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.

Let me be clear. There is no requirement in the Solar Rights Act that states we must allow every lot owner to have all the solar they need to power their entire house and there is no requirement that subdivisions must allow ground-based solar installations.

With our present Covenants, guidelines can simply state that each member can have whatever amount of solar that will work on their roofs... no screening requirements, no termination problems (getting members to remove an unsightly installation from their property once it has rusted and 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 by allowing our Board to approve anymore of these large ground-based installations in Eldorado. If members do not want these ground-based installations and this Board refuses to take the issue to a Covenant vote and wants to continue to allow these large installations, against our Covenants, we can petition them to force them into taking a Covenant vote or someone will have to file suit against them the next time they approve a ground-based installation.

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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, with the exception of Brian Cassidy. (update: 5/29/14- Mr. Cassidy belongs to a group in Eldorado called Action Eldorado and I discovered on their website they are promoting rooftop and ground-based solar installations, so, there is no one on the solar round table supporting our Covenants, which only allow rooftop solar installations, or taking the issue to a Covenant vote for members to decide.)

Rep. Egolf spoke of a pending solar case with Sunlit Hills in which a ruling is forthcoming. Our attorney, Mr. Hays, was most interested in the ruling on this case. As an attorney, he knows that 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. (I have a link to Mr. King's Opinion piece in another post and you can search for it on this blog. The land use charts you'll have to email me about, and at the bottom of this post is a link to the U.S. Dept. of Energy study). 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 always allowed rooftop solar and have allowed rooftop solar for 36 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 subdivisions 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 two 48 panel and this 44 panel are the largest in Eldorado. There is a 28 panel, 20 panels, 15 panels, and several trackers. Perhaps a total of 15 ground-based installations. Is this what members in Eldorado want?
Why does our Board think they have the right to make the decision on whether we should allow ground-based installations in Eldorado? We have one home having difficulty selling because of a large solar installation. HINT? 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 by the same group that infiltrated our Board to allow poultry/livestock in Eldorado. Unfortunately, the misinformation was relied on and no one verified it until I asked about it. Some of these same members are on the Solar Round Table. Another member on the committee said he believed in de-regulating our rules (Covenants) and simply allowing the nuisance clause to rule. In other words, if a neighbor doesn't like what another neighbor is doing on their property, they can take action against that neighbor. But, isn't that one of the reasons why we live in a residential subdivision with Covenants....the Board takes that action and members don't have to deal with it? This is why we pay an assessment. It is to protect our property values and maintain our community and amenities. If we wanted to live in the county and rely on county ordinances, then we would have to take action ourselves. But, we live in a residential subdivision with Covenants, and they supersede.

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. Our Covenants state, "Article II, Section 5(d).....Roofs shall not be constructed of highly reflective or glare producing materials, but may include skylights, solar panels and clerestories. " In a 2009 letter from our attorney, Mr. Hays, to Mark Young, our Compliance Representative, who was inquiring about allowing ground-based solar installations, Mr. Hays stated, "As you are aware, guidelines can only interpret or clarify Covenant provisions, but cannot add new restrictions that go beyond the Covenants." With one member having difficulty selling his property because of the approval of a ground-based solar installation 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:

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.