Commentary: Let the sun shine: New law a boon to clean energy

Missouri law is about to change to provide more property rights to homeowners and to provide greater opportunities for energy independence. But, if you practice in the field of real estate, it may require some preparation in advance.

On June 29th, Governor Mike Parson signed into law two pieces of legislation – Senate Bills 745 and 820 — that both state “no deed restriction, covenant, or similar binding agreement running with the land shall limit or prohibit the installation of solar panels or solar collectors…on the rooftop of any property or structure.”

This may not seem significant unless you live in a Homeowner Association (“HOA”) and find the act of investing in lower utility bills and reduced carbon output a frustrating endeavor. Some covenants banning solar date back to the 1970’s when panels resembled the monolith from the film “2001” and have not been updated in nearly fifty years. Despite the fact another law, Section 442.110 RSMo, declares solar an expressed “property right.” Even with that, it was easy for a homeowner not thinking long-term to sign away their ability to place solar on their rooftop.

More frustrating still are restrictions that remain silent except to say any modification to a house must be approved by an Architecture Control Committee (“ACC”) but otherwise has no guidance in how solar arrays or collectors should be reviewed or what type of systems could be approved. Arbitrary and capricious denials are handed out by these committees; often based on personal biases and misinformation that has nothing to do with structural soundness or aesthetic concerns. In some cases, the HOA will ask a landowner to go through steps that are not required of other modifications, like getting permission from surrounding homeowners. 

Ultimately, the whole situation pits neighbor against neighbor where a homeowner may not want to push for a legal remedy and cause discontent where they live. As a lawyer who also runs a nonprofit advocacy group focused on clean energy, we receive dozens of calls a year from frustrated parties who didn’t commit to such limitations on their property rights when they signed the covenants at closing. Or maybe faced confusing and vague language.   

The new law prevents this from happening but HOAs are not without their rights. Such organizations are allowed to pass “reasonable rules” on panels and collectors as long as “those rules do not prevent the installation of the device or adversely affect its functioning, use, cost, or efficiency.” As one might guess, terms like “reasonable” and “adversely affect” are not defined by statute as to give parties flexibility. Such flexibility can often lead to confusion and confusion can lead to litigation.

While the law does not go into effect until August 28th of this year, and enforcement cannot take place until New Year’s Day of 2023, it’s a necessary time for real estate practitioners to consider what a “reasonable rule” is and what is “adverse” to the effectiveness of a solar system in updating HOA covenants and restrictions.

For starters, the law only applies to rooftop solar. Ground mount systems could still be banned, although there are plenty of ways to regulate these systems by requiring them to be in a backyard and not to exceed fence heights. A ground mount system that is out of sight would have no adverse impact on the enjoyment of other landowners.

Back to rooftop solar, a rule should make clear that the system should comply with the net metering statute as well as all local ordinances. Missouri law regarding how solar arrays connect to the grid limits their size and capacity. That’s a no-brainer, as is requiring solar arrays to be built in accordance with the manufacturer’s instruction. Also, those local ordinances often require arrays to be certain colors (almost always black) and to have certain heights in conformance with a roof’s slope.

No matter what state law or municipal ordinances say, the goal of new covenants should be to have as little impact on the solar array’s estimated annual energy production. I’ve seen pretty solid restrictions in other states that say any alternative design cannot impact energy production by “more than ten percent.” This calculation can be determined by publicly available modeling tools provided by the reputable National Renewable Energy Laboratory, or an equivalent entity.

Location is important to determining the effectiveness of an array. South-facing and west-facing portions of the roof are the best places for panels to soak in the sun at peak times during the day. If those roof surfaces do not face the street, there should be no issue for other property owners. If that side of the roof does face the street, the rule could stipulate that the arrays can be allowed on the front of the house if documentation is provided from the solar constructor indicating this is the only feasible location for the solar panels. More work for the installer, but certainly within the bounds of “reasonableness.”

Wires and other mechanical components should be concealed as practically as possible. If such components cannot be concealed, they should be placed as inconspicuously as possible when viewed from all angles. If someone wants to install “solar shingles” like Elon Musk has developed, they should mimic roof requirements and composite shingles as closely as possible.

These are examples of what rules can remain in place to maintain the integrity of the HOA in an association while making sure a solar array still works for the customer. An ACC can and should continue to have a role. Sample rules could allow for pre-approval on systems that meet more rigid requirements with the ACC getting involved if modifications or variances are needed.

Of course, this will only work if the HOA adopts rules that give clear guidance as well as individual homeowners and solar installers who will work within the language in place. Renew Missouri has sample guidelines on their website and can be accessed by going to www.renewmo.org/solarguidelines. We just want people to educate themselves and to make sure the sun keeps shining in all neighborhoods around our state.

— James Owen is the Executive Director of Renew Missouri, a 501(c)(3) advocacy group that works on clean energy issues with offices in Columbia, St. Louis, and Kansas City. He is also an attorney and film critic hobbyist as well as a former associate circuit judge.