Private Property Rights Win for Solar

When William and Joan Madigan and Henry and Lavonne Speak moved to the Garden Lakes community in Avondale, Arizona, to retire, they looked forward to using their new swimming pools for low-impact exercise. What they got was a high-impact lawsuit.

Phoenix, Arizona – February 28, 2003 [SolarAccess.com] Now, thanks to a ruling by the state’s appellate court, they can swim in the warm water of their pools knowing they have won a victory for themselves and solar enthusiasts throughout the Grand Canyon State. The Arizona Court of Appeals recently issued their opinion in Garden Lakes Community Association v. Madigan/Speak. The homeowners association (HOA) was seeking to force the Madigans and Speaks to take down solar panels installed on the roof. The Appeals Court found that the HOA’s deed restriction and architectural guidelines, combined with the HOA’s conduct, violated the public policy of Arizona as expressed in Arizona Revised Statute Section 33-439. Garden Lakes Community Association is a master planned community located in Avondale, Arizona, with over 2,000 homes. The Madigans and Speaks, hired Heliocol Solar to install solar swimming pool heaters on their homes for environmental and economic reasons. Little did they know the solar panels would lead to five years of litigation. The HOA filed a lawsuit against the two homeowners seeking an injunction requiring removal of the solar panels and approximately US$100,000 in fines. Relying on the deed restriction and Architectural Review Guidelines, the HOA argued that the homeowners should have built a patio or screen to hide the solar panels. The Madigans and Speaks, who countered that both options are prohibitively expensive and significantly reduce the efficiency of the systems, won in the trial court but the HOA appealed the decision. (Prior to trial, the HOA waived the fines allegedly owed by the Madigans and the Speaks; William Madigan died and Joan Madigan had the solar equipment removed from the roof of her home.) The Appeals Court, in upholding the lower courts decision in favor of the homeowners, concluded, the HOA’s restriction on solar panels “effectively prohibited the installation and use of solar energy devices.” The Association attempted to place restrictive guidelines on the residents that were contrary to the provisions of a law passed by the Arizona Legislature in 1979 in order to protect individual homeowners private property rights to use solar energy. That law states, “Any covenant, restriction or condition contained in any deed, contract, security agreement or other instrument affecting the transfer or sale of, or any interest in, real property which effectively prohibits the installation or use of a solar energy device as defined in § 44-17611 is void and unenforceable.” According to the Arizona Solar Energy Industries Association (AriSEIA), many HOAs place restrictions on the installation of solar devices that add significantly to their cost or prevent them from receiving sunlight, which would render them useless. This practice is a significant barrier to widespread use of solar energy by Arizona homeowners. “Hopefully, this ruling will end the senseless attempts by homeowners associations to prevent Arizonans from using solar energy,” said Kent Pulido, president of the AriSEIA. “With incentives such as the Arizona residential tax credit, the new utility rebate programs and the pending federal tax credit, Arizonans can now take advantage of the sun to reduce their monthly utility bills and allow our state to take advantage of the economic development and air quality benefits that solar can provide.” Peter Carvelli can be reached at peter.carvelli@solaraccess.com
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