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| Here's the house in question: What do you think? |
Today the N.C. Supreme issued its ruling in favor of the homeowners in the case concerning the HOA’s authority to prohibit solar panels on the front of a home via an architectural review decision as opposed to where such panels are specifically prohibited in the recorded restrictions for the HOA. The decision by the Supreme Court overruled both the trial court’s and the Court of Appeal’s decisions. The Court was divided 4-3 and the opinion includes strong dissents by three conservative justices including the Chief Justice.
The case involved the interpretation of N.C. Gen. Stat. 20B-20, which generally prohibits unreasonable restrictions on the installation of solar collectors, but which contains a very specific exception in subsection (d) thereof allowing homeowners associations to prohibit solar collectors on the fronts of homes. That exception reads as follows:
(d) This section does not prohibit a deed restriction, covenant, or similar binding agreement that runs with the land that would prohibit the location of solar collectors as described in subsection (b) of this section that are visible by a person on the ground: (1) On the facade of a structure that faces areas open to common or public access; (2) On a roof surface that slopes downward toward the same areas open to common or public access that the façade of the structure faces; or (3) Within the area set off by a line running across the façade of the structure extending to the property boundaries on either side of the façade, and those areas of common or public access faced by the structure.
Seems pretty clear, right? In a somewhat tortured analysis, the majority determined that this language allows homeowners associations to prohibit front-facing solar panels only if the restriction appears in the association's recorded restrictions, and not if the prohibition is made by the association (or its architectural review committee, in this case) pursuant to its architectural review process, even if its architectural review is granted very wide latitude in the recorded documents, as it was in this case.
A number of liberal (North Carolina Attorney General Joshua Stein's office) and pro-solar-industry groups weighed in on the case by submitting briefs encouraging the Court to overrule the Court of Appeals, and it appears that the decision had an unenunciated policy basis behind it aimed at encouraging the use of solar power, which is admittedly the stated intention of the statute.
In our mind, the dissent (and the Court of Appeals) makes the better argument, and of course we are in general in favor of decisions which support rather than limit community associations' authority to determine what is best for their neighborhoods. But like it or not, the decision of the majority controls, meaning that HOAs now do not have authority to prohibit solar collectors on homes unless that authority is specifically set forth in the HOA’s recorded restrictions, or an amendment thereto - the decision cannot be simply based on the HOA's architectural review authority. The case is Belmont Association v. Farwig.
Contact us if we can assist your association in implementing its own enforceable restrictions and rules and regulations.
