HOAs rain on homeowners' solar parade, residents' property rights

When Joey Myles was looking for his family's forever home, he had a few non-negotiable items on his wish list.

At the top of that list was something he had wanted since being a young boy: solar panels.

So, Myles dutifully checked the covenants of nearly two dozen Homeowners Associations in the Indianapolis area. Finally, he found the right fit with a neighborhood open to the technology.

Or so he thought.

Myles ultimately got his solar panels, but only after months of back and forth with his Franklin Township HOA. And even then only because he agreed to place the system in a way that wasn't visible — a change that resulted in the system producing only half as much energy as the original installation he'd hoped to put in.

"My entire life I wanted to live in a house with solar panels," said the Franklin Trace resident. "It really means a lot to me to be able to save money and be energy efficient and green."

But, ultimately, Myles said, his fight for the right to solar had nothing to do with environmental issues.

"This is about homeowner's property rights."

Myles is not alone. In fact, he fared better than many others such as Gary Wiggins, of Bloomington, or Dustin Holt, in Hamilton County, who found themselves in neighborhoods with associations that have complete prohibitions on solar panels.

With hundreds of Homeowners Associations across just Central Indiana, a review suggests that as many as half don't allow panels at all while the others have weak or limiting language that leaves architectural review committees to make decisions devoid of objective criteria.

Many such HOA officials say those covenants are in place to maintain the aesthetics of the community or to protect property values. Others argue that those were the rules when the individuals moved in, and thus the rules they agreed to. Some HOA officials, however, simply say their hands are tied — the bylaws are binding.

To break down these barriers, Sen. Aaron Freeman has put forward legislation that would restrict the constraints HOAs can place on solar panels and at the same time provide the groups with guidance on the review process and justifiable reasons to deny solar. This legislation, if passed, is not retroactive and would apply only to new and amended HOA rules.

"I think HOAs have a dated view on this," the Indianapolis Republican told IndyStar. "Certainly we want a situation where HOAs can protect homeowners' investment, but we also want homeowners to be able to make decisions and investments like this on their property — and I think we can have it both ways."

Archaic provisions

Freeman is not wrong in his assumption: Numerous HOAs are operating under covenants and bylaws that were written as far back as the 1980s and were crafted from boilerplate developer documents, according to Jane Scully, vice president of HOA managing agency Sentry Management that works with about 60 associations in the Indianapolis area.

At that time, the primary solar technology was thermal panels used to replace electricity specifically for heating and cooling systems.

Admittedly, Laura Arnold said, the panels from that era were somewhat clunky and cumbersome in appearance. Arnold, who is the president of the Indiana Distributed Generation Alliance, said she believes much of the opposition is left over from that prior presentation.

There is evidence in the rules themselves.

Many contain references to "solar heat panels" in the bylaw language. A large number of covenants contain some version of the language that "no solar panels shall be permitted" or "solar panels may not be erected or placed" on the property.

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Myles and fellow HOA resident Brian Wells were so frustrated with the process that the two of them teamed up to investigate the situation. They reviewed the policies of nearly 380 covenant agreements across eight central Indiana counties, including Marion, Hamilton, Hendricks and Johnson.

Here's what they found: In Marion and Hamilton counties alone — with more than 250 associations between the two — as many as 80 have an absolute prohibition and another 80 have a roof prohibition, according to their analysis. The rest are subject to the architectural review committee, usually a small board of roughly three people.

"We don't do anything the same way we did in the 1980s or even '70s when some of these were written," said Joe Loomis, former HOA president of Avian Glen in northeast Carmel. "We don't drive the same cars, don't wire our homes the same or even have the same drainage systems."

"So to stick with any provision born out of those times is archaic," he added, "but I know a lot of people would disagree with me."

Many such people include those who worry that the aesthetics of the systems will be obtrusive to neighbors or detrimental to property values, Loomis said from his time on the board.

Such was the case with Myles' original request to the review committee, which was rejected several times for concerns over aesthetics and visibility from the street, according to letters from the board reviewed by IndyStar.

"I really came to hate the word 'aesthetics' from this," said the Department of Defense auditor who designed this house with his wife in 2016. "I'm losing as much as 52 percent efficiency because I had to put them on the back of my house, but I should be getting way more."

As luck would have it — bad luck, that is — Myles' front yard faces south, which is the best direction for maximum solar productivity.

Solar installer Phil Teague said he has seen his share of situations where panels were forced to be placed in spots that robbed the homeowner of solar's full potential.

"I know one person whose HOA made him put the panels north-facing," said the founder of Rectify Solar Inc. "I mean, come on. North is the worst direction."

"I understand it from both sides in the sense they want it to look good," Teague added. "I think a fair balance is to make some compromises on the aesthetics for HOAs in having various product selections, but not on the direction or orientation of the systems."

Many studies suggest that solar systems actually don't hurt property values.Research led by the U.S. Department of Energy's Lawrence Berkeley Laboratory found that home buyers are willing to pay more for homes with solar panels — especially those functioning at full capacity.

