Associations in an Environmentally Conscientious Era (Oregon Law)

Over the last number of years, we have seen policy trends in cities and developments in an attempt to become more “green” as a community. Homeowner associations and condominiums are a prime example, and are recently—as a whole–considering alternative energy sources. In some communities, boards of directors are even receiving requests from owners to install solar panels or use clotheslines instead of dryers. Now, numerous online resources, such as www.caigreen.org, aim to help associations incorporate more environmentally friendly practices in managing their communities. These websites include articles, discussion forums, reports, and programs that suggest new ways to conserve energy, as well as encouragement for associations to protect the environment.

That being said, there are currently plenty of examples from the past few years to show that some associations are still struggling to adopt the current trends, and others are prohibited from becoming more environmentally conscious because of their governing documents. For example, a homeowner association in Minnesota recently rejected an owner’s application to install solar panels on his property because “what was proposed wasn’t aesthetically pleasing in keeping with the standards of the community.” Similarly, a New Jersey homeowner association forced an owner to take down 28 solar panels he had installed only nine months prior. In California, an owner had to turn to suing his association when it would not allow him to install solar panels on top of his house. Also, in Dallas, an association sued an owner who installed solar panels in violation of the association’s restrictive covenants.

Generally, associations may restrict owners from installing solar panels and other green devices if the governing documents do not allow for them. However, some states, including California, Arizona, Florida and Colorado, currently have laws that do not allow associations to prohibit the use or installation of energy-conserving devices outright. Rather, such restrictions are only valid as long as they are reasonable. For example, Colorado’s “HOA Bill” provides that reasonable aesthetic restrictions are allowed if they do not significantly increase the cost of the device, or significantly decrease the device’s efficiency. As a result, even in those states with solar rights laws already in place, associations still retain some control over which devices may be installed or used.

If you are an owner who is considering an alternative energy device, or you are on the board and have received a request to install an alternative energy device, a thorough review of the association’s governing documents must be done in order to evaluate what the association can and cannot approve. If you are in an association with prohibitions on alternative energy sources, you may want to consider amending the documents to provide for such devices.

Last legislative session, a bill was introduced that provided for an override to prohibitions in governing documents of alternative energy sources. However, the bill was opposed because it was too broad. With that being said, because going “green” is gaining more and more popularity, it is likely that we will continue to see legislation introduced that will provide for alternative energy sources.