N.C. law is murky on HOA regulation of solar power
This week’s column was written with the assistance of my law partner Phillip Lewis. Q: Does the North Carolina Planned Community Act have any laws regarding solar panels? A: Neither the Planned Community Act nor the North Carolina Condominium Act contain provisions pertaining to the use and regulation of solar panels. However, there is a North Carolina law that specifically addresses solar panels and the extent to which they may be regulated or prohibited by restrictive covenants. The statute is titled “Deed restrictions and other agreements prohibiting solar collectors” (N.C.G.S. § 22B-20). Unfortunately, the statute is not a picture of clarity. The first paragraph says that the General Assembly wants to encourage the development and use of “solar resources,” which includes solar panels. The second paragraph declares that any restrictive covenant which prohibits or would have the effect of prohibiting the installation of solar panels is unenforceable. In other words, restrictive covenants and HOAs may not have regulations that prohibit solar panels outright. Similarly, restrictive covenants and HOAs can’t have regulations that, while not directly prohibiting solar panels, have the effect of prohibiting solar panels. The third paragraph of the statute allows restrictive covenants and HOAs to regulate the location and/or screening of solar panels. However, regulations in regard to location and screening cannot have “the effect of preventing the reasonable use of a solar collector for residential property.” This means that the restrictions on location and screening can’t, as a practical matter, make the solar panels unusable. An example of this might be a restriction that allows for solar panels as long as they are somewhere inside the home, such as the basement. This obviously wouldn’t work. Such a provision would be invalid. So far, so good in regard to the first three paragraphs of the statute. But it’s at this point that the law becomes a little murky. Subject to the rules we’ve already discussed above, the fourth paragraph allows HOAs to restrict the placement of solar panels in three specific instances: (1) when the panel is on the facade of a structure that faces “areas open to common or public access,” (2) when the panel is located on a roof surface that slopes downward toward “areas open to common or public access that the facade of the structure faces” and (3) when the panel is located in an area “set off by a line running across the facade of the structure extending to the property boundaries on either side of the facade, and those areas of common or public access faced by the structure.” I had to read this several times to make sense of it. For starters, each of the three exceptions refer to “areas open to common or public access.” Even though this phrase is poorly and ambiguously worded, I take this to mean common areas and roads, including public roads. It seems the General Assembly intended to allow HOAs to restrict placement of solar devices where they can be seen from common areas or streets in front of the home, whether placed on the roof, on the facade of the home, or in the front yard. Yet the application of the exceptions to real-life examples can be problematic. For example, if someone owns a corner lot and has a house that faces two different streets, would an HOA be within its rights to regulate a solar panel affixed to a roof surface that faces the side street? Given the imprecise language of the statute, if there is a challenge to a restriction on solar panels by a homeowner, it is likely that the court will apply the least restrictive reading of the law. For townhomes where the HOA is responsible for maintain exteriors of buildings, the HOA may not prohibit installation of solar devices completely, but it may require that the owner pay for any damage to the building exterior caused by the installation, maintenance, or removal of the devices; and the HOA is not required to install, maintain, repair or remove the devices. For multistory “stacked” condominiums, the HOA can prohibit solar devices completely. Unfortunately, the law doesn’t directly address HOA limits for townhome-style condominiums. This column was originally published in the Charlotte Observer on October 14, 2015. © All rights reserved.