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......










2 comments:

  1. I asked the ECIA manager why the covenants only mentioned roof-based solar installation and he said that the original covenants that you so ardently refer to were adopted in 1972. There were no installations of solar electrical generation of any substance going on a that time so your reference to only those un-amended covenants is inappropriate. Subsequently, the board presented amended the covenants in 1995 and that was voted on by the members (not sure who those members are). To me, that authenticates the determination that ground-based, roof-based, tracker type, and wind turbines are permitted in Eldorado with approval by the Architectural board. Your attempts to put forth a survey thinking that the majority (how would you determine that?) of Eldorado residents would not agree with something passed in 1995 and in-force since then, is ludicrous. Look at the number of residents that voted on that stupid chicken deal........small numbers. I'll bet that most of those that didn't vote really didn't care, but it's hard to say.

    The ECIA has checked with their attorney's on the subject of the solar guideline and it has legal approval. Why do you insist on chewing on this to excess? My bet is most residents don't care what you think about ground-based vs. roof-top arrays and would readily agree with the logic that dictates they be ground-based. The 48 panel installations you refer to were put in with the number of panels required to cover the all-electric requirement of those homes, not to "make money". You have no proof to that they were not so your arguments are spurious and just meant to agitate. Have you nothing better to do?

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  2. Hi, Our Covenants have always stated rooftop solar and have never been amended or voted on to allow any other kind of solar. The group that infiltrated our Board and tried to write guidelines to allow poultry/livestock also wrote the present solar guidelines in 2011. There was never a member vote on whether members wanted to amend our Covenants to allow ground-based solar. I do not know what you are referring to re 1995. My survey is to get an idea of what members want or don't want with regards to solar in Eldorado, and what their personal experiences may have been with any neighbors who installed a ground-based solar installation. Then I'll show it to our Board.

    Why am I doing this? Because what is happening in Eldorado with ground-based solar installations is serious as it is having a direct effect on some member's property values. And, they seem to be getting bigger. The 2011 solar guidelines were passed with only one meeting for member's to voice their opinion and according to the Vistas, it was a very contentious meeting. Instead of our Board, at the time, doing the responsible thing by taking the issue to a vote, they approved the new solar guidelines and many members did not even know.....until they started seeing solar trackers and ground-based arrays show up in Eldorado. They called the Office to ask about them, report them, and complain about them but they have been ignored. That is not how a residential subdivision with Covenants works. Members are the stakeholders and have the right to decide what they want to allow and not allow as it is our property values at stake. Members were never given that opportunity. I believe it is time. I would like to see a Covenant Vote on the issue. If the vote doesn't receive enough votes to amend our Covenants, it will at least give a very good idea of what members want and that should lead our Board and AC to do the right thing by members.

    Yes, I have read the attorney's letters and he has clearly stated that we can reasonably regulate and the Solar Rights Act Opinion from our Attorney General, also allows us to reasonably regulate. I do not know about those 48 panel arrays but, they should never have been allowed in Eldorado. If you are so sure that members would vote to allow ground-based solar then why are you so bothered by my taking a survey about it? I think our members deserve the chance to decide and what they decide will be fine with me, because it will be the community that decided, not our AC or our Board.

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