Hobbs & Olson | Carpenter Hazlewood’s Arizona Managing Partner, Scott Carpenter, will be visiting Utah next week to present the 10 most significant 2016 cases affecting Utah community associations.
Scott was one of a few nationally-known community association speakers selected to make a similar presentation at the 2017 and 2018 College of Community Association Lawyers’ Annual Law Conference. He’s an excellent and informative speaker.
There’s still plenty of time to register for this week’s course CAI M204 course on community governance.
This course is part of the Community Association Institute’s PMDP series for professional community association managers. I’ve been teaching the course for about a dozen years, and will be teaching it this Thursday and Friday in Sandy, Utah. About 20 students are currently registered to attend.
Areas covered in the course include:
Developing and enforcing rules
Using an attorney or other professional advisor
Conflicts of interest and ethics
Reviewing and amending governing documents
Statutes and case law affecting community management
Fiduciary responsibilities of association boards, committees and managers
While the course is designed primarily for managers, I’ve also taught the course to attorneys and board members. If you want to know more about governance, and have the time, I encourage you to join me. More information and a registration link can be found here.
I surprised a few people at the Utah Legislature last week, by testifying against a bill that would arguably facilitate the installation of solar panels in Utah. Those who know me (and those who follow this blog) are well aware of my concern for
the environment and my advocacy for legislation that will reduce air pollution and carbon emissions. The attached photo of me, with the solar panels on the Hobbs & Olson | Carpenter Hazlewood offices, appeared in the Deseret News a few years ago, when I testified in opposition to Rocky Mountain Power’s efforts to discourage solar by changing Utah tariffs respecting net metering.
I opposed the pending legislation, Senate Bill 154, because it would unfairly and inappropriately take away long-standing and important rights for community associations to govern themselves. The admitted goal of the legislation is to prevent associations from unreasonably interfering with solar installations, and if it did that, I would have been up there testifying for the legislation.
But this legislation seeks to prohibit — or come very close to prohibiting — associations from stopping any solar installation, regardless of the reasons t
herefor. There are some concerns about the aesthetics of solar, and I dismiss most of those, but there are other legitimate concerns that associations have — and should have — about a prohibition on reasonable solar restrictions.
The biggest issue for many associations is that this bill, in its current form, could prohibit an association from preventing installation of solar panels on property that may be owned or maintained by the association. Many associations with detached homes have the obligation for exterior maintenance. Should an association be precluded from limiting who can attach any items to the association’s property.
Another concern is that an association would be precluded from overseeing the contractors who are accessing and installing solar. There are many very qualified solar companies out there, but there are others who have no business being in the industry. Associations should be able to adopt reasonable standards for the qualification of those who will be installing solar on the association’s property.
And of course if associations have no ability to oversee any aspect of solar, there will almost certainly be those instances when crafty owners in dispute will selectively choose and install the most offensive solar possible, just to spite their neighbors. And if you’re really interested, my written testimony is below:
Chair Edwards and members of the Committee:
Thank you for your time today. I appreciate the opportunity to speak regarding this legislation. Public and diverse input is critical in our government. My name is Lincoln Hobbs, I am an attorney whose practice focuses largely on representation of community associations.
I’m here today with conflicting personal interests related to this proposed legislation. I am a very, very avid environmentalist and supporter of solar energy, having spoken previously to this legislature, and to the Utah Public Utilities Commission respecting energy credits for energy-efficient vehicles, and encouraging policies encouraging solar energy development. I personally have no doubt that climate change is very real, and that it is human-caused and that everyone should do everything possible to mitigate their contributions to it.
I’m the co-owner of a commercial building in Salt Lake City which has a 30-panel solar system which was installed in 2011. Back then, solar was at least 1.5 times as expensive as it currently is. Notwithstanding that, we believe the system has now been paid for by the monetary savings it has achieved, and we have offset many tons of carbon
I also co-own a cabin in Summit County, with a 6-panel Kw solar system. Those panels provide essentially all of our cabin’s electrical needs, although we remain connected to the grid at that location because the snow does tend to pile up in the winter.
Our Summit County installation was proposed to, and was almost immediately approved by, the community association in which our cabin is located. I also have in-laws who have installed solar panels in their Davis County community association, with their association’s approval and encouragement. The process of requesting permission in our case and my in-laws case encouraged dialogue, which in turn encourages installation by others.
During this period of time, I’ve also represented many community associations in dealing with solar installations. Community associations provide a unique opportunity for homebuyers to choose the type of community in which they want to live. Some people want to live in associations where dogs and cats are allowed; others want them prohibited. Some want dogs and no cats in the neighborhood. Some want cats and no dogs. Some want landscaping restrictions; others do not. These community-based decisions are made in these local communities, and these locally made decisions are enforced through the associations’ declarations, which are essentially contractual agreements made among neighbors.
