Sunday, August 10, 2014

Eldorado! - Good Article in LA Times Against Ground-Based Solar Arrays Saying They Want to Switch the Energy Credits to Rooftop Solar...Great Idea New Mexico!

 Our Covenants are constructed with uniform restrictions that we all have to abide by and give us all some degree of environmental stability for higher property values. Ground-based solar is not uniform and puts more burden on the homes it is installed next to than homes it is not. This is one reason why three homes are likely to be having difficulty selling. Also, they say that ground-mount solar is cheaper to install than rooftop...that is not true for sure in Eldorado as they are all in cement. In California, they are discussing transferring the solar incentives to rooftop solar, instead of ground-based solar because placing solar on roofs saves valuable land from being covered with solar. Municipally, there are parking lot roofs, state building roofs, school roofs, etc, including residential roofs that can employ a lot of solar without covering earth that is home to wildlife and meadows. Of course, I think this is very wise and hope our PNM and state Dept. of Energy will follow suit!

L.A. councilman wants to put ground-based solar arrays on pause

Laws and LegislationRenewable EnergySolar EnergyFelipe FuentesLos Angeles Department of Water and PowerAlternative EnergyLocal Government
L.A. is the largest city in the nation to operate a solar power Feed-in Tariff program
Critics say communities have too little power to stop vast solar arrays that clash with their neighborhoods
"It's cheaper and easier" to mount solar cells on the ground--Bob Gibson, of the Solar Electric Power Assn.
Worried solar farms could overtake prized patches of open space, a Los Angeles councilman is asking the Department of Water and Power board to put off allowing new arrays that are mounted on the ground -- part of its Feed-In Tariff program -- until the city can make sure they mesh with neighborhoods.
Councilman Felipe Fuentes argued that before any more such projects are approved, the city should work out a "city planning review process" that would allow community reaction. In a letter to the board, he asked for officials to take action before the utility's next round of solar applications this summer.

Fuentes’ council district includes Lake View Terrace, where residents have raised concerns about proposed installations.
His request is the latest turn in a burgeoning debate over how tightly the city can regulate one of its solar programs. As Los Angeles tries to bulk up on solar, it finds two of its green goals on an unexpected collision course -- the quest for renewable power and the desire to preserve open space.

Los Angeles has become the largest municipality in the country to operate a Feed-In Tariff program, which enables people to install solar cells and sell all the energy back to the city. As of early June, the city had entered into nearly 120 Feed-In Tariff agreements, pushing to install 150 megawatts through the program by the end of 2016.
But as solar power enjoys an upswing, critics complain that communities have too little ability to stop vast arrays that clash with the feel of their neighborhoods, and fret that open space is at risk.
"It's not about being against solar power; I'm all for it," said Eddie Conna, who lives just outside of Los Angeles in Kagel Canyon and has raised concerns about proposed installations nearby. "But we shouldn't be covering open space with solar panels when we have all these buildings and parking lots."

City officials say under California's Solar Rights Act, local jurisdictions are supposed to allow private solar installations unless they harm public health or safety. State law also bars the city from releasing the addresses of Feed-In Tariff requests until the Department of Water and Power signs a contract, according to the department.
As a result, Fuentes wrote in a letter last week to the Board of Water and Power Commissioners, "ground-mounted solar farms are moving forward with little to no community input."
The issue recently erupted in Lake View Terrace, where one proposed project envisioned an array of 3,500 solar cells on an empty lot off Foothill Boulevard.

