Dick Cunningham and Walter Rozycki need to do what plenty of different Denver-area householders have finished: put photo voltaic panels on their roofs. However the Aurora residents say their house owner affiliation board pulled the plug on their plans in defiance of state regulation.
An lawyer and photo voltaic advocate who wrote an modification to a law on HOAs and solar systems stated the board on the Villas at Cherry Creek is flouting the state regulation designed to guard folks’s proper to make use of photo voltaic power to energy their houses.
The lawyer for the HOA stated the board’s place has been misrepresented and that the board’s coverage is according to state regulation.
In the meantime, Cunningham and Rozycki say they’ve been ready for a decision. Each are former presidents of the HOA board and each submitted their preliminary functions greater than a 12 months in the past to place photo voltaic panels on their roofs.
Each had been turned down.
“I need to do that for the great of the atmosphere, not a lot to economize. The saving of the cash is down the street,” Rozycki stated.
Rozycki, like Cunningham, wished to lease reasonably than purchase the photo voltaic panels and tools. The HOA board’s coverage on photo voltaic, written in 2021 after Rozycki and others introduced up the topic, consists of a number of necessities that Rozycki and Cunningham stated are “excessive.”
The coverage additionally prohibits householders from leasing photo voltaic panels. The rationale? The HOA stated its insurance policies don’t permit homeowners to lease a portion of their houses to 3rd events for industrial exercise.
“We’re not the lessor, we’re the lessee,” Cunningham stated. “That is no completely different than Xcel Power placing a meter on your own home. The board’s interpretation could be you’re leasing a portion of your wall.”
The subdivision’s 100 houses are duplexes the place photo voltaic panels have been authorised on a few houses. The HOA maintains the rooftops, however the residents personal them. Rozycki sought recommendation from lawyer Roger Freeman, who makes a speciality of environmental and power issues, after working into obstacles.
Rozycki stated he not too long ago capitulated on the leasing controversy. After his first software was rejected, he submitted one other one, this time saying he’ll purchase the solar-energy tools. The board authorised the brand new plan.
Nonetheless, the board voted in early November towards Cunningham’s plan to purchase a photo voltaic system, citing engineering and insurance coverage points.
The board’s photo voltaic guidelines are “so exterior the bounds of the HOA Photo voltaic Legislation that they’re clearly unlawful and unenforceable beneath the regulation,” Freeman wrote in March to the householders affiliation.
In 2021, Freeman helped write an modification to state legal guidelines known as the “Photo voltaic Invoice of Rights.” A provision he wrote offers slender exceptions to a broad prohibition towards HOAs interfering with set up of photo voltaic power methods.
One exception permits “cheap restrictions” on the dimension, placement or exterior look of kit so long as they don’t improve the price or lower efficiency by greater than 10% and the overview is capped at 60 days. One other permits “bona fide security necessities” associated to a constructing code or a acknowledged security commonplace.
Within the case of the Villas at Cherry Creek, the principles are “cumbersome, overreaching, unlawful and unenforceable,” stated Freeman.
Cunningham and Rozycki stated that they had to offer a report of a 12 months’s value of their electrical energy use and insurance coverage info. The board even steered design modifications, stated Cunningham, who bought permits from the town however was turned down by the HOA board.
The HOA’s guidelines transcend aesthetics to intrude into the expertise, development and design, Freeman stated. The board doesn’t have the authority to impose a rule that residents use “the latest expertise out there,” he stated.
Freeman stated the board additionally lacks the authority to mandate that residents purchase reasonably than lease a photo voltaic system. That’s a private determination that has nothing to do with aesthetics or security, he stated.
And a ban on leasing the tools leaves out individuals who don’t have the upfront cash, Freeman stated. The leasing mannequin “broadens the tent for photo voltaic,” he added.
“These are of us who need to energy their houses and ultimately their electrical automobiles with the solar. It’s their roof, which is their property,” Freeman stated. “The larger problem is that the state and so many different governments and different entities have determined and advised us that we have to make a conversion to renewable power sources.”
And the state has specified the bounds of HOAs’ authority, Freeman added. Current legal guidelines have offered extra protections for householders when HOAs transfer to foreclose on properties. A 2021 regulation prevents the associations from limiting residents’ use of xeriscaping.
Freeman stated it’s frequent for questions to return up about HOAs’ oversight of solar-system installations.
“They may usually say they don’t need to see it from the road. Nice, however the solar’s shining on either side of my home. If I put it simply on the again of my home, it’s 50% much less environment friendly. You’ll be able to’t make me try this,” Freeman stated.
Freeman stated the Stoney Brook Owners Affiliation in Denver revised its guidelines after the state regulation was up to date. Stoney Brook’s coverage was promoted as a template for the Villas, however Freeman stated the suggestion went nowhere.
“Frankly, I feel it’s a case the place there are of us on the board who’ve been doing this for a very long time, are used to a sure stage of oversight and management and have their very own views about photo voltaic,” Freeman stated.
The HOA board members didn’t return requests for remark. The board’s lawyer, Lynn Jordan, stated in an interview that critics have misrepresented the board’s place.
“Purposes have been authorised, tweaked or withdrawn,” Jordan stated of residents’ photo voltaic plans. “If we are able to make it work, we do.”
Jordan believes the HOA’s coverage follows state regulation. “When the regulation modified we realized we wanted to do a coverage and clearly it needed to be lawful.”
As for whether or not residents can lease the photo voltaic tools, Jordan stated, “We don’t care in any respect how they purchase it.”
However in an April letter to Rozycki, Jordan wrote that residents can’t host any third-party enterprise “whereby a 3rd occasion installs, owns and operates an power system on any portion of the Residence.”
In consequence, Rozycki stated he has gone to Plan B. “I’ve given up the lease method and I’m shopping for it as a result of they received’t budge.”
