Technically legal, hard to get rooftop solar
A personal story of how I got rooftop solar approved by my HOA after 9 months
I was originally going to use this space to follow up on Tesla’s Q1 stumble, comparing it to the VW group’s struggles and BMW’s quiet success with EVs. That will have to wait because yesterday I finally got clearance from my homeowner association (HOA) to put solar panels on my roof after a 9-month process. I’m avoiding mentioning businesses or individuals involved because the story is what matters. My motivation for telling this story is to demonstrate that laws and technology matter, but there is plenty of room for excellent customer service and execution to differentiate local service providers. Let’s walk through my experience, why it’s not unique, and how businesses that make a climate impact need to have a stronger ground game.
Let the sun shine down
The story begins in May 2023 when I heard about an opportunity to do a group buy of solar panels to get a lower price for an installation and reached out to a solar install company. This was a great experience. They used Aurora Solar’s pretty awesome software to mock up a system for me, showing that the only feasible location for my south-facing home was on the front roofline. Some permits, a site visit, and an interconnection request completed by Duke Energy brought us to July where the last barrier was ensuring the architectural review by the HOA was approved.
I completed this review process with the HOA in 2022 for a play structure in my backyard and it went smoothly. I followed the same process: gather detailed plans, explain the impact, get neighbors to sign off, and submit the packet to the HOA. The response was unexpected:
Architectural Guidelines specifically state “…approval of the ACC is required for all rooftop equipment” and “ …solar energy equipment may be considered on the rear roof line and shall not be visible from the street.”
Should you wish to appeal the denial, please respond in writing no later than 15 days from the date of this letter.
I appealed via email explaining there’s another house down the street with visible solar panels on the front of their house. I found out later that these panels were approved by the builder, not the current HOA board. The board denied this appeal without a meeting:
The Board has been consistent in their decisions to deny approval of installations of solar panels on roof surfaces that slope downward toward the same areas open to common or public access that the facade of the structure faces while approving installations on other roof surfaces even though these may be minimally visible from the street.
I reached out to the solar installer and they were stumped (more on this in a moment), so I did what any good angry adult would do. I complained to everyone who would listen. This resulted in a friend pointing me to a North Carolina State Supreme Court decision that upheld a homeowner’s right to install solar. In the absence of other support, I responded to the denied request with these bullet points:
<redacted> currently has solar panels on the front-facing roofline that are clearly more visible than they would be on the front of <my house>. Additionally, these panels are visible from the main road, whereas front roofline of <my house> is only visible from the cul-de-sac where I have secured neighbor approval already. I have attached photos to this effect.
The back roofline of <my house> is far more visible from common area locations than the front roofline. I have attached photos to this effect.
There is recent legal precedent in favor of homeowners placing panels where they can be most effective on the property regardless of HOA rules (e.g. Belmont Ass'n vs. Farwig). While I am not a lawyer and I prefer to act in good faith, it is clear from previous decisions that homeowners are entitled to install solar panels in such a location to make them effective.
This email prompted a meeting with the HOA board in which one of the board members claimed the case was irrelevant and that he had legal expertise to that effect. This scared me off a bit as imposter syndrome set in, so I set a budget and reached out to the lawyer who had put together our will a few years previous. She put me in touch with a colleague who was more familiar with HOAs and we had a conversation in September.
Her advice was to survey all of the homeowners and try to change the HOA’s mind through old-fashioned democracy. I walked around to all 90 houses in my neighborhood, receiving unanimous approval from the 23 who answered the door. The property manager sent out a separate survey asking if homeowners were interested in solar which had a lower but overwhelming majority of 30 out of 40 when the results were announced in late December. This survey was a notably higher bar because many residents who said they were not interested still supported panels for other residents when I talked to them personally. Again, the HOA board rejected this as sufficient evidence to approve my panels claiming they needed an unspecified higher level of consensus.
At this point, I chose to consult with the lawyer again. She said writing a letter explaining the law again may help, but the letter needed to include a burden to avoid the HOA board ignoring it. She leveraged a North Carolina statute that says documents requested from an HOA must be produced within 5 days of receiving the request. I’ve put a redacted version of the letter at the bottom of this post for folks interested in reading it. Lawyers are busy and research takes time, so the letter didn’t go out until April 5th and we got the response on April 10th that the panels were approved on condition that they matched the roof and were mounted flush. No further conversation was needed with the board. Just get a lawyer to say what was happening was illegal and the HOA’s counsel sends a letter back approving the panels.
Small barriers, big impact
I’ve written before about how residential solar installers and operators need to have an incredible amount of hustle to succeed. Running around door-to-door is great, but hustling sometimes means removing a barrier that will make it easier for potential customers to spend money. When I asked my solar company what to do, they said they run into issues like this sometimes, empathized with my plight of not being able to use their product, and said suing was the only option. Suing would be something I would have to do without their support. This increases the cost of their product substantially! I was surprised when I reached out to a national solar advocacy group for advice and they said the same. Get a lawyer and hope you win because costs are unpredictable.
During this process, my neighborhood was approached by two other solar installers whom I had conversations with. Both reacted to the effect of, “I hope it goes well, thanks for letting us know,” before moving on to the next house. Certainly, they had enough information on the interest in solar in the neighborhood to attempt to coordinate with everyone and facilitate approaching the HOA board. Instead, they chose to rely on the customers to want the product badly enough to advocate for it. Doing all the work to knock on doors and have awkward conversations only to throw the information from those conversations in the trash is hustling backward.
This is not even to say that solar installers or advocacy groups should hire lawyers to battle HOAs. They probably shouldn’t. However, they could get more creative with their solutions. Builders often add HOA restrictions on yard composters, but Compost Now will pick up from your house.
