Solar Panels And Community Associations: Sparks Can Fly

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Solar Panels And Community Associations: Sparks Can Fly

Green living sometimes can be at odds with community association living. As much as we all likely strive to live in an environmentally responsible manner, sometimes these ambitions clash with the wants and desires of our neighbors, bringing strife and dissension to a neighborhood. Though the Washington legislature has not attempted regulating chickens, clotheslines or composting (yet), it has enacted legislation affecting a homeowner association’s right to govern solar panels within a community association.

WA State Solar Panel Regulations

Under RCW 64.38.055 of the Washington Homeowner Association Act:

(1) The governing documents may not prohibit the installation of a solar energy panel by an owner or resident on the owner’s or resident’s property as long as the solar energy panel:

(a) Meets applicable health and safety standards and requirements imposed by state and local permitting authorities;

(b) If used to heat water, is certified by the solar rating certification corporation or another nationally recognized certification agency. Certification must be for the solar energy panel and for installation; and

(c) If used to produce electricity, meets all applicable safety and performance standards established by the national electric code, the institute of electrical and electronics engineers, accredited testing laboratories, such as underwriters laboratories, and, where applicable, rules of the utilities and transportation commission regarding safety and reliability.

The statute is clear on its face and should not require much, if any, legal interpretation. Though an association cannot “prohibit” installation of solar panels, it can regulate the installation and use as described in the next section of the statute:

(2) The governing documents may:

(a) Prohibit the visibility of any part of a roof-mounted solar energy panel above the roof line;

(b) Permit the attachment of a solar energy panel to the slope of a roof facing a street only if:

(i) The solar energy panel conforms to the slope of the roof; and

(ii) The top edge of the solar energy panel is parallel to the roof ridge; or

(c) Require:

(i) A solar energy panel frame, a support bracket, or any visible piping or wiring to be painted to coordinate with the roofing material;

(ii) An owner or resident to shield a ground-mounted solar energy panel if shielding the panel does not prohibit economic installation of the solar energy panel or degrade the operational performance quality of the solar energy panel by more than ten percent; or

(iii) Owners or residents who install solar energy panels to indemnify or reimburse the association or its members for loss or damage caused by the installation, maintenance, or use of a solar energy panel.

The statute goes on to explain specific terms and also provides definitions to clarify how an association can effectively apply the statute. Lastly, the statute applies retroactively to association governing documents in effect before the 2009 law was passed and signed.1 Any provision in an association’s governing document that is inconsistent with the statute is void and unenforceable. The statute expressly does not apply to community association common areas, which implies that an association is free to regulate in any reasonable manner the use or prohibition of solar panels in these areas.

Adopting Solar Panel Rules

Since the law is comprehensive and clear on its face, homeowner associations should adopt solar panel rules that track closely the statute. Because an association is not prohibiting, but merely regulating, the use of solar panels, the rules can be adopted via the board’s rule-making authority, and need not be included within an association’s Declaration or CC&Rs.

The statute only applies to homeowner associations in Washington; thus, condominium associations appear to have full discretion in regulating the installation and use of solar panels within their communities. It is uncertain how a court might respond to a suit by a homeowner seeking permission to install solar panels on the roof or deck above her unit. Though condominium associations ordinarily have wide discretion in controlling and regulating common and limited common elements, some judges could be persuaded by a public policy argument favoring the use of green energy.

The safest route for a condominium association would be to get in front of any potential dispute by adopting a resolution that expressly bars the installation of solar panels, whether attached to a unit or limited common element. Conversely, some condominium associations may lean the other way and wish to install such panels and devices on the common elements or limited common elements. Whatever an association’s preference, they should draft and adopt rules and regulations before contentious disputes arise and sparks fly.

1 The complete statute may be found at: http://apps.leg.wa.gov/rcw/default.aspx?cite=64.38.055.

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WSCAI Names Mary Helen Roberts as Legislator of the Year

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WSCAI Names Mary Helen Roberts as Legislator of the Year

State Representative Mary Helen Roberts (D-Lynnwood) has been named WSCAI’s 2011 Legislator of the Year. She will be recognized at the annual CA Day event on September 24 in Bellevue.

Roberts prime sponsored House Bill 1309 which clarifies and expands the reserve study disclosure requirements for condominium owners and extends the law to homeowner associations with significant assets. The WSCAI Legislative Action Committee (LAC) worked closely with Rep. Roberts on the bill.

“Representative Roberts went above and beyond for the homeowners this session,” said Jeremy Stilwell, WSCAI LAC Co-Chair. “We are fortunate to have her knowledge and tenacity working on behalf of homeowners in Olympia.”

As a condominium owner herself, Rep. Roberts was able to share her personal perspective on why disclosure of such important information is critical to the financial stability of a community association.

“We are thankful for Representative Roberts’ ongoing advocacy for the homeowners of this state,” said Michael Brandt, WSCAI LAC Co-Chair. “Her firsthand knowledge of living in a community association and understanding the need to provide transparent disclosure of such important financial documents is immeasurable.”

HB 1309 passed the House of Representatives 95-1 and the Senate 48-1. The bill takes effect January 1, 2012.

Legislature eager to address major revisions to common interest ownership statutes

In June the House Judiciary committee held a work session in Olympia to get an update regarding developments from a group of attorneys who are preparing to submit a substantive update of the Condominium and Homeowner Association Acts to the 2012 Legislature.

The group, now a subcommittee of the Washington State Bar Association (WSBA) Real Property Section, commenced its effort in the spring of 2009 to thoroughly review the Uniform Common Interest Ownership Act (UCIOA), which was adopted by the National Uniform Law Commission. The WSBA group consists of developer attorneys, an individual homeowner attorney and a community association attorney. While there are a few attorneys that have taken the onerous task of drafting the legislation, stakeholders, such as WSCAI, are included in the larger participant group that will offer feedback on the work product as it is developing.  The benefit of adopting some form of UCIOA in Washington State is to provide a model set of laws to govern condominium, cooperative, and planned unit development communities. The passage of such legislation will provide consistency and clarity to those living in and governing these communities.

WSCAI will actively be monitoring and participating in these discussions, so stay tuned for updates.

Efforts to license Community Association Managers could be on the horizon

Legislation took effect in July 2010 that redefined much of the real estate licensing laws. Although there were attempts to add community association management to those duties of a licensed real estate broker, WSCAI was successful in having those references eliminated from the final legislation.

In late 2010, the Department of Licensing received inquiries on whether or not Community Association Managers (CAM) needed to be licensed as real estate brokers. Because there was no specific definition of what a CAM is, or that it is specifically not a real estate broker, the Department is working with WSCAI in seeking clarification. One of the options to avoid having to require CAMs to be licensed brokers is to create a separate licensing requirement for CAMs. WSCAI will be presenting an update on this issue at CA Day and will be updating members accordingly in the Journal.

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