Sunday, April 6, 2014

The ECIA Prevails -- WINNING! Judge Macaron Rules In Favor of Our ECIA -- See Court Summary Document

I just received confirmation from our ECIA Board President, Dag Ryen, that Judge Macaron ruled in favor of our ECIA. We have prevailed! His ruling will be filed tomorrow, April 7, and the ECIA website will post Judge Macaron's ruling... and you can be sure I will too! I thank Judge Macaron and I hope you will join me in thanking our ECIA Board for all their time and efforts in this important precedent-setting case. This ruling has not only secured our Covenant's Pets Clause intent not to allow poultry/livestock, but, the Covenants of all residential subdivisions in the state and across the country. It is a very important ruling.

Thank you to all Eldoradoans for voting to protect and support our Covenants. This was money very well spent as it has now been legally decided as to what the legal intent of our Covenants Pets Clause says and cannot be 'interpreted' by anyone with an agenda who may decide to run to be on our ECIA Board. The only way our Covenants can be amended is for 51% of members to decide, no one else. That is the way it is meant to be.

Below is a link to our ECIA website to the Court Summary document by Judge Macaron.

http://www.eldoradosf.org/document/Summary%20Judgement.pdf

Tuesday, March 18, 2014

ECIA Board Elections - Property Privacy Rights



I'm going to get right to it. It is what it is. As per our new Bylaws, the Board candidates with the highest number of votes will get the three year terms.

The three new candidates that are running are ALL pro-poultry/livestock. Two of them, Gershon Siegel and Greg Colello are in litigation with the ECIA re the poultry/livestock issue. There is obviously a very serious 'conflict of interest' here. I have been told by our Board President, Dag Ryen, that these two members will not be able to sit in on discussions, discuss, vote, or be privy to any information having to do with our ECIA litigation.

My recommendations....ONLY vote for Dag Ryen, Pam Henline, and Jeanne Calzada so they will get the three year terms! Thank you.

The three new board member candidates are sending around emails trying to gather funds for their defense. They are citing that their cause is about personal property and privacy rights. They are also stating that the reason why our assessments went up is because of our ECIA litigation against them. We wouldn't be in litigation if these members didn't bring poultry/livestock into Eldorado against our Covenants and then refuse to come into compliance. So, it is these members who have caused this litigation, not our Board. Our ECIA Board is doing their job of enforcing our Covenants and I am grateful for it! So when I hear these pro-poultry/livestock people whine and say our ECIA is spending all our money on litigation, I say look in the mirror....you are the problem, not our ECIA Board.

First, I have said this many times before.....Eldorado is an HOA, a homeowner's association. We are a common interest residential development with covenants. What that means is that when you purchase a home within Eldorado, you must sign a contract.....a legally binding contract......stating that you agree to abide by the covenants of Eldorado. When you sign that contract, you must abide or you can be cited for non-compliance and forced to comply. When you do sign, you are agreeing to subordinate some of your property rights....such as the ability to raise poultry/livestock or to paint your home bright pink! Those are personal choices and if you don't live within a subdivision with covenants, those personal property rights are not subordinated. But, within a subdivision with covenants they are and all members must abide by them. So, if you do not want any of your personal property rights subordinated, do not purchase a home within a subdivision with covenants.

These three pro-poultry/livestock members, who will be on our Board, do not like our covenants and will take on the very same issues they were provoking before, namely, pro-poultry/livestock and ground-based huge solar installations, trackers, and wind turbines. Ground-based solar installations, et al, must go to a covenant vote to amend our covenants to allow, as our covenants only allow rooftop solar. These three members, are not interested in amending our Covenants to allow what they want. They are only interested in passing guidelines. As our attorney stated in his first letter, 2009, responding to an inquiry from our Architectural Committee to allow ground-based solar installations..."As you are aware, Guidelines can only interpret or clarify Covenant provisions, but cannot add new restrictions that go beyond the Covenants." Our rogue SERA board, at the time, and rogue SERA Architectural Committee chose to simply pass the guidelines they wanted, against sound advice. This is why our Covenants have a non-waiver clause, to protect members from these kinds of agendized decisions.

