Tuesday, October 14, 2014

Variances -- ECIA Board and Architectural Committee Have NO Authority To Allow Them -- Our Covenants RULE


Dear Eldorado Members,
Our Founders placed very important legal protections in place in our Covenants for all Members of Eldorado. I have been studying just how important our Covenants are and want to share this information.

It is important we all know what our Board and Committees have the authority to do and don't have the authority to do so we can say no when our ECIA Board and Committees run afoul of their authority. Variances... unless the authority is given in our Covenants, our ECIA Board and Architectural Committee (AC) do not have the authority to allow variances to our Covenants or our "guidelines".

In Article III, Section 1, our Covenants give our ECIA Board and our Architectural Committee the authority to write rules to maintain the common areas of our Association, roads, and staff, and to write and approve "guidelines" to clarify and interpret the provisions in our Covenants, but the "guidelines" must be consistent with our Covenants. Example: Our Covenants allow solar panels on rooftops. Our "guidelines" can clarify the details by stating we can have up to XX number of solar panels, that they must be installed horizontally, that they must be installed at no more than a 35 degree angle (latitude for Santa Fe)...you get the idea.

Another example: Sheds - a peeve of mine. In the "guidelines" it says they must be located within 15 feet of the home and obscured by plantings. Our AC cannot give a variance to allow that shed to be further than 15 feet from the home. The AC cannot vary or modify the Covenants or the Board-approved "guidelines"...

...with ONE exception. Article II, Section 3. Setbacks. In this one provision, it states that our Architectural Committee may give a variance for the setback for a home on a lot and it states what setback specifics they can vary. In all other provisions in our Covenants, it simply states that each architectural submission by a member is required to go through the Architectural Committee and be approved in writing by the ECIA Board or its designee(s), the AC. That simply means that the AC must confirm that the shed, or the rooftop solar installation, or the fence, etc, is in compliance with our Covenants and "guidelines", as written. *** (this may be confusing right now as sections of our present "guidelines" are NOT in compliance with our Covenants.)

If you own a lot in Eldorado, then that lot has a unique UBL number assigned to it and your deed is attached with the governing documents of the Eldorado Community Improvement Association, Inc. at the Eldorado of Santa Fe subdivision, and you pay an assessment to the ECIA. Once you signed on the dotted line to purchase your home within Eldorado you entered into a legal contract. That contract says you agree to abide by the governing documents and pay your assessment, and the other side of the agreement is that the Association and the members we elect to oversee our Association, hold up the other end of the contract and maintain our amenities responsibly and in accord with our governing documents, enforce our Covenants, manage our staff, and do it all in good faith, with the highest of fiduciary responsibility, and without conflict of interest.

As a member, your contract endows you with all the legal rights, burdens and benefits, of the ECIA, including the very important right to Vote in all our Eldorado elections, and the right to enforce our Covenants, if our ECIA Board is acting against their authority, and the right to run for office, which I sincerely hope all of you will consider. Your UBL number signifies that important membership right on your ballot and it needs to be accounted for in the voting process, by checking it off a master list, so we know the votes are from members and the results are what members want and no one else. Placing our actual UBL numbers on our ballots must be made policy by our ECIA Board and included in our Bylaws. Do not accept a new numerical "facsimile" system...only accept our actual UBL Lot numbers.

Let's review the legal protections that are in place for Lot owners in Eldorado within our Covenants:

Our Covenants clearly state in Art. III, Section 1, that our ECIA Board and Archiectural Committee can only write and approve "guidelines" that are consistent with our Covenants. Our ECIA Board and AC cannot vary, amend, or modify our Covenants without a majority approval from members in a Covenant vote and the results must be recorded at the Assessor's office to be valid! The process for amending our Covenants is in our Covenants, Article IV, Section 1. Amendments.

The amendment process is the only way our Covenants can be changed...the only way. Members are those who own property in Eldorado. Eldorado members have the legal right to Notice of any proposed variations or modifications to our Covenants and it is members who have the legal right to vote to decide if we want to amend the Covenants, or not...no one else has that legal right....no one.

