Tuesday, July 29, 2014

Judge Raymond Z. Ortiz Reverses Santa Fe Board of County Commissioners Decision. Great News For Eldorado!

I attended the hearing yesterday, July 28, 2014, at District Court on this issue. Judge Raymond Z. Ortiz reversed the decision of the Santa Fe Board of County Commissioners to give a variance to 55 Camerada Loop, in Eldorado, to legally allow two residences on the property. The homeowner/member was renting their studio and was told by our Compliance Representative they could not do this as it is against our Covenants. The member then tried to get a variance from the county to allow two residences on their lot.

This ruling is very important for Eldorado property values and for preserving our water and the character of our community.

Friday, May 23, 2014

PROOF!.....Our ECIA Does NOT Have To Allow Ground-Based Solar Installations Or All The Solar Anyone Wants...Members Want A Covenant Vote On Ground-Based Installations Before Any More Are Allowed!

I posted an unbiased survey on my blog a little while back asking Eldorado members on my mailing list if they would please take a minute to take the survey to get an idea of how members felt about rooftop solar and ground-based solar. I received 18 surveys back. 15 wanted rooftop solar only; 2 were open to talking about ground-based solar; and 1 wanted to allow ground-based solar. It's a small sampling but, I'd bet it's pretty indicative. Thank you to those who took the survey (which is still available) and the three members who let me know they contacted our Board to tell them to include me on the Solar Round Table.

There is NO federal law that states we must allow every lot owner to have all the solar they want and any kind of solar they want. The Solar Rights Act simply states that if you are a residential subdivision with Covenants that do not allow solar, you must now allow it. Simple. I hope all residential subdivisions in New Mexico will discuss this issue with their members to decide what kinds of solar, how much, and any other requirements they want to include, and take it to a Covenant vote. This will protect members and their community in the long run.

In our present Eldorado Covenants and architectural guidelines, it could simply state that each member can have whatever amount of solar will work on their roofs... no screening requirements, no termination problems (getting members to remove an installation from their property once it is no longer working), and members don't see it. But, if the Board wants to legally allow ground-based solar, they must take it to a Covenant vote so members can decide if we want to amend our Covenants to allow it. The Board's fiduciary responsibility is to protect our property values by enforcing our Covenants and our Covenants only state rooftop solar. Allowing ground-based solar installations without a majority consent from members is reckless behavior.

I believe our property values could be at serious risk if our Board approves any more of these large ground-based installations in Eldorado. This decision must go to a legal Covenant vote.

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Senator Peter Wirth, Rep. Brian Egolf, and our attorney, John Hays attended the Solar Round Table meeting in April. I also attended and as I stated in a previous post, everyone on the committee is for ground-based solar.

Rep. Egolf spoke of a pending solar case with Overlook Homeowner's Association, Inc. in which a ruling is forthcoming. Our attorney, Mr. Hays, was most interested in the ruling on this case. As an attorney, he knows what defines a law is case law authority....the decisions that result from litigation regarding a law.

Several months ago, I gave our Board and Architectural Committee, an Opinion piece on the New Mexico Solar Rights Act (SRA) and Homeowner's Associations (HOA's) by our attorney general. Recently, I also sent information regarding the city of Santa Fe's land use lot coverage requirements and a study supported by the U.S. Dept. of Energy done by The Solar Foundation re HOA's. What I wanted to show was that according to the SRA, Eldorado can limit the size of a solar installation and that we do not have to allow ground-based solar installations. In the Opinion piece, Mr. King cites case law in Arizona (their SRA is very similar to ours and if you'd like to read the case law, just google Garden Lakes Community Association, Inc. v. Madigan) that defines the phrase "effectively prohibit". The case law Mr. King cites demonstrates that an HOA cannot impose restrictions that are so expensive, it makes the solar device cost prohibitive. The SF Land Use Office was very helpful. Santa Fe is divided into 7 residential districts and each has certain requirements. My question was, "Could I install a 15-panel ground-based solar installation in my backyard in Casa Solana?" Casa Solana, like all districts, has a lot coverage allowance. You total the square footage of your home, garage, driveway, shed, whatever is on your lot. The total cannot exceed the lot coverage amount for a residential lot in your district. The answer was, No, I could not install a 15-panel ground-based solar installation in my backyard in Casa Solana because the square footage would exceed the allowable amount of lot coverage allowed in that district. This is the same thing as imposing a size restriction. My question was just based on "size". I also doubt very much if they would even allow a ground-based installation in Casa Solana. The SRA is a state law and is applied the same across the state, so the rules are not different in Santa Fe than they are in Eldorado or Las Companas or Sunlit Hills.