SB154 , as currently pending, would preclude these community associations, and those who chose to live in them, from choosing the reasonable restrictions which might otherwise apply to solar installations. To impose limitations on these associations is to deny them their rights to choose their own community desires. It’s a microcosm of the states’ rights issue. I think I’ve heard tribute to that concept up here.
The Utah Chapter of the Community Associations Institute suggests that this legislation be amended to extend the timeline for associations to meet, confer and to adopt their own, community-originated rules respecting solar installations through December 31, 2017. That allows a reasonable opportunity for these communities to propose and discuss what restrictions work for them, as communities. If they don’t do so, the legislation can apply to them.
In my experience in dealing with associations that have considered and adopted solar policies, they generally reach reasonable, community-based solutions that balance the interests of all in the community. That should be the goal of any legislation passed by this legislature.
Another aspect of this legislation will preclude associations without specific policies from precluding installations that will result in any more than a 5% reduction in production, or a 5% increase in cost. Amazingly, this restriction is twice as restrictive as California’s statute. Perhaps this statute as drafted will be headlined on national news as the only instance in which Utah is more environmentally progressive than California. I’d suggest that a 10% limitation is more appropriate. Even with a 10% reduction in productivity, solar is, and will increasingly become, more and more economically feasible.
Existing Utah law provides adequate protections for residents who may contemplate or desire future solar installations, and for those who may oppose them. Utah Code Ann. 57-8a-217 provides for advance notice and community participation respecting proposed declaration and rule amendments in all Utah homeowner associations. Anyone who currently is contemplating installation of solar or who may oppose it, will certainly participate in any proposed rulemaking, and in the process, will educate their neighbors as to the desirability of solar installations in their communities.
Which leads me back to my initial observation. Public and diverse opinion is critical in our government. And that applies to very local governments, even down to the neighborhood level. This legislation, if adopted, should allow community associations an opportunity to consider and adopt the restrictions that make sense to them.
I’d request that this legislation, if passed, allow associations through the end of the year to consider and adopt, if they so desire, their own restrictions on solar installation. In the absence of such restrictions, they should be entitled to regulate those installations to the extent that they do not reduce productivity by more than 10%.
There is a very, very bad bill pending before the Utah State Legislature, which seeks to eliminate the possibility of any community association’s attempt to seek redress for a developer’s (or practically anyone else’s) negligence in constructing homes.
Homes are, for most people, the most significant investment of a lifetime. One would hope and expect that the people who build that home (and make lots of money in selling it) would stand behind what they sell to you.
But if your new home happens to be a condominium association, or a home in a Utah HOA, the developers want to restrict you from seeking recourse if they sell you a poorly constructed home. They want to make it almost impossible to pursue them in a court of law.
How? By requiring a meeting, and by requiring more than 51% approval before a lawsuit can be filed, along with providing a legal opinion which no competent lawyer would give (NOT ALONE SHARE WITH THE WORLD), and then by requiring your association to set aside a bunch of money to fund the costs of that suit. There’s more than that. Call me if you want the really ugly details.
I’m the first to admit that there are a lot of lawsuits out there without merit. But this is nothing other than developer protectionism, which should be vigorously opposed. Call your representative now. If you don’t know who to call, visit this site
Sarah Orme and Lincoln Hobbs are finalizing their presentation for the 2017 Community Association Law Seminar, to be held in Las Vegas, NV from January 18-21. This will be Lincoln’s 15th consecutive CCAL Law Conference, and Sarah’s 5th consecutive attendance.
Sarah and Lincoln will be presenting a case study of the litigation and resolution of a complex fire-related condominium dispute with their opposing counsel in that litigation, Nate Alder of Christensen & Jensen.
Sarah also contributed to this year’s law conference by reviewing and summarizing some of the most significant condominium and HOA cases of 2016. Josh Bolen of Carpenter, Hazlewood, Delgado and Bolen also volunteered his time to that important project. Those cases will be presented to the conference attendees by four of the nation’s most esteemed CCAL lawyers, including Scott Carpenter of Carpenter Hazlewood.
Lastly, the firm of Carpenter Hazlewood has generously sponsored the Keynote Speaker.
Hobbs & Olson’s affiliation with Carpenter Hazlewood adds four additional members of the Utah Bar to our local team, and allows us to consult, share with and learn from the 29 condominium and HOA attorneys in Arizona and New Mexico.
And the lawyers at Carpenter Hazlewood are among the nation’s most qualified. Six of the Carpenter Hazlewood team are members of the College of Community Association Lawyers. Lincoln Hobbs is the current president of the College; Scott Carpenter is a Past President. All of these attorneys actively participate in and contribute to the College.
Of the thousands of HOA and condominium attorneys practicing community association law in the United States, fewer than 175 have been granted membership in the College, and the College currently has only 152 active members. Fellows of the College distinguish themselves through contributions to the development of community association law. Their service is demonstrated by a commitment to educate and empower boards and residents of the more than 330,000 community associations across the country. CCAL attorneys commit themselves to high standards of professional and ethical conduct and work to create a community of experienced legal professionals to advance community association law for the betterment of the communities they serve.