Our AC cannot vary, modify or amend our "guidelines" once they are approved by our ECIA Board...and the "guidelines" MUST be consistent with the provisions in our Covenants. The "guidelines" should not be approved if they are not consistent with the provisions in our Covenants.

The ONLY instance our Covenants allow our AC to give a variance is in Article II, Section 3. Setbacks. In this provision, the Covenants state and give authority to the AC to allow a variance, in line with the requirements in the provision. It is important to note that this authority is only stated and allowed in this one provision. All other provisions in our Covenants state that architectural requests and submittals to the AC "...must be approved in writing by the ECIA Board of Directors or its designee(s)."

This means our AC can only confirm, through the construction submittal process from members, that each member's construction submittals are in compliance with our Covenants and our "guidelines". That is it.

And, there is no time limit for enforcement of our Covenants. Article IV, Section 5. Non-Waiver. "The failure to enforce any provision contained in this Restated Declaration shall not be deemed to be a waiver of the right to enforce it, nor shall such failure bar or affect its enforcement, irrespective of how long such failure continues."

So, you can see the Founders of our beautiful subdivision were even wiser than we thought. And you can understand why some who want to change our community by circumventing your legal vote, want to diminish our Covenants.

In a nutshell, no one can get onto our ECIA Board or a Committee and begin writing into our "guidelines" what they want to see happen in Eldorado. No one on our Architectural Committee (AC) can give variances for any of our Covenant provisions or "guidelines", except for setbacks, as stated in our Covenants.

Our Founders included the protections I've described to prevent a member from getting on our ECIA Board or AC and abusing their power. It is up to Eldorado members to use these protections to stop anyone who does. Please read our Covenants, understand them, and apply them. They are a most important protection for our homes and property values but, they need to be implemented and enforced. It is the responsibility of all members to ensure this is done, to participate in a committee or run for the Board, and to always stay well-informed.

I hope I have helped to open your eyes a little to the incredible importance of our Covenants. Every Lot owner/member in Eldorado must understand, not only what our Covenants say, but what they legally mean so members can speak out and take action to enforce those protections when needed. Knowledge is power. By understanding what is and what is not acceptable or allowed by our Board and committee members, we become empowered to protect our investments in Eldorado.....our homes, our community and quality of life, and our property values. Stay tuned for more. Thanks for your time.

 

Sunday, October 5, 2014

What Is a UBL Number... and Why It Is Important To Include It On Eldorado Members' Ballots To PROTECT Your VOTE!


In our Covenants under Article IV,  Section 1. Amendment. "As used in these covenants and building restrictions the owner of a Lot shall be deemed to be the fee title owner of record of any Lot in the subdivision." Your UBL number stands for the legal Unit, Block, and Lot number of record for your property in Eldorado. Your UBL number is taken from the land plat documents that are recorded at the Santa Fe County Assessor's Office, of the Eldorado subdivision as a record of all land owned by the Eldorado Community Improvement Association, Inc. All land within the platted documents are sectioned into Lots and given a UBL number for identification. All Lots within Eldorado at Santa Fe (the "Association") are subject to and legally bound by all our governing documents which "run with the land" and are "attached" to all deeds for Lots/properties within Eldorado. This is true for all general common-interest subdivisions with covenants. When a buyer signs on the dotted line to agree to purchase a property within a subdivision with covenants, you are agreeing with the purpose and intent of the documents and agreeing to abide by the rules, policies, and covenants, therein. You then become a "shareholder", a Member/Lot owner, in your subdivision, a non-profit corporation. Your investment in the non-profit corporation is your Lot/property and provides you with certain legal rights, including voting rights which include your legal right to Notice of any proposed amendments to the Covenants so you can vote to protect your investment; voting rights to vote on the Bylaws; and voting and running rights to vote for Members you feel would best maintain the subdivision with high fiduciary responsibility for a sound quality of life and high property values, as well as your right as a Member to run for the ECIA Board of Directors and serve your community, which I hope many of you will consider. Each Member also has the right to access and attend all meetings of the ECIA Board and Committees, as well as the right to become a Member of any of the ECIA standing committees or adhoc committees, as long as you are a Member in good standing (your assessment is paid). All ECIA meetings are not open to the "public". We are not a public entity. We are a private non-profit corporation owned by Members. It is only Members who are eligible for access to our meetings and have the right to voice an opinion at our meetings and within any communication provided by our Association as it is Members who have a stake in Eldorado....our properties. It is not important what anyone who does not own property within Eldorado wants, it only matters what those who do own property within Eldorado want.

