Lauren C. Holmes – December 28, 2022
Wanting to balance promoting renewable energy measures with preserving harmonious aesthetics, the Colorado Legislature enacted Colorado Revised Statute §§ 39-33.3-106.5(1.5) and 38-33.3-106.7 which supersede and control provisions in the declaration or rules of a common interest community (“association”) which otherwise prohibits an energy efficient measure or a renewable energy generation device.
A renewable energy generation device is defined as:
- A solar energy device (i.e., solar panels);
- A wind-electric generator that meets standards established by the public utilities commission; or
- A geothermal device.
An energy efficiency measure is defined as a device or structure that reduces the amount of energy derived from fossil fuels that is consumed by a residence or business located on that property, but is limited to include only the following:
- An awning, shutter, trellis, ramada, or other shade structure that is marketed for the purpose of reducing energy consumption;
- A garage or attic fan and any associated vents or louvers;
- An evaporative cooler;
- An energy-efficient outdoor lighting device, including without limitation a light fixture containing a coiled or straight fluorescent light bulb, and any solar recharging panel, motion detector, or other equipment connected to the lighting device;
- A retractable clothesline; and
- A heat pump.
Associations cannot enforce covenants or rules that effectively prohibit renewable energy generation devices or energy efficiency measures, but they may adopt reasonable aesthetic provisions governing the dimensions, placement and external appearances of such devices or measures. These provisions must consider:
- Reasonable Cost. The cost to the owners (of compliance with the reasonable architectural controls) cannot be significantly increased.
- Efficiency. No unreasonable decrease in performance or efficiency is allowed.
- Safety. Bona fide safety requirements are allowed.
An association may prohibit the installation on property which is:
- Owned by another person;
- Leased, except with the permission of a lessor;
- A limited common element or general common element of a common interest community.
If the association permits a homeowner to install a renewable energy generation device or energy efficiency measure on a limited or general common element, or on property the association maintains, it may be wise to enter into an agreement delineating future maintenance and insurance responsibilities.
Common interest communities should review their governing documents to see whether there are any provisions which expressly contradict Colorado law, and if so, should consider adopting a policy setting forth provisions as permitted by Colorado law.
If you have any questions regarding solar panels, or other energy efficiency measures in your community, please do not hesitate to reach out to one of our attorneys.