So, if anyone thinks they are going to get onto our Board and begin making the changes they so desire to Eldorado.....to make it the model mini-farm community or model solar community or whatever, they had
better think twice. Our members are much more savvy these days and we will take action. You cannot change the provisions in our Covenants without legally amending them with a 51% vote from members, in writing. It is difficult to achieve for a very good reason.....because amending anything in the Covenants is very serious to the quality of life and property values we all enjoy. It has to be a very good reason for members to vote to amend and if it is not, we will not. But, ultimately, it is up to members to decide, not our Board of Directors or anyone else.

Also, the litigation we are involved in is absolutely not about poor innocent people having a couple of chickens. This is INDEED a gateway issue and these people are politically involved in setting a legal precedent to bust Covenants. If they can have a couple of chickens.....which are livestock, the entire list of 'domestic livestock' as described in the county animal control law, will be next. As you recall, that is what they wrote about at the beginning of this fight....goats, ducks, poultry and all 'barnyard animals'....and in my research I found SERA's first homepage which clearly stated they wanted to pass guidelines to allow "livestock and food production". I don't think you can get much clearer than that. 

This is about choices...the choice to live within a common interest development with Covenants that do not allow poultry/livestock and other choices members agree to or.....to live elsewhere, where these choices are allowed. It is a choice and those of us who chose Eldorado with our eyes open want to keep our Covenants intact and protect our wonderful quality of life, our property values, and amenities we all enjoy.


Sunday, October 20, 2013

Eldorado Solar Survey - Please Copy/Paste In Your Email, Answer Survey, Email Back To Me @ EldoradoGadfly@gmail.com - Thank you and Please Pass On To Other Members!

I am conducting a survey to see how members in Eldorado feel about ground-based solar, solar trackers, and wind turbines in Eldorado. Our Board is 'beginning' to realize they are a problem but want more information from members. Please copy and paste this survey to your email and add your name and address so the Board knows you are an Eldorado lot owner. Fill out the survey, add any comments or questions, and email it back to me at eldoradogadfly@gmail.com

Here is the survey: Please tell other Eldorado members about this survey so we can get as many responses as possible. Thank you for taking the survey. It is important to get as many members as possible to respond so please feel free to pass it on to other members.

Our Covenants only mention rooftop solar and rooftop solar is what has been installed in Eldorado for 36 years. It is also the accepted form of solar allowed in Homeowner's Associations across the country. In 2009, our Architectural Committee began approving ground-based solar arrays, solar trackers, and wind turbines. This survey is to see how many members approve or disapprove of these large ground-based installations. If we don't want to see them, we can amend our present solar guidelines to allow only rooftop solar arrays, in the broadest possible way, or we can amend our Covenants to add all ground-based solar collectors and wind turbines are not allowed. This gives lot owners the opportunity to have the solar they need to power their home ONLY, without the eyesore to the community of large installations that are sized to make money with PNM and are inappropriate in our beautiful residential community.

1) Do you know that our Covenants only mention solar on rooftops?                         Yes___    No___

2)  Have you noticed large ground-based solar collectors going up                          
     in Eldorado?                                                                                                            Yes___    No___

3)  Was a large ground-based solar collector installed next to your
     home?                                                                                                                       Yes___   No___

4)  If so, were you notified of your neighbor installing a solar
     collector?                                                                                                                   Yes___   No___

5)  Do you think ground-based solar collectors and wind turbines should be allowed
      in Eldorado?                                                                                                             Yes___   No___
                                                                                                   
6)  Do you think Eldorado should only allow rooftop solar collectors, as
     mentioned in our Covenants?                                                                                      Yes___  No___

7)  Would you vote to amend our Covenants not to allow ground-based
      solar collectors installed in Eldorado?                                                                        Yes___  No___

8)  Would you vote to amend our Covenants to allow ground-based solar
     collectors in Eldorado?                                                                                                 Yes___ No___

Thank you for taking this survey. It will help very much to find out how members in Eldorado feel about the ground-based solar collectors that are going up in Eldorado. Please pass this survey on to other Eldorado members. Thank you.

Name:___________________________________________
Address:_________________________________________

Please feel free to add your personal comments or questions re solar in Eldorado.