Along with your name and address, the UBL number assigned to your property is unique to your property and will be passed to everyone who purchases your property after you. Thus, each UBL number "runs with the land", as do our covenants and governing documents. It signifies the fee title holder of that Lot/property as the legal Lot owner/property owner and a member in the Eldorado Community Improvement Association, Inc. and gives you special legal rights within Eldorado.

 I recently attended the last Election Committee meeting, September 24, in hopes of becoming a member. I heard the Election Committee was considering dropping UBL numbers from our ballots and so I expressed my serious concerns.

This small faction wants to develop a new system of numbers that correlates with our UBL numbers. They want to disassociate legal lot ownership with voting in Eldorado. This is very dangerous for our subdivision and absolutely not necessary. Each member's actual UBL number must be required to be on our ballots and required to be checked off of a master list of UBL numbers as each ballot is counted during an election. It is the Election Committee's fiduciary responsibility to do all they can to ensure the protection of each and every Eldorado member's vote in every election.

Why are they bending over backwards to appease this small faction? Tell our ECIA Board and Election Committee you want the  actual recorded UBL numbers, and not a facsimile, on our ballots to ensure our votes. The faction can follow the rules like everyone else, and must. 

Please contact our ECIA Board and Election Committee with your concerns and tell them you want the actual UBL numbers to remain on each and every ballot, and that each UBL number is checked off a master list during the vote count. This process will protect member's votes so the results are what Lot owners/members in Eldorado want, and no one else. It will also detect any duplicate votes.


In our governing documents there are a number of instances where the terms Lot and Lot Owner are used to reference a legal voting member of the Eldorado Community Improvement Association, Inc. Lots and lot numbers are an integral part of being a legal voting member in Eldorado and all subdivisions. Below are a few examples in our governing documents which use the term Lot, Lot Owner/Member when referring to fee title owners of property within Eldorado. It is obvious they give much importance to who the Lot owner is. UBL numbers identify Lot owners:


The Covenants are clear in stating a Lot Owner is a fee title owner of record
The Declaration of Covenants also clearly states "any Lot subjected by these Covenants to assessment by the Association shall be a member of the Association.” 


The Bylaws are clear in stating that Lots make up the Properties and that those that are a fee title owner of record of any of those Lots which make up the Properties are Members of the Association and have the right to Vote and that each Lot shall constitute one Vote

Now, please send those emails.


Eldorado Community Improvement Association, Inc. (ECIA) Board Members:
PresidentDag Ryen(505) 466-4063D.Ryen@eldoradosf.org
Vice President
Pam Henline(505) 466-4781P.Henline@eldoradosf.org
SecretaryGershon Siegel(505)466-8557G.Siegel@eldoradosf.org
TreasurerTodd Handy(505) 466-3785T.Handy@eldoradosf.org
DirectorJeanne Calzada(505) 466-1947J.Calzada@eldoradosf.org
DirectorGreg Colello(505)466-1827G.Colello@eldoradosf.org
DirectorDavid Yard(505)466-2894D.Yard@eldoradosf.org

Below are the ECIA Election Committee members: (Board director Jeanne Calzada is the liaison)

Kathie Graham                                       electchair1@yahoo.com
Joe Loewy                                              jloewy42@aol.com
Mary Cassidy                                         cassidys@nets.com
Carol Lachman                                       sherlachman@gmail.com
Bette Knight                                           knightbdk@gmail.com




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:
http://thesolarfoundation.org/sites/thesolarfoundation.org/files/HOA%20Guide_Final.pdf