The Foothill Boulevard project got added scrutiny at a public hearing because it was along a scenic highway -- and was ultimately kicked back by a local planning commission. But city officials are still wrestling with how strictly they can regulate "commercial" arrays, senior city planner Robert Duenas said.
When Los Angeles and the state drafted its rules, "solar was something of a novelty," Duenas said. "People put a couple panels in their backyard and thought they were being green." Now "the industry has exceeded the regulations we have in place."
"What if it's just mom and pop with five panels?" Duenas asked. "Is that a business? I don't know."
Fuentes has suggested trying to amend the state law to give the city more control over such projects. Mel Levine, who authored the law as a state assemblyman and now heads the Water and Power board, said the state rules were written when solar was in its infancy and were meant to protect homeowners planting solar cells on their rooftops, not large arrays mounted on the ground.
Many new projects are taking that shape, however. Currently, 19 of the 119 sought-after or approved Feed-In Tariff projects in Los Angeles are mounted on the ground, according to the DWP.
"It's cheaper and easier" to mount solar cells on the ground, said Bob Gibson, vice president of education and outreach for the Solar Electric Power Assn., a nonprofit based out of Washington, D.C. That can pose a conflict as solar expands. "As solar has come down in cost, it's opened up more expensive land closer to populations. But they're competing with other uses for that land."
Fuentes argued that despite the restrictions of the state law, the city can tailor its own Feed-In Tariff program to favor rooftop installations. In his letter to the DWP board, Fuentes pointed out the city had already met state requirements to offer at least 75 megawatts through the program.
"Having met the state mandate, the board should have the discretion to modify the program requirements for future projects," he wrote.
Follow @latimesemily for what's happening at Los Angeles City Hall
Copyright © 2014, Los Angeles Times

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 could 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.

There is misinformation going around Eldorado saying there is a federal/state law that dictates we must allow every lot owner to have all the solar they want and any kind of solar they want. This is not true. This misinformation has caused Eldorado homeowners to acquiesce and stop speaking out against the installations that were installed against our Covenants. Might as well say it. They were installed illegally. 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 and you can't make it cost prohibitive by requiring expensive screening or inefficient by requiring the solar panels to face North, when the sun is South, for example. 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.

If our 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. (They do not want to take it to a vote.) The Board's fiduciary responsibility is to protect our property values by enforcing our Covenants and our Covenants only allow rooftop solar. Allowing ground-based solar installations without first taking a Covenant vote to confirm a majority consent from members is reckless behavior and a breach of contract and their fiduciary responsibility, and I do not say these words lightly.

                                                          *     *     *     *     *

Early last Winter, 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. I also sent information regarding the city of Santa Fe's land use lot coverage requirements and a study by The Solar Foundation supported by the U.S. Dept. of Energy regarding 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 prohibits". The case law Mr. King cites demonstrates that an HOA architectural committee cannot impose design restrictions, such as screening, that are so expensive it makes the solar device cost prohibitive.

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 the yard of a residential neighborhood would probably think it was inappropriate. There are three installations this size in Eldorado. An average sized home in Eldorado would use 9 panels.

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 shown at the top of the chart. 25 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. There is a solar declaration which states the state certainly encourages the installation of solar and the Solar Rights Act opened the door to all HOA's to have to allow it. This is a good thing. But, no legislative intent. Also, 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 and I suggest at a 35 degree angle/tilt which is perfect here for year round as it is the latitude for Santa Fe and will be the least visible...everyone wins. 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 25 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. This also means the present installations were illegally installed and this is another problem.

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, like the one above. This installation is preventing a home sale in Eldorado. The three 48 panel installations and this 44 panel installation are the largest in Eldorado. Our property values are at stake. Please contact our Board and tell them you want them to take ground-based solar to a Covenant vote to decide, now.

The installations that were allowed were based on misinformation and a zealous push by a few to allow ground-based solar in Eldorado. Our Architectural Committee exceeded their authority when they added ground-based solar installations, trackers, and wind turbines in the architectural "guidelines". "Guidelines" can only clarify provisions that are in the Covenants and in our case our Covenants allow solar panels on rooftops. "Guidelines" CANNOT add new provisions that are not in the Covenants. Only a Covenant vote to amend our Covenants with a majority consent of members can add ground-based solar to our Covenants. Our Board has inherited this situation but has added to it. 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 how serious this issue is and that it must be made right.


Below 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.