This installation consists of 48 panels. Each panel is 3 x 5 feet. Sixteen trees were sacrificed to install it. I call this "res ipsa loquitur". In legal terms it means "it speaks for itself". In other words, the common knowledge response for anyone seeing an installation this size in a backyard would think it was inappropriate. There are two installations this size in Eldorado.

My final example is the Solar Foundation's study, supported by the U.S. Dept. of Energy. On page 10, there is a chart, and on pages 9 and 11 there are explanations for each provision. 28 states have passed a SRA. The chart shows different provisions each state has adopted. I will point out the three I believe will answer our Board's questions and support our member's right to choose what solar we want to allow in Eldorado. First, New Mexico does not have a "legislative intent" clause. This is like an eminent domain over solar installations. It is a legal term that says the "state" is so "intent" on establishing all the solar they can get that they place a requirement to allow anyone to have the solar they want. Again, we do not have this provision in the New Mexico SRA. The next is the "grandfather clause". New Mexico does have this clause which states that any HOA restrictive Covenants established prior to the SRA (1978) are exempt. Our restrictive Covenants were established in 1972, but, we have allowed rooftop solar rooftop solar for over 20 years! The third provision is to state that we are a "reasonable restrictions" state. This provision is described in the Attorney General's Opinion piece and the case law he cites, and means just that, reasonable. With rooftop solar, we simply allow members to work with their installer as to how much they want to install on their roof. The final and very important provision is that the New Mexico SRA does NOT require HOA's to allow "ground-based solar installations". Only three of the 28 states that have adopted a SRA do, but, New Mexico is NOT one of them. Based on these facts and information, it is very clear that Eldorado does not have to allow ground-based solar installations, according to our Solar Rights Act and if our Board wants to legally allow them, they must take the issue to a Covenant vote for members to decide whether we think it is in our best interests to allow ground-based solar. Until our Covenants are amended by 51% of our members, only rooftop solar can be allowed. We must hold our ECIA Board to this.

In Judge Macaron's recent ruling on our Pets Clause, there is a paragraph I have seen used in several case laws regarding HOA's that describe why people like to live in residential common interest developments (CID's) with restrictive covenants:

"Historically, restrictive covenants have been used to assure uniformity of development and use of a residential area to give the owners of lots within such an area some degree of environmental stabilityTo permit individual lots within an area to be relieved of the burden of such covenants, in the absence of a clear expression in the instrument so providing, would destroy the right to rely on restrictive covenants which has traditionally been upheld by our law of real property.” [emphasis added] Montoya v. Barreras, 473 P.2d 363 (N.M. 1970)

This installation is 44 panels. Each panel is 3 x 5 feet. This installation is preventing a home sale in Eldorado. I understand there is some kind of screening negotiation taking place. The three 48 panel and this 44 panel are the largest in Eldorado. It is our property values at stake. There is only one responsible way to make a decision on this important issue which involves our property values, and that is to take this issue to a Covenant vote. Please contact our Board and tell them you want them to only allow rooftop solar, as stated in our Covenants, or take ground-based solar installations to a Covenant vote to decide.

The installations that were allowed were based on misinformation I stated above regarding a federal law. Our Board has inherited this situation but has added to it, and they are trying to find clarity. I believe their fears are out of line with what the SRA is saying and they are being pressured by those who want to allow big solar installations in Eldorado for their own personal reasons. I hope the information I have provided will help them realize this issue must be decided by all members. They fear litigation from both sides of the fence but, must realize it is their responsibility to protect member's property values and enforce our covenants, which only contain a provision for rooftop solar. With several members having difficulty selling their property because of the approval of these ground-based solar installations installed nearby, that should be all the proof our Board needs to know which side of the fence they need to stay on.

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Here is the link to the study supported by the U.S. Dept. of Energy, done in 2013, by The Solar Foundation. The chart I mention above is on page 10. Explanations for each provision, beginning with legislative intent are on pages 9 - 11. If you read the entire study, you will notice that throughout the study, they only refer to rooftop installations, as this is what the majority of neighborhoods in the country want:

As far as the federal government goes...the US Dept. of Energy is promoting a rooftop solar challenge to get solar panels on the rooftops of every home in America. This is a wonderful idea! There are 19 states promoting this wonderful rooftop solar challenge but, why isn't New Mexico one of them?

This is an Arizona State University study of the SRA in Arizona. There is a map that shows the states with a SRA and what level of restrictions each state imposes. At the end of the study is the link to the solar foundation study I cite above.

This is a link to the Garden Lakes Community Association, Inc. Restrictive Covenants. (Garden Lakes is the Homeowner's Association in the case law our Attorney General cited above.) You can see that they only allow rooftop solar in their HOA.