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posted: 1/28/2012 12:01 AM

Condo talk: Associations need policy for solar, wind energy

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Solar panels and wind turbines installed by townhouse and condominium owners could be commonplace in the near future. Green, environmentally friendly policies, and alternative energy sources, are generally "hot" topics these days, and that is equally true in homeowner associations.

The law in Illinois now requires condominium, homeowners and common interest community associations to formulate policies to address green initiatives proposed by unit owners.

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Formerly known as the Homeowners' Solar Rights Act, the Homeowners' Energy Policy Statement Act has been revised, effective Jan. 1. The Energy Act requires associations to adopt an energy policy statement. The energy policy statement must address the location, design and architectural requirements of solar energy systems, like solar panels.

The energy policy statement must also describe whether a wind energy collection system (wind turbine), rain water collection system, or composting system is allowed, and if so, the location, design and architectural requirements of those systems.

Most associations are governed by a declaration of covenants that prohibit an owner from installing anything on the exterior of the building or in common areas without the approval of the board. That restriction, and the board's power to approve additions to the exterior of the buildings, is eroded when an owner desires to install a solar energy system, like solar panels. The Energy Act provides that no deed restriction, covenant or similar binding agreement can prohibit, or have the effect of prohibiting, a solar energy system from being installed on a building covered by the deed restriction, covenant or binding agreement.

This would seem to raise a constitutional impairment of contract issue, but we will have to wait for a court decision for a definitive answer.

The practical impact of the Energy Act is that the board of the association cannot deny a property owner in an association permission to install a solar energy system. However, the association can determine the specific location where solar panels may be installed on the roof, within an orientation to the south or within 45-degrees east or west of due south. However, this determination cannot impair the effective operation of the solar energy system.

The Energy Act has now been expanded to cover wind turbines, rainwater collection systems and composting. However, unlike a solar energy system that the association must allow, the association can adopt a policy prohibiting wind energy collection, rainwater collection and composting systems.

The Energy Act requires the association to take specific action if an owner wants to install one of the energy systems I have described. Within 120 days after an association receives a request for a policy statement or an application from an association member, the association must adopt an energy policy statement if it hasn't done so already.

If wind turbines, rain collection and composting are allowed (and they do not have to be), the statement must also set forth the location, design and architectural requirements of those systems. The Energy Act also requires an association to disclose its energy policy statement upon request.

Easily overlooked, the association must also include the energy policy statement in its declaration. Literally read, associations are going to have to amend their declaration to incorporate the energy policy statement. An amendment to the declaration to conform to law can generally be adopted by the board without unit owner approval.

I would strongly urge an association to adopt and publish an energy policy statement well before it receives an inquiry from an owner. Once an owner makes an inquiry, the clock starts running on the mandatory time period for the board to adopt a policy.

Most board members, I would hope, would prefer to deal with such a technical subject without the pressure of being under the gun of a pending application and deadline. The latter circumstances tend to lead to emotional, rather than properly thought out, responses.

The required energy statements should be drafted with the assistance of legal counsel, who should also be called upon to assist with incorporating the statement in the association's declaration.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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