Tuesday, June 27, 2017 | posted by Mindy Knudsen 2:08 PM

Article by John Richards, LAC Secretary and attorney at Richards Law PC

What you need to know about new Utah Code 57-8a-701 – Solar Access in Community Associations (non-attached dwellings):
a. The law applies to “detached dwellings” which means a detached dwelling for which the association DOES NOT have an ownership interest in the detached dwelling roof.
b. Except for a limited circumstance described below, and only if expressly prohibited in your CC&Rs, a governing document (bylaws, rules, etc.) MAY NOT prohibit or restrict an owner of lot with a detached roof.
c. If language is contained in your CC&Rs here is the only “go forward” regulatory authority your HOA has with respect to solar panels or “solar energy systems:”
1. Your CC&Rs cannot impose a restriction that (based on location for example) decreases the solar energy system’s production of solar energy by 5% or less. (As you can see, this really means you can’t impose any meaningful restriction.)
2. Your CC&Rs cannot impose a restriction that would increase the solar energy system’s cost of installation by 5% or less.
3. However, you can by CC&R or a rule require that the solar energy system comply with applicable health, safety and building requirements, and if it is a solar energy system that is used to heat water, you can require that the system is certified by the Solar Rating and Certification Corporation; or a nationally recognized solar certification entity.

4. Finally, if the solar energy system is used to produce electricity, you can require that it complies with safety and performance standards established by (a) the National Electric Code; (b) the Institute of Electrical and Electronics Engineers; (c) Underwriters Laboratories; (d) an accredited electrical testing laboratory; or (e) the state or a political subdivision of the state.
5. Here are some aesthetic protections for the HOA: A CC&R or rule may be created for a solar energy system that is mounted on a roof as follows: (a) so it does not extend beyond the roof line; or (b) it can require that it has panel frame, support bracket, or visible piping or wiring that has a color or texture similar to the roof materials; or (c) if the solar energy system is mounted on the ground, you can make it so it is not visible from the street that front other lots (there are few more “things” an HOA can do such as review the application to install; and some unique rules applicable to indemnifying the HOA if such installation somehow causes a loss to the HOA but that is about it).
d. This new section 57-8a-701 will apply to an Association regardless of when the Declaration was recorded (this is what our legislative group fought hard to change and my hat is off to those that tried hard to make this part of the bill).
e. Strangely, the statute states that “this part does NOT apply to an express prohibition or an express restriction or solar energy installations if it was already in your CC&Rs and recorded before January 1, 2017; or created by official association action taken before January 1, 2017.” You’ll note that this date has already passed. I wonder how many CC&Rs already have a prohibition or restriction in the CC&Rs already – not many I would guess.
f. SO WHAT CAN YOU DO? – the statute does allow you to prohibit solar (that is, prohibit it in entirety – this is either an all or nothing proposition – you ban solar outright or you must allow it with very limited controls) but only if you vote to expressly prohibited solar energy installations by a 67% of your members – so you can amend to prohibit BUT THE CONCERN IS THAT BETWEEN THE TIME WHEN THIS LAW PASSES UNTIL YOU GET A VOTE, YOU WILL HAVE INSTALLATIONS THAT YOU ESSENTIALLY CANNOT STOP.
g. Like any amendment, an amendment to prohibit solar can be “undone” by an amendment to repeal the prohibition.
You will need to examine your community aesthetics, consistent look, uniform appeal, etc., to see how you might want to proceed. You may welcome solar, or you may want to control it – but to control you are going to have to act immediately. And unfortunately, despite our objections, the only real control is a complete prohibition.


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