The Texas legislature ended its biennial session in June and while there was no progress by way of support for renewable energy in general or even clarification of current RPS regulations regarding solar energy in particular, there was one bright spot. The legislation passed and the governor signed HB362, making it easier for property owners in neighborhoods with homeowners’ associations and enforceable deed restrictions to install solar energy systems.
Bans on solar energy systems are not allowed.
The law states that HOAs may not ban solar energy systems as long as those systems meet certain criteria. So an HOA- or neighborhood-wide ban on all solar energy systems is no longer allowed – each system will stand on its own merits.
The criteria are quite reasonable and most are already met by any well-designed residential PV or Thermal system. First, the system must be either on the roof or within a fenced area of the property. Roof mounted systems may not extend above the roofline or be mounted at an angle other than parallel to the roof pitch. Ground mounted systems may not be taller than the fence. Next, all the materials, module frames, conduit, mounting hardware and wiring, must be, “a silver, bronze, or black tone commonly available in the marketplace”.
Power Production Rules
The law also makes provision for systems to be installed in areas other than those designated by the HOA. If the property owner proposes an alternative site other than the area designated by the HOA and can show that power production at the alternative site exceeds production at the designated site by more than 10%, the HOA cannot ban the installation of the system. Determination of production is based on modeling using a publicly available modeling tool provided by NREL (PV Watts).
The Potential Loophole.
According to the law, “The HOA may not withhold approval unless the system constitutes a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities. For purposes of making a determination under this subsection, the written approval of the proposed placement of the device by all property owners of adjoining property constitutes prima facie evidence that such a condition does not exist.”
In one respect, this paragraph holds further protection for property owners who want to install solar, but turn it around and it could be quite restrictive. If adjacent property owners decide that a proposed solar system does constitute an affront to their sensibilities, they can withhold approval and thus enable the HOA to ban the system. If property owners throughout a sub-division consistently withhold approval, then solar energy systems could effectively be banned form the entire neighborhood.
The new law also makes it easier for homeowners to install high energy efficiency and solar shingles by taking away the HOA’s authority to issue a blanket ban or to specify only standard grade composition shingles. As with solar systems, however, shingles must meet aesthetic criteria which still give the HOA quite a bit of room to ban certain materials if those materials are deemed unsightly.
These are most of the major points. There are additional details, so if you are directly involved in any capacity with solar energy system installation in areas governed by HOAs, read HB362 in its original form. It’s only a couple of pages.