Public Act 96-1436 Requires Association Buildings Under 30 Feet Tall to Adopt A Solar Energy Policy for the Building and to Allow Solar Energy Systems To Be installed by Owners in Certain Circumstances

The Governor has now signed this Act, which will be effective, I believe, January 1, 2011. A copy of the Act is attached.

The purpose of the Act is to prevent associations from prohibiting installation by unit owners of solar energy systems, in certain circumstances.

The Act doesn't apply to buildings in excess of 30 feet in height (Section 45).

It invalidates any declaration provision, bylaw or rule which prohibits or has the effect of prohibiting the installation of a solar energy system (as defined). Section 15.

Comments: Many Use and Occupancy provisions of declarations prohibit items from being placed on roofs or exterior walls. This Act would appear to invalidate such provisions as applied to solar energy systems, subject to roof limits as mentioned below.

Under Section 20, if the solar energy system is to be placed on a roof, the association can, within certain directional limits, specify where it is to be placed. Further, each association is to adopt an energy policy statement regarding the "location, design and architectural requirements" of such a system, but only within 120 days after receiving a request for such a policy statement or an application to install such a system from a member. The policy statement is to be disclosed upon request, and also to be "included" in the association's declaration.

Comments:

1. So until someone asks about such a policy or wants to install such a system, the association need not adopt a policy.
2. Exactly how the policy statement is to be included in a declaration is not stated. Ordinarily the Declaration would have to be amended by a supermajority vote of the owners. But here the law is requiring inclusion. Maybe the Board can adopt the policy statement and then simply record the statement as an amendment, citing to operation of law as obviating a vote (although notice to lenders may still be needed, if the declaration so requires).
3. The weight-bearing ability of the roof and the weight of such a system will be important issues for an association, as will possible punctures of the roof by the system (and visibility of the system from the ground).

Section 25 requires that any solar energy system must meet all state and local requirements.

Section 30 requires that an association process any request for a system within 90 days of submission of the application. But if no policy is then in place, then the 90 days doesn't start to run until the date the policy is adopted.

Comment: So if an association has no policy, and an application to install or use a system is made, the association will have 120 days to decide on a policy and then another 90 days after the policy is adopted to rule on the application (up to 270 days).

Section 35 allows for actual and consequential damages against any association that willfully violates the Act. But any entity that complies with the Act will not be liable to any resident or 3rd party for such compliance.

Comment: Will the extra energy costs of not allowing the system timely be actual or consequential damages? If the violation of this Act is ruled to not be willful, what damages does this Act allow, if any? I suggest actual but not consequential damages.

Section 40 allows the prevailing party in any litigation arising out of the Act to be entitled to costs and reasonable attys' fees.

I assume that various engineering firms will start to offer a service to review the association building(s) and offer guidance on the policy to be adopted.

View Public Act 096-1436