Solar Panels and Satellite Dishes: Can an Association Regulate Them?

[This Article has been updated to include changes in law effective 2021.]

Short answer: Yes, an association can regulate solar panels and satellite dishes. However, an association cannot ban them in certain areas as solar panels are protected by Colorado law and satellite dishes are protected by federal law. And, the scope of the association’s regulation authority depends on whether the home is a single family home (whether detached or attached), or a condominium. We will review both in detail.

SOLAR PANELS

In 2008, HB1270 was signed into Colorado law. HB1270 amended the Colorado Common Interest Ownership Act (“CCIOA”) to add CRS 38-33.3-106.5, which requires associations to allow renewable energy generation devices subject to certain conditions. A renewable energy generation device includes a “solar energy device”, which is defined in C.R.S. §38-32.5-100.5 as follows:

“Solar energy device” means a solar collector or other device or a structural design feature of a structure which provides for the collection of sunlight and which comprises part of a system for the conversion of the sun’s radiant energy into thermal, chemical, mechanical, or electrical energy.”

CCIOA also refers to C.R.S. §38-30-168 in further providing that, regardless of any provision in the governing documents to the contrary, an association shall not effectively prohibit the installation or use of solar energy devices. However, the owner or occupant’s right to install is subject to the following conditions:

1. The solar energy device can only be installed on property owned by the owner (unless the association approves otherwise); and
2. The association may place reasonable aesthetic restrictions on dimensions, placement and external appearance of the devices.

With respect to the first condition, the property owned by the owner is limited to their lot or unit. So, with a standard, detached single family home, the owner’s location choices for installing a solar device are extensive since the owner owns the entire house and the entire Lot upon which it stands.

In a condominium complex, on the other hand, the owner only owns the air space and certain portions (likely the finished surfaces, depending on the boundaries defined in the declaration) of the perimeter walls, floors, and ceilings. So, the owner of a condominium cannot expect to install solar panels on the roof, because the roof is part of the common or limited common elements, neither of which is owned by the owner.

And, while the association can certainly allow solar panels on the condominium roof, it can condition its approval on the owner entering into a maintenance and indemnity agreement. This agreement would shift certain obligations and liabilities over the common element roof to the owner. The agreement should also require the owner to be responsible for removing and replacing the solar panels, if necessary, to allow the association to perform its maintenance obligations.

What about a townhome, duplex, or other attached single family home? Like a detached single family home property, the owner owns the residence, including the roof, and the Lot upon which it stands.

The difference is that in many townhome projects, depending on the declaration, the association is required to maintain, repair and replace the roof. So, since solar energy devices are most often installed on the roof, the association can prohibit them, right? Wrong.

The fact that an association has maintenance obligations over the roof does not eliminate the right of an owner to install solar panels on a roof that the owner owns. However, the association can hold the owner responsible for damage to the roof, or other costs incurred by the association due to the owner’s installation and use of the solar panels on the roof.

With respect to the second condition, an association can still regulate the look and placement of the device. So, for example, the association can prohibit massive solar panels installed on the front yard. However, any such regulations must not: (i) increase the cost of the device by more than 10%, or (ii) decrease its performance or efficiency by more than 10%. See HB21-1229.

Also, the association may adopt bone fide safety requirements, required by an applicable building code or recognized electrical safety standard, for the protection of persons and property.

Finally note that HB21-1229 provides that the association’s period of review and approval must not exceed 60 days from the date of application, such process must be transparent, denial of approval must not be arbitrary or capricious, and denial of approval must not be arbitrary or capricious.

SATELLITE DISHES

In 1996, the FCC adopted its Over-the-Air-Reception Device Rule (“OTARD Rule”) which protects satellite dishes that are less than one meter in diameter (as well as other types of antenna, which are not discussed in this article). In short, an association cannot enforce any regulations: (i) that impair the installation, maintenance or use of a protected satellite dish, (ii) on property that the owner owns or over which the owner has exclusive use (which is broader than the scope of authority for solar panels).

What property does the owner own or have exclusive use over? In a single family home community, the owner owns the entire lot, including the residence and other structure on the lot. So, the association’s regulation authority is limited in single family home communities, as it cannot adopt regulations that impair the installation, maintenance or use of a satellite dish on the roof or other areas of the residence and lot.

Attached homes are similar to detached single family homes in that the owner owns both the residence and the lot. Keep in mind, however, that many townhome communities have zero lot lines, which means the boundaries of the lot only extend to the foundation of the residence. If that is the case, then the area outside the lot boundaries is most likely common area.

The association has absolutely authority to regulate, and even ban, satellite dishes from being installed on general common areas. However, with respect to any patio, backyard, or other area over which the owner has exclusive use, the association’s regulations cannot impair the installation, maintenance or use of a protected satellite dish over such limited common area.