Monday, October 14, 2013

Suggested New Architectural Committee Review Procedures And AC Recommendations For Rooftop Solar Installations (Only Rooftop Solar Allowed)

Suggested NEW AC Review Procedures and AC Guideline Recommendations for Rooftop Solar Installations: (Only rooftop solar can be allowed, as per our Covenants, unless members agree to allowing other forms.)

1) The AC will require the homeowner's actual PNM receipts for one full year, which will be copied for the record;

2) The AC does the actual calculating for the system size for the home, based on PNM's formula, below, never to exceed a 5 kilowatt system. "A practical size for an Eldorado home (3 KW of generating capacity) is estimated by BP Solar, a national supplier of solar panels..." Vistas Newsletter, June 2007. So, 5 kilowatt systems would be exceptional. Only the actual power for the home would be allowed.

 PNM formula: http://www.pnm.com/customers/pv/determine_system_size.htm?source=solar_home

 Once you calculate the system following the PNM steps 1-3, the result will be the size of your system in kilowatts. How do you determine how many panels you need? There are 1000 watts in a kilowatt. Solar panels are in watts. Each individual panel can be 250, 327, or 450 watts, etc. So, if your system is a 4 kilowatt system, that would be 4000 watts. You then divide the watts per panel you want to use....let's say a 327 watt panel, into 4000......4000 divided by 327 = 12 panels. This is the number of panels you need. This is the formula I believe we should go by as it is tested and it is easy.

3) The AC or Compliance, not the installer, should notify all surrounding lot owners of the rooftop solar installation being approved. It is considerate to members.

4) The AC makes sure the installer has an ECIA permit for the installation and an installation permit from Construction Industries Division as well.

5) The AC inspects the installation plans to confirm rooftop placement and number of panels. Rooftop solar is effective(undisturbed solar access), reasonable(there is no screening required), there are no precious trees cut down, and is in accord with our Covenants.
  
6) All records/plans must be open to all members, upon request, for inspection. Members have a right to all the records of the ECIA.
53-8-27. Books and records. All books and records of a corporation may be inspected by any member, or his agent or attorney, for any proper purpose at any reasonable time. - New Mexico Non-Profit Corporation Act. It is a right of every member of the ECIA.
** With our long sunny days in the Summer, all solar collectors will net meter through PNM to store energy credits for member's use during colder months.

Regarding roof loads:
  
I spoke with CID (Construction Industries Division) and was told that the installer must confirm/show several criteria re the roof/home and the solar load when they apply for a permit to install. The load information is provided by the manufacturer of the solar collector and frame/rack being installed. The Solar Designer puts the information together to design the rooftop installation. I called Positive Energy in Albuquerque and spoke with John, their technical designer. He was very helpful and generous with his time and information. He told me first, that an installer company must have an EE98 electrical license as well as a general contracting license with the State. Here are the criteria for install on a roof that must be met to receive an install permit:

          * the roof must have maximum 24" (on center) trusses/joists
* home must be of typical construction
* there is one roof layer
* the mounting structure (roof install) must have been permitted in the past
If all the above criteria are met, there is no engineer needed. He said each home is a case by case basis but, most homes fit the above criteria and there is no load problem with installing a solar system on their roofs. He explained there are two types of racking to install solar panels. One is bolted down at 48" and the other is ballasted. Ballasted is not bolted but uses weight to hold down the solar panels so, it requires more strength from the roof. I asked him about leaks with rooftop solar and he said they have never had a leak with a rooftop solar installation. There is a 50 year sealant that does the trick.
A bolted system spreads about 4 - 5 pounds per square foot (psf) and a ballasted system spreads about 5 - 10 psf.
He also said the standard angle of a solar panel is 15 degrees, which rises about 18" above the roof. At our latitude, the angle height is ideal at 30-35 degrees, which rises approximately 3.5' above the roof. He said this is the ideal angle but, panels will still work very well at the standard angle, or in between.
They also do installations on spanish tile roofs.
Sheds ( A personal peeve of mine)

* I also believe our AC should rewrite the guidelines regarding sheds. We allow lot owners to have all the sheds they want? Sheds are provided in our Covenants so the AC can clarify restrictions regarding them. So, why not:

a) Require them to have a solid foundation so animals don't build homes under them and they will look more permanent and neat next to the home;

b) Require they are installed within 20 feet of the home...period.

c) Require only ONE 10 x 12 shed per lot owner...it's plenty. If the lot owner needs more, they should rent storage.

