How Should an Association Handle “Green” Modifications?

We live in an age of uncertainty.  Many fear for the condition of the country, the economy, and even the environment.  These issues, and others, have resulted in increasing numbers of owners seeking to improve their residences in ways that will give them resilience in the face of rising challenges.  These changes include, but aren’t necessarily limited to, electric vehicle charging stations, solar panel installations, and geothermal heating elements.  Even community associations have begun to look at these options as measures to improve the desirability and long-term sustainability of their communities and common areas.  Regardless of the reasons behind such requests, they pose the same question for a community association:  should such improvements – some of which may be the “first of their kind” in a community – be authorized and, if so, what is the proper way to allow them while still maintaining the aesthetic appeal of the neighborhood?

The Basis for the Association’s Authority

The first question to ask is what language in the governing documents creates the authority for the Board to weigh in on an improvement.  The applicable language nearly always comes from the declaration of covenants (although not always!) and takes the form of an architectural control provision.  These provisions, in short, require an owner to submit an application for the Association’s review prior to installing an improvement that will change the “look” of the property.  Keep in mind that this is not the only authority, however, and a careful look at the governing documents should be conducted to ensure the Board is acting in accordance with the same.  For instance, in a Condominium, where most of the exterior of the structures are Common Elements, the Board’s authority may come from language prohibiting an Owner from altering the Common Elements without approval.  

Once the language is found, it should be reviewed for scope.  Some provisions may limit the authority of the community association to approval of new “structures,” in which case the installation of solar panels or charging stations may not require approval.  More often, the language is broad in scope and there is little doubt that any modification to the exterior of the unit, lot, etc. requires approval.  Some newer declarations of covenants may even deal specifically with solar panels and similar environmentally friendly modifications.  Hand in hand with a review of the covenants should be a review of the community – are there already similar modifications installed?  If so, it is possible that the community association may have lost the right to say “no” to future, similar improvements.  The reviews above can be very language and fact dependent, and it is often a good idea to get legal counsel involved for clarification and assistance.

A Potential Missed Opportunity

Once the Board has determined that it has the authority to review and approve or deny a modification of this type, the next question is how to respond.  In my experience, many Boards faced with the first installation request for solar panels or a geothermal reservoir respond with a kneejerk “no” simply because no other similar improvement exists.  Depending on the motivation of the owner making the request – whether for financial or ethical reasons – a denial based on “it hasn’t happened before” may result in a determined pressure campaign to allow their improvement.  In some instances, owners have utilized community petitions or even filed suit asking a judge or jury to overturn the Association’s decision.  

To avoid this, a Board may want to do some research.  Asking directors in other communities, property managers and installation experts for information will assist in making a more informed decision.  For instance, a Board may learn that current technology allows solar panels of different colors and even shingles that serve as panels.  Doing a bit of legwork can help the Board provide a detailed response and alternatives.  Not only will more information inform the Owner of possibilities they may not have considered, it will also show them that the Board took the application seriously.

Smart Sustainability and Thinking Long Term

A single section of an article is insufficient to address all the things a Board may need to consider when dealing with an application for a sustainability improvement.  For instance, a charging station on a single-family lot may require substantially less thought than a request for one that ties into common element electrical lines to get to a limited common element space.  The point, however, is that a Board should always keep future improvements in mind when they accept or deny an application.  Written guidelines may help provide guardrails for future similar installations as well.  The more education a Board receives, the better they can factor in future requirements of a similar nature so that the first “approval” or “denial” doesn’t set an untenable precedent that becomes difficult to break from.

Conclusion

Because of the potential for reducing harm to the environment, saving money, and creating homes that are less reliant on the public sector, it is unlikely that sustainability improvement applications are going to decline in number.  If anything, we are at the cusp of a wave that will steadily build in the coming years.  Remember the cautionary tale of the satellite dish, the prohibition of which by a community association was eventually prohibited under federal law.  A Board would do well to avoid kneejerk reactions to these applications and, instead, educate themselves so that they can bring the community into an agreeable future instead of fighting to maintain a “past” status quo that may no longer be sustainable.