Finally, it’s worth noting that the HOA board in my case was likely not acting in bad faith. They were erring on the side of not allowing changes because annoying one homeowner is less risky than a change that upsets many. Having the solar installer be more proactive would be better, but the best thing would be if the architectural guidelines the HOA board was working from explicitly stated that solar should be oriented toward the sun. Those guidelines were written 7 years ago by a builder incentivized to write guidelines to keep all houses the same until they have sold their inventory completely. Making all rooftop solar restrictions imposed by HOA rules unenforceable through statute and arming solar installers with the knowledge that their customers will not end up with a lien on their house for putting up solar is the only way to push through this en masse.
I know that was a lot to read, so my gift to you is an AI-generated picture of a character inspired by a nickname a friend gave me recently. His name is Han Solarpower.
Extra: Redacted letter to the HOA board
Please be advised that the Cotes have retained our firm to represent them related to their application to install solar panels on their home at <address> located within the <subdivision>. As you are aware, the <HOA> Board (“Board”) denied their request, as well as their appeal of the same for the proffered reason that the solar panels they requested be installed on their roof “slope[ed] downward toward the same areas open to common or public access that the facade of the structure faces”. The ACC and the Board, however, not only exceeded their authority in denying my clients the right to install solar panels on their home, but have also violated the law, making such decision void and unenforceable.
Per Article 13.01 of the Declaration of Covenants, Conditions and Restrictions for <subdivision> (“Covenants”), the “installation of solar panels or other ‘green energy’ improvements ("Green Energy Improvements") to the roof or exterior of a dwelling located on a Lot shall be permitted in accordance with NCGS § 22B-20[.]” By the HOA’s own governing document, filed and recorded with the Register of Deeds, and which runs with the land, neither the ACC nor the Board is permitted to deny such a request, but rather may only provide limited oversight related, for example, to aesthetic matters, such as the location or color of the solar equipment being installed.
Consequently, every home in within <subdvision> is entitled to have solar panels. Further, the homeowners are entitled to install the solar panels in the location that allows the highest and best use of the panels, such that any restrictions imposed by the ACC or Board cannot be of the kind that disproportionally affects the functionality of the product, thereby effectively defeating the purpose of the green energy. Rather, the ACC and the Board must defer to placement as recommended by the industry.
In comparing the reason giving for denying the Cotes’ request to install solar panels with the HOA’s Architectural Guidelines and Covenants related to the same, nowhere in either is there any reference to limitations on “installations of solar panels on roof surfaces that slope downward toward the same areas open to common or public access that the facade of the structure faces.” Because this restriction is not “included in any deed restriction, covenant, or similar binding agreement that runs with the land” for the HOA and the homeowners, the Board cannot now attempt to bootstrap this statutory exception to the present matter. See NCGS § 22B-20(d).
Not only did the Board and the ACC exceed the authority granted to them under the Covenants and Architectural Guildelines in denying the Cotes’ application, but they also violateed the North Carolina Supreme Court’s decision in Belmont Ass’n v. Farwig, 381 NC 306, 873 S.E.2d 486 (2022). In Belmont, the Supreme Court held that when a board’s actions in denying requests to install solar panels, such as the case here, has the effect of prohibiting the installation of solar panels in violation of NCGS § 22B-20(b), it makes such decision void and unenforceable under the law. I have enclosed a copy of Belmont Ass’n v. Farwig, as well as the applicable statute for your convenience.
Further, not only is the Board’s denial of the Cotes’ request to place solar panels on their home, (as well as the denial of numerous other homeowners in <subdivision> who have applied for similar approval), violative of NCGS § 22B-20(b), but it appears the Board is treating homeowners within the subdivision disparately. For example, the Cotes’ solar panels would be oriented perpendicular to <road>, just as the home on that street that already has solar panels. Moreover, there are not even common areas or public access that the façade of the Cotes’ home faces which the solar panels would be visible from, as asserted in the Board’s denial.
I know the HOA Board takes its role seriously with the goal of looking out for all the homeowners within <subdivision>. Based, however, on the results from the poll circulated by <property manager>, as well as the poll Mr. Cote went door-to-door to conduct, an overwhelming majority of the neighbors favor allowing the installation of these solar panels on the Cote home and in the neighborhood.
In light of the concerns related to the Board’s almost universal denial of requests to install solar panels, and the statement that the Board has been consistent in its decisions, please let this letter also serve as our formal request, pursuant to the North Carolina Planned Community Act, to provide my clients and myself access to various records of the Board and its committees, as set forth below, which records are to be made available for our review within five (5) days of your receipt of this letter, see NCGS § 47F-3-11:
The minutes of all meetings, both of the membership and the Board of Directors for the past three years, including all architectural request applications for the installation of solar panels.
For any actions taken without a meeting for the last three years, the actions taken, any minutes related to the same, as well as any related motions or applications.
The records of all actions taken by the ACC where that committee is operating as the decision maker in place of the Board (e.g. installation of rooftop equipment and solar panels) for the past three years.
The Cotes are reaching out one last time in an attempt to reach a resolution on this issue and to request the Board reconsider its decision in light of the directive of the Covenants, the Architectural Guidelines, and the Supreme Court’s holding in Belmont Ass’n. It is our sincere wish is to avoid having to bring a lawsuit to enforce any of my client’s rights. As such, please contact me at your earliest convenience to discuss arrangements for our review of these records, as well as the installation of the solar panels on my client’s home. Or, if the Board is represented by legal counsel, please have them contact me as soon as possible.
I look forward to your prompt response.