Our AC recently approved a huge 97 foot x 12 foot shed that is a huge prefab barn. It is 3 sheds made into one. It just happened to be delivered while I was weeding goat heads in the area. I went to see where they put it the other day. They dragged it over a bunch of trees on the side of their house. Why did our AC allow this? I phoned our Compliance Rep as soon as I saw it being delivered and took pictures. He told me it was going to be made to look like the home...we shall see.

Please feel free to email me. I always welcome your comments, suggestions, and questions.


Sunday, October 13, 2013

Why Are Ground-Based Solar Installations & Trackers Being Allowed In Eldorado When Only Rooftop Solar Is Provided In Our Covenants...

I would like to say that we have a problem with ground-based solar arrays, trackers, and large solar installations being approved in Eldorado. Our Covenants only say "Roofs.....may include solar panels..". Every time I have attended our AC meetings in the past two years questioning these arrays and trackers, I have been told that there is a 'federal law' that prohibits us from not allowing anyone to have any amount of solar they want. This is not true. I have been seriously researching all this in the last two weeks and discovered that in 2009, the Solar Energy Industries Association pushed hard for a federal version of the Solar Rights Act. It was HR2454 - The American Clean Energy and Security Act of 2009. It adjourned sine die in 2009. (The bill was adjourned without assigning a day for a further meeting or hearing.)

The only law that effects solar within HOA's in New Mexico is the Solar Rights Act, which is a State law and simply prohibits all residential common interest subdivisions, like Eldorado, from prohibiting solar collectors, which Eldorado never has. But, the law does not prohibit HOA's from reasonably imposing dimensions, screening, and placement requirements, as we always have. It just says that those requirements cannot 'effectively prohibit' the installation. In other words, we cannot require screening that is so costly it makes the purchase of the solar collector too expensive, and, we cannot require placing a solar collector in an area that would make it inefficient, such as in the shade. Last Summer, I emailed Senator Wirth to inquire about HOA's and the Solar Rights Act. He was kind to email me a legal Opinion from our Attorney General, Gary King, that addresses the Solar Rights Act and HOA's. It was written in February of 2011. Here is a link to his Opinion piece on this blog:

http://eldoradogadfly.blogspot.com/2013/10/attorney-general-gary-kings-legal.html

Within his Opinion piece, Mr. King cites two case laws. Below please find a link to the Garden Lakes Assn. v. Madigan in Arizona case law, which clarifies examples of the phrase 'effectively prohibits'.

http://azcourts.gov/Portals/89/opinionfiles/CV/cv000570.pdf

I have researched our Eldorado Vistas from 2006 to the present, looking for articles on rooftop solar collectors and solar in general, and found some very interesting information. I found two articles on rooftop solar that include opinions from two solar installers, BP Solar and Positive Energy, who both state that the majority of homes in Eldorado only need a 2 - 4 kilowatt system, which would be 6 - 12 solar panels that are 327 watts each. These would easily fit on any roof in Eldorado. The beauty of rooftop solar is simple... there is complete solar access to the sun, you do not have to cut down trees to install the solar collector, there is no screening required, they are not a huge eyesore to neighbors, and members get an adequate system for their home.

There has been a move in our AC and previous Boards in the last several years that has been followed by subsequent Boards to allow ground-based solar arrays, solar trackers, wind turbines, and more recently, x-large solar installations.....based on false information that there is a Federal law that prohibits HOA's from regulating the size of a solar installation and also based on an agenda to make Eldorado a 'model' solar community. This began at the same time a group of members tried to push poultry/livestock on Eldorado by our Board simply passing guidelines, instead of taking it to a member Covenant Vote.....which we eventually did do for poultry/livestock and members confirmed they want Eldorado to remain poultry/livestock free, as stated in our Covenants. Instead of the AC and Board (at the time) taking the question of whether members wanted to allow ground-based arrays, trackers, and wind turbines within Eldorado, they simply passed guidelines, which only requires a Board vote, and circumvented the Covenant vote process. However, when they did this they were aware of what they were doing. As our Attorney stated in a 12/2009 letter to our Compliance Rep, in which he replied to an inquiry re whether the AC could approve the first ground-based array based on our Covenants. Mr. Hays says, "As you are aware, Guidelines can only interpret or clarify Covenant provisions, but cannot add new restrictions that go beyond the Covenants".