And solar does more than just increase property values for those homes with solar, said Kerwin Olson, executive director of consumer advocacy group Citizens Action Coalition.

"Generally speaking, once a neighbor installs solar, it creates a domino effect as neighbors begin to inquire, ‘What’s that all about?’" he said. "We should be inviting investments in solar through our laws and ordinances, not discouraging it."

Bylaws built to last

That is precisely what Freeman hopes to achieve with his legislation, Senate Bill 207.

"Certainly Indy has a very large portion of HOAs, and I represent an area full of them," the Senator told IndyStar. "I'm a lawyer in my day job where the words 'always' and 'never' are rarely used in my vocabulary, so I just think there is a better way to do this and I hope the associations would see the value in what the legislature is trying to do."

More specifically, that bill is trying to give HOAs some guidelines on how to review applications for solar panels.

It says that solar systems may be prohibited only if the installation is deemed to threaten public health or safety, to violate law, or to be on property not owned by the homeowner, among a few other similar stipulations. Also, the association may only change the location of the system if doing so does not inhibit the maximum efficiency or increase the installation and maintenance costs of the panels.

Such clear and specific guidelines are sorely lacking in Indiana at the moment, according to Leslie Webb with the Carmel Green Initiative.

As both the leader of an initiative to expand renewable energy and an HOA resident who recently installed solar herself, Webb has encountered these barriers from multiple angles.

The Avian Glen homeowner was first denied when she sought approval for her solar system last year.

"We have an HOA, and about five or six years ago the covenants were rewritten and at that time the prohibition against solar was removed," she said. "But I still was denied, so I talked to them and found out it was because they then didn't have any guidelines for solar."

Loomis was president of Avian Glen's HOA at the time the covenants were rewritten. He remembers the board was planning to update the bylaws for reasons other than solar, but decided to include its policies on the technology in the overhaul.

Their neighborhood had no issues and no one with a real interest in solar at the time, Loomis said, but they were trying to look ahead.

"It's such a difficult process to change HOA covenants in Indiana that you really don't want to do it, so we tried to make a document that would last several decades," he said. "Ignoring the solar issue would not have met that criteria."

Changing bylaws in Indiana is very cumbersome, requiring a majority approval from the entire neighborhood often through official signatures.

Gary Wiggins of Bloomington knows that process well.

With 417 homes in his Winslow Farm community, he needed nearly 280 votes to be able to repeal and replace his HOA's prohibition on solar devices.

"Beginning in April 2017, I personally spent many hours and walked many miles in Winslow Farm knocking on doors and convincing people to vote in favor of the repeal," Wiggins told IndyStar. "There are now four homes in Winslow Farm with solar panels."

Wiggins' home is one of them. The retiree had only 12 'no' votes among the 301 he and several other homeowners collected throughout the year — making his petition a success and his system, which came online Nov. 30, possible.

Solar not going away

But to spare homeowners from going to such lengths, Freeman's bill would require that any HOA rules, covenants or other governing documents amended or adopted after June 30 include and operate under the guidelines in the legislation.

SB 207 would not force HOAs to begin the amendment process. Still, Scully with Sentry Management said many will likely elect to do so themselves in the near future.

"So many HOAs are going through the update process right now as it has been several decades with the bylaws they have," she said. "So it's a natural time of turnover and a natural time to fold this type of legislation and language in."

"But I think associations probably will need a lot of education about that," Scully added, "I think that will be much of the battle."

For that aspect, Scully and other said it is best to look to other states.

North Carolina, Texas, Colorado and Oregon are among several states that have passed similar legislation that restricts the constraints HOAs can place on residents interested in pursuing solar and prevents the associations from requiring changes to the system that would reduce its efficiency or increase its cost.

Charlie Hemmeline with the Texas Solar Power Association said that the state has seen a greater ability for consumers to install solar since its law was enacted in 2011.

"Restrictions on consumers’ rights to install solar is definitely solar related as the restriction is on solar, but it is also definitely related to private property rights," the executive director said. "The homeowner wishes to add solar to their rooftop and wishes to directly control the cost and source of their home’s energy. The rooftop is their property, and their energy consumption is their property."

Senate bill 207 has been referred to the Senate Committee on Civil Law, but does not yet have a date for when it is scheduled to be heard. Freeman proposed similar legislation during last year's session, where it made it out of the Senate but was not heard on the House floor.

Both he and the many homeowners he has come to speak with along the way, such as Myles, hope that the bill will get over that last hurdle this year, despite being a short session that wraps up in March.

"I'm not an anti-HOA person by any means and have lived in one for most of my life," Myles said. "I'm not and we're not trying to chip away at their authority, but just give them better guidance on this."

"And I'm hopeful with this law," he added, "because this is so common sense and solar is not going away."

Call IndyStar reporter Sarah Bowman at (317) 444-6129. Follow her on Twitter and Facebook: @IndyStarSarah. IndyStar's environmental reporting project is made possible through the generous support of the nonprofit Nina Mason Pulliam Charitable Trust.

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