Explanation of the Colorado Solar Energy Access Law
By Gary Nakarado, CoSEIA General Counsel (All rights reserved