Recently, the first 48 panel ground-based solar installation was approved on Conchas Court. I did not know it was 48 panels at first. I have been trying to get our Architectural Committee and our ECIA Board to include the number of solar panels up for approval in the AC and Board Minutes, but, they have still not included this information...transparency?  Jan Pietrzak, a Board member and our AC liaison from the Board, who was a AC member prior to being appointed to the Board, said that the installation was a perfect fit in the lot owner's yard.....nestled back within the trees. Well, I went to visit my neighbor to see if I could go behind his house to see this installation. He was happy to talk about it as he said he did not receive a letter notifying him about it. I could not believe the size of this installation in a backyard and almost went into shock! The TWO arrays are a massive 42 feet long, each! They are approximately 16 feet high, and from the front of one array to the back of the other array is 16 - 20 feet. Oh yes, and.....it would've been nestled within the trees as Mr. Pietrzak said....if the lot owner had not cut them all down!! There were a minimum of 16 trees I counted that were cut down.....there was a large stack of wood and a fresher cut tree has a blonde color, not weathered to grey yet. This installation shows gross negligence on the part of our AC and the Board who approved such an installation in Eldorado, and unfortunately, our present Board just approved a second. You can click on it to see it enlarged:



This installation contains 48 - 327 watt panels that are 3 1/2 feet wide x 5 feet long. It could power 6 - 2 kilowatt solar system homes, 5 - 3 kilowatt system homes, or 4 - 4 kilowatt system homes. This could be referred to as a solar farm, which can be small, like this (if you want to call this small) to 10 megawatts, 1 million watts. There is a bill in our State legislature that was introduced in February 2013. It is Senate Bill 394 - Community Solar As Distributed Generation. It is a bill to allow solar farms, sized as the one above and larger, to be able to 'lease' energy out to their neighbors. The bill was written and introduced by Senator William Soules. I spoke with Mr. Soules and he said the bill will come back up in the legislature in 2015.

 UPDATE: 10/18/13 - I recently found out the owner of this huge installation said he is selling his extra electricity back to PNM...that is, to make money, so that is why the size. I understand this but, in a residential subdivision with Covenants, allowing lot owners enough solar for their home, without selling it back, seems to be enough, do you think? PNM is only offering 4 cents a KW now so it doesn't even make cents.

At our last Board meeting, September 19, 2013, I learned that another 48 panel installation [exactly like the one pictured above], was planned to be approved at Avenida de Compadres. I was surprised to see the installation was already on the agenda for approval by our Board that evening. I asked the Board to table the installation for a month as they had not stated the number of panels in this collector in their agenda, and have the AC include the number of panels in their Minutes as well, so members would have a chance to comment on the size of this installation. The vote went forward. The 48 panel installation passed. The vote: Karyn Muensey - YES; Todd Handy - YES; Jan Pietrzak - YES; Pam Henline - Abstain; David Perlmutter - Abstain. Dag Ryan, our Acting Board President did not have to vote as there was not a tie to break.

The following day, I decided to call the installer of this second 48 panel solar installation at Avenida de Compadres that was approved at the above Board meeting. He told me the reason why the lot owner needed so many panels was because the home had electric heat. (This is exactly the same reason the AC gave me for why the first 48 panel solar installation at Conchas Court was so large.) I told the installer that these installations were much too large for Eldorado. He told me there is a 'federal law' that prohibits HOA's from stopping anyone from having the amount of solar they want. I asked him to cite the law and he said the 'Solar Rights Act'. I explained this was not a federal law, it is a State law and it does not prohibit HOA's from reasonable regulation. Saying there was a federal law could be considered misrepresentation.

Summary: A group of members on our AC have been acting with impunitive authority for several years. They told our Board(s) what their interpretation of the Solar Rights Act says, or, what the solar installers were saying, and our Board(s), without doing their due diligence by making some inquiries, accepted their interpretation. This is when there should have been some research and the question of whether members want to allow ground-based installations, trackers, and wind turbines, taken to a Covenant vote.

