 Ariz. Adv. Rep. 9) that interprets A.R.S. Section 33-439. In that case, the Court held that whether or not restrictions in association documents (such as CC&Rs, architectural review committee guidelines, rules and regulations, et.) “effectively prohibit” solar energy devices is a question of fact to be decided on a case-by-case basis. Further, the Court held that the burden of proof is on the homeowners in these cases to prove that the association’s documents “effectively prohibit” the homeowner from installing and using a solar energy device.
In their opinion, the Court provided general guidelines to trial courts and parties involved in or anticipating litigation over restrictions affecting solar energy devices. The Court stated that in determining whether a deed restriction effectively prohibits the installation or use of a solar energy device numerous factors may be relevant:
- The content and language of an association’s Declaration, restrictions or guidelines;
- The conduct of the homeowners association in interpreting and applying the restrictions;
- Whether the architectural requirements are too restrictive to allow solar energy devices as a practical matter;
- Whether feasible alternatives utilizing solar energy are available;
- Whether any alternative design will be comparable in cost and performance;
- The feasibility of making the required modifications;
- The extent to which the property at issue is amenable to the required changes;
- Whether decisions previously made by the homeowner or a prior owner are responsible for limiting and precluding the installation of solar energy devices rather than the restrictions themselves;
- The location, type of housing, and value of the homes in the community; and
- Whether the restrictions impose too great a cost in relation to what typical homeowners in the community are willing to spend (however, the Court emphasized that cost alone should not be dispositive).
In summary, A.R.S. Section 33-439 and the ruling in the Garden Lakes case does not eliminate the power of a homeowners association to impose aesthetic and architectural restrictions on the installation and use of solar energy devices. However, solar energy devices may not be “explicitly prohibited” or “effectively prohibited” by the guidelines of an association or by an association’s interpretation and application of its guidelines.
Please contact the Mulcahy Law Firm, P.C. if you need assistance with solar panels.