Can HOAs stop you from going green?

As a nation, we are all becoming more conscious of the need to be energy efficient and energy independent. The Obama administration says that it is making this a priority, and many private and public construction project owners now insist that projects be LEED certified at some level. Wind turbines and solar panels are popping up all over the country. However, the appearance of these environmentally-friendly installations is not always harmonious with an environmentally “pristine” appearance. (The cell tower industry has taken to disguising its towers as pine trees, or renting space in church steeples, to avoid public opposition.)

What does a property owner do when a homeowners' association, office park or condominium association objects to such environmentally-friendly structures? It depends on what the property owner agreed to, what the property owner wants to do and the law in the property's locale.

Restrictions on property use can come through public regulation, such as zoning ordinances and building commissions, and through private agreements. Homeowner associations derive their power from the “covenants” that they file of record, so that they are available to all to see when they are initially set up, and individual property owners sign contracts agreeing to those terms.

Once people have started to purchase property, the HOA won't be able to change the restrictions without a vote. It is very common for these HOAs to specifically restrict a property owner's right to vary from set permitted actions with respect to the exterior of the structure. The whole justification for these restrictions is that they are designed to protect property values, enhance security or avoid nuisances.

At the same time, every restriction is, at heart, an interference with private property rights, so the courts at some point will intervene. Lawn or window signs endorsing political candidates will probably get more legal protection under the First Amendment's freedom of speech than, say, garden gnomes. Religious displays at Christmas will probably be cut more slack than wrapping a house in black crepe paper for Halloween. It is a balancing act, and it often takes years for the process to work itself out in a community.

Courts usually look at the following factors when deciding whether to uphold restrictions:

• Was the specific item addressed in the signed and filed documents, or is this an “interpretation” by the association or one of its committees? It is more likely that solar panels are specifically mentioned in covenants than windmill towers. That means the board or committee is interpreting the covenants, and that will get the restriction less support in court.

• Is the offending item encroaching on the rights of others (i.e., loud music, trucks parked on the street obstructing visibility)? This will depend on the size, number and physical characteristics of the item. Windmill towers are pretty hard to ignore, but some solar panels can be small in scope and lie flat on a pitched roof while others look like they are powering a small nation.

• Is the offending item associated with free speech, such as a religious or political display? That is hard for me to envision with eco-hardware, but I am sure some creative lawyer has come up with a theory that associates this with a political movement.

• Is the offending item likely to adversely affect property values? This takes “expert testimony.” Some potential buyers/tenants may be attracted to a community that puts its environmental money where its mouth is, so to speak, but the people who want to keep the objects out clearly think they will hurt property values.

• Does the restriction serve a useful purpose or is it just arbitrary? Again, this is a call by a judge.

• Has enforcement been consistent and uniform up until now?

• Are there any laws or codes supporting or opposing the HOA's position? More and more, people who do not want HOAs to interfere with the use of their own property are resorting to legislation that actually restricts what an HOA can do.

So where do the unsightly towers and solar panels fall? Solar panels have been around longer, at least in the residential context, so it is more likely that they may be specifically prohibited by written documents that the homeowners have accepted or covered by laws that won't let an HOA interfere.

It may be that the homeowner has to keep the panels to a certain maximum size or height. If the property owner feels that the HOA is being overly restrictive, the owner has three choices: obey the HOA, go to court (or refuse to obey, and the HOA will probably take the owner to court), or see if the law can be changed to protect the activity. The property owner also has a fourth choice: move.

Susan McGreevy is a partner at Stinson, Morrison, Hecker LLP, Kansas City, Mo., 816/842-4800, e-mail to [email protected].