It's been a nice little deal for solar installers... It began with the beginning of the SERA Board who set the precedent by tearing up the old AC guidelines on solar, causing our old AC to walk out en masse in April of 2010. The Board then appointed an ad hoc 'sustainability' committee, made up of SERA members (who later became the SPE Committee), to rewrite the AC guidelines regarding solar and also added wind turbines.

Here are some quotes from our Vistas Newsletters I found while doing some research. I'm including a link to our Eldorado website if you want to look up the articles to read them in their entirety.
http://www.eldoradosf.org/index.php/Vistas/vistas-newletters.html

* June 2007: Land of Solar Enhancement: "A practical size for an Eldorado home (3KW of generating capacity) is estimated by BP Solar, a national supplier of solar panels, to cost about $25,000 after federal tax credit..."

* October 2009: Eldorado Carbon Busters: "Our vision is for Eldorado to once again become a national model in its use of energy. We're pursuing this goal through educational outreach and action with the community". - Dana Richards, Deborah Boldt for Conservation Committee

* January 2010: From Passive to Active: "How can we take the vision of a solar community to new heights?" - Dana Richards, Deborah Boldt, John Parker

* July 2010: ECIA Ad Hoc Committee on Renewable Energy: "An ad hoc committee was formed in the wake of the Architectural Committee's discussions of solar array installations and the limitations implied by the ECIA Covenants and Guidelines." - Dana Richards, Tom Willmott

* June 2011: Board Approves Revised Guidelines: "This revision was a culmination of well over a year's worth of collaborative work between the ECIA Architectural Committee, ECIA staff, ECIA Board of Directors, and the Ad-Hoc Sustainability Committee."

* June 2011: "New Sustainability Committee Formed: "The Board of Directors approved the formation of the Sustainability, Planning and Education Committee at its April meeting. The purpose of the committee, as described in the charter, is to support the Board in implementing a strategic plan for sustainability in Eldorado." - Gregory Bundrick

They say hindsight is 20/20...

Our AC has basically handed over full authority to the solar installers to say what size system the lot owner needs/wants and even notifying nearby lot owners, which they haven't always done. Kind of like the fox guarding the hen house, don't you think?

Why the big push? Well, Santa Fe County and Santa Fe City invested in an economic feasibility study in 8/2011 for a large community owned solar utility that will power us all at very low rates. It's a great idea but will take money and the right space. I had suggested to Craig O'Hare at the County's Renewable Energy Office, to perhaps place a small tax vote on a referendum ballot to save towards this endeavor. The State bill I mentioned above, S394, is also needed to pass to allow this and will be making a comeback in the legislature in 2015. PNM will also be building more huge megawatt solar systems in the State to fulfill its mandatory requirement with the State to provide 20% of its energy to residential customers from renewables by 2015. So, in a few years, it is feasible that the energy coming over our PNM grid will be coming from solar!

Bottom line.....we all love solar and recognize its many virtues. But, we live in a residential subdivision with Covenants that for 36 years has allowed solar collectors on our rooftops...but does not mention ground-based arrays, trackers, and wind turbines. Instead of our AC and Board (at the time) exercising their fiduciary responsibility and coming to members to ask if we wanted to take a vote to amend our Covenants to allow other forms of solar other than rooftop, they did as they wanted and passed new architectural guidelines for solar. In the last few years, members have seen these large ground arrays going up, and trackers going up. They contacted our General Manager and Office staff with their concerns. As I have seen the installations getting extremely large, I decided to look into this issue and present what I have learned to members. I truly hope that a dialogue can begin, hopefully in a forum setting, where this issue can be discussed with members.


Since I read my comments at the September Board meeting, as well as at our recent Community Forum, our ECIA Board and AC are considering new solar guidelines. I came up with some recommendations and forwarded them to the AC and our Board. (you can read in another post)

We wait to see what our Board and AC are going to do, now that incorrect information has been clarified. Above is another picture of a 44 panel solar installation at 24 Moya Loop. There are almost two rows of panels, you can only see one . These are not appropriate residential systems, and Eldorado is not a subsidiary of PNM....we are a 'beautiful rural residential community' and we must always be vigilant to keep it that way. If you made it all the way through this post, I thank you!!

Please stay tuned......










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