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Energy Efficiency Measures

Connor B. Wilden – January 27, 2021

Wanting to balance promoting renewable energy measures with preserving harmonious aesthetics, the Colorado Legislature enacted Colorado Revised Statute § 38-33.3-106.7 (“Section 106.7”) in 2008, which supersedes and controls any provision in a common interest community (“association”) which otherwise prohibits an energy efficient measure.

Energy Efficient House

An energy efficiency measure is defined as any device or structure that reduces the amount of energy derived from fossil fuels. It is important to note that while solar panels are one of the most popular and frequently discussed methods of energy efficiency, they are only one of several measures mentioned in Section 106.7. While the above definition includes solar panels, Section 106.7 also provides that no unreasonable restrictions may be made on the following energy efficiency measures:

  • 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; and
  • A retractable clothesline.

Of course, Section 106.7 does not permit homeowners to install the above energy efficiency measures at any costs, only that there may be no unreasonable restrictions. Factors that can be considered and used by an association or an architectural control committee as a part of reasonable architectural controls are:

  • The Documents/Aesthetic Provisions. An association may impose reasonable architectural controls on:
    • Dimensions
    • Placement
    • External appearance
  • 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.

Section 106.7 further stipulates that an association may prohibit the installation of energy efficiency measures 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 an energy efficiency measure on a limited or general common element, it may be wise to enter into an agreement delineating maintenance and insurance responsibilities of the common element and the energy efficiency measure. This way, in the event that any maintenance issues arise with the common element on which the energy efficiency measure is located, there will be no question as to who bears the responsibility.

Common interest communities should review their governing documents to see whether there are any provisions which expressly contradict Section 106.7, and if so, should consider amending said documents to bring into compliance with 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.

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