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?
http://energy.gov/articles/rooftop-solar-challenge-empowering-innovators-reach-sun


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.
http://energypolicy.asu.edu/wp-content/uploads/2012/03/Solar-HOA-Brief-Final.pdf

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.
http://www.wearevision.com/dnn2/LinkClick.aspx?fileticket=MAzSPygj460%3d&tabid=85&mid=685


Sunday, October 13, 2013

Attorney General Gary King's Legal Opinion On The SOLAR RIGHTS ACT and HOA's, February 2011


Office of the Attorney General
State of New Mexico
Opinion No. 11-02

*1 February 7, 2011
The Honorable Mimi Stewart
New Mexico State Representative
313 Moon Street NE
Albuquerque, New Mexico 87123

QUESTION:

Under Senate Bill 1031, which was enacted in 2007 and codified at NMSA 1978, Section 3-18-32, can a homeowners association require that members seek its approval before installing solar panels?

CONCLUSION:

Subsection (B) of Section 3-18-32 allows a homeowners association to regulate the installation or use ofsolar panels so long as the regulations do not “effectively prohibit” their installation or use. The phrase “effectively prohibit” includes restrictions on the installation or use of solar panels that make such installation or use unreasonably difficult or costly,

FACTS:

Subsequent to the enactment of Section 3-18-32, some homeowners associations continued to require homeowners to obtain the prior approval of the associations before placing solar collectors on rooftops. This led to concerns about the chilling effects of such requirements on the reduction of greenhouse gases into the atmosphere,

ANALYSIS:

Section 3-18-32(B) provides as follows:
A covenant, restriction or condition contained in a deed, contract, security agreement or other instrument, effective after July 1, 1978, affecting the transfer, sale or use of, or an interest in, real property that effectively prohibits the installation or use of a solar collector is void and unenforceable.

(Emphasis added). In construing the language of this provision, courts will “giv[e] the words their ordinary meaning.” Marbob Energy Corp. v. N.M. Oil Conservation Comm'n, 2009 NMSC 13, ¶ 9, 146 N.M. 24, 206 P.3d 135.

To “prohibit” is ordinarily understood as “to forbid by authority” or “to prevent from doing something.”Merriam-Webster Online Dictionary (http://www.merriam-webster.com (November 18, 2010)). Although the legislature has not precisely indicated what the phrase “effectively prohibits” means, in this context, the phrase would clearly encompass those covenants, restrictions, or conditions that actually prohibit solar collectors. The question remains, however, as to when a covenant, restriction or condition that does not, on its face, prohibit solar collectors “effectively prohibits” the installation or use of solar collectors.

Because of its ambiguity, the construction of the phrase “effectively prohibits” is properly guided by reference to the broader legislative scheme in which Section 3-18-32(B) fits. See, e.g., State v. Tafoya, 2010-NMSC-19, ¶ 10. The overall legislative scheme relating to solar energy is a scheme expressly intended to encourage the development and use of solar energy in New Mexico. In the Solar Rights Act, the legislature made clear its determination that “the actual construction and use of solar devices” is an activity that “the law should encourage to be carried out, whenever practicable, by private enterprise.”NMSA 1978, Section 47-3-2 (1977). That Act goes on to declare that “the right to use the natural resource of solar energy is a property right, the exercise of which is to be encouraged and regulated by the laws of this state.” NMSA 1978, § 47-3-4(A).

*2 Within a context in which the legislature clearly intends to promote the use of solar energy, the phrase “effectively prohibits” should be construed in a manner that provides the greatest support for the installation and use of solar collectors. Accordingly, the phrase “effectively prohibits” should be applied not only to those regulations or requirements that actually render impossible the installation or use of solar collectors, it should also be applied to those regulations or requirements that add cost or difficulty to the installation or use of solar collectors to a degree that would deter a reasonable consumer.

Although this construction provides general guidance as to its application, the statutory provision at issue does not establish a bright-line rule. As a consequence, determining whether a given restriction “effectively prohibits” the installation or use of a solar collector may require a case-specific analysis.

