My Position on the Pending Solar Legislation

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

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Lincoln Hobbs, and some of the solar panels atop Hobbs & Olson | Carpenter Hazlewood

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%.

 

 

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