With a condominium, the owner only owns the air space and certain portions (likely finished surfaces) of the perimeter walls, floors and ceilings. But the owner usually has exclusive use over certain areas that are designated as limited common elements, such as the balcony and/or patio. Be sure to look at both the declaration and the condominium map when determining whether an area is a limited common element.

The roof or siding, on the other hand, typically fall within the definition of a general common element and, therefore, would not be under the protection of OTARD. The association is free to regulate, require approval prior to installation, and even outright ban the installation of satellite dishes on any general common elements.

What impairs the installation, maintenance or use of a protected satellite dish? Any restriction or regulation that:

1. Unreasonably delays or prevents installation, maintenance or use;
2. Unreasonably increases the cost of installation, maintenance or use; or
3. Precludes reception of an acceptable quality signal.

An unreasonable delay includes an approval process (even expedited) for protected satellite dishes. This means you cannot enforce any restriction or regulation that requires association approval prior to installing a protected satellite dish.  An overwhelming number of declarations include this requirement. Do not apply it to satellite dishes that are being installed on property the owner owns or over which the owner has exclusive use. Do apply it if the owner is proposing to install the satellite dish on general common elements (or you can simply prohibit them from being installed on general common elements).

Although associations cannot require an owner or occupant to submit an approval request form when installing on property the owner owns or has exclusive use over, it can require a notification form. This allows the association to verify that the antenna will be or has been installed in accordance with the associations written rules and regulations. This should not be confused with an approval process or a right to review the installation details before the antenna is installed, as both would be considered an unreasonable delay under the OTARD rule.

Associations may, in advance, adopt location preferences that do not impair the installation, maintenance or use of the antenna. This will assist associations in maintaining a uniform appearance rather than having antennas installed in all kinds of locations. For example, a condominium community may prefer installation on the following locations in the following priority:

1. inside the unit; or
2. on the balcony below the railing; or
3. on the balcony on a mast or tripod as close to the level of the railing as possible; or
4. on the railing.

A townhome community may prefer installation:

1. Inside the townhome; or
2. on the back patio; or
3. on the back of the townhouse as close to the eave as possible; or
4. on the chimney; or
5. on the side of the townhome as close to eave as possible; or
6. on the roof.

Detached single family communities may have similar preferences as a townhome community, although they generally do not have the same maintenance concerns with installing on siding as a townhome community does.

However, if installation in a preferred location will impair the installation, maintenance or use of the antenna, the owner or occupant has the right to install it in another location the owner owns or has exclusive use or control. As a result, it is important to adopt rules and regulations setting forth a list showing priority of location preferences.

The FCC also allows an association to adopt installation methods such as camouflaging methods. For example, an association may require antennas in a location where they would not be visible from the street, as long as signal reception is not impaired, and it does not unreasonably delay or increase the cost of installation, maintenance or use of the antenna.

Also, the association may require painting the dish or accessories if the painting will not violate or void any manufacturer’s warranties. The association could not, on the other hand, require an owner to have an antenna installed by a professional, as opposed to self-installation.

Finally, the FCC has also allowed associations to adopt and enforce restrictions needed for legitimate safety concerns or historic preservation, even if the restrictions impair the installation, maintenance or use of the antenna. However, these also need to be in writing and distributed to owners in advance.

RECOMMENDATIONS:

Here are five things an association should do to prepare itself for handling requests for installation of a solar panel or satellite dish:

1. Review your Declaration. If your declaration contains provisions that are contrary to OTARD or CCIOA, as clarified above, you cannot enforce such provisions.

2. Review your Rules, Regulations, and Guidelines. If your rules, regulations or guidelines contain provisions that are contrary to OTARD or CCIOA, you cannot enforce such provisions.

3. Do not require prior approval FOR SATELLITE DISHES over property that the owner owns or has exclusive use. Adopt location preferences and installation regulations instead. The regulations should not increase the cost, delay the process, or hamper signals.

4. Adopt review procedures and reasonable aesthetic regulations FOR SOLAR PANELS that do not significantly increase the cost of the devices or significantly decrease their performance or efficiency.

Additionally, under certain circumstances it may be appropriate to require the owner to enter into a maintenance and indemnification agreement, which would require the owner to agree to certain maintenance, insurance, and liability terms as conditions for allowing installation.

5. Educate Homeowners. The best way to ensure understanding of an owner’s right to install solar panels and satellite dishes is through education. Including an article in your next newsletter and/or providing information at your next owners’ meeting is a great way to keep owners informed on the above topics.

CONCLUSION:

An association’s ability to enforce restrictions on solar panels and satellite dishes are limited, but not completely pre-empted. It is important to develop a written policy before solar panels or antennas become an issue in the community. Drafting rules and regulations that comply with CCIOA and the FCC’s requirements can be complicated and should be drafted, or at least reviewed, by the association’s attorney.

If you would have any questions or would like more information on the process and cost of drafting solar panel or satellite dish regulations, please contact any of our attorneys at 303.432.9999.