For example, a homeowners association's imposition of a pre-approval requirement does not, by itself, “effectively prohibit” the installation of a solar collector in violation of the statute. If, on the other hand, the pre-approval process was consistently employed to deny approval for solar panels, it would violate the statute. Likewise, a violation of the statute would occur if the pre-approval process resulted in the imposition of conditions or requirements that made the installation of solar collectors unreasonably costly or difficult.

Arizona has a nearly identical provision to Section 3-18-32(B). Arizona law similarly makes “void and unenforceable” any “covenant, restriction, or condition” that affects “the transfer or sale of, or any interest in real property” and that “effectively prohibits the installation or use of a solar energy device.”Ariz. Rev. Stat. 33-439(A) (2000). The application of that provision by an Arizona Court of Appeals is therefore instructive here.

In Garden Lakes Community Assoc. v. Madigan, the Arizona Court of Appeals considered whether limitations imposed by a homeowners' association ran afoul of Arizona's bar on restrictions that “effectively prohibit” solar panels62 P.3d 983 (Ariz. Ct. App. 2003). The Court refused to interpret the phrase “effectively prohibit” to mean “inevitably preclude,” and instead determined that the phrase establishes a “flexible standard that permits the many-variations of restrictions and effects to be considered on a case-by-case basis.” 62 P.3d at 987. As we discussed above with respect to the New Mexico statute, the Court's interpretation of the phrase “effectively prohibit” was informed by the larger legislative scheme in Arizona which “sought to encourage the use of solar energy.” Id. at 986-87.

The Court went on to identify numerous potentially relevant factors to provide “general guidance” for determining whether a restriction “effectively prohibits” the installation or use of a solar panel in a specific case. Id. at 987. The factors identified by the Court include:
*3 · Whether the requirements are too restrictive to allow solar panels as a practical matter;
· Whether the requirements or restrictions allow for feasible alternatives in the installation or use ofsolar panels; and
· Whether the restrictions impose too great a cost in relation to what typical homeowners in the community are willing to spend.

Id. These factors reflect what we believe to be the correct focus of the analysis: do the restrictions make it prohibitively difficult to install or use solar panels? Again, this analysis will often require case-by-case application. [FN1]

Other states in addition to Arizona have enacted similar provisions to limit restrictions on solar panelsand have provided guidance as to their application. For example, Colorado law makes void and unenforceable any condition that “effectively prohibits or restricts installation or use of a renewable energy generation device.” Colo. Rev. Stat. § 38-30-168(l)(a)(2010). Colorado law further provides, however, that “reasonable” aesthetic requirements are permissible if they do not “significantly increase the cost of the device; or significantly decrease its performance or efficiency.” Id. at § (2)(a). California law contains similar language. See Cal. Civil Code § 714 (2010).

In sum, we conclude that a homeowners association's pre-approval requirement for the installation or use of a solar panel does not by itself violate Section 3-18-32(B). If, however, the imposition of that requirement can be shown to make the installation or use of solar panels prohibitively difficult or costly in a given case, the requirement would be void and unenforceable as a matter of law. Except for instances in which a homeowners association requirement actually prohibits solar panels, the question of whether a given requirement “effectively prohibits” solar panels would likely require a case-specific evaluation.
Gary K. King
Attorney General

Seth T. Cohen
Assistant Attorney General

[FN1]. The restrictions at issue in the Garden Lakes case provided that solar panels “must not be visible from public view and must be screened from neighboring property” in a manner consistent with standards set by the association. 62P.3d at 984. As applied in that case, the Court concluded that because such requirements could not be feasibly satisfied by the homeowner, they “effectively prohibited” the installation and use of solar panels and were therefore void and unenforceable.
2011 WL 542217 (N.M.A.G.)

END OF DOCUMENT

The link below will take you to the Arizona case law mentioned in the Opinion piece above, Garden Lakes Association v. Madigan in Arizona, which gives an excellent example of what the phrase 'effectively prohibit' really means.
http://azcourts.gov/Portals/89/opinionfiles/CV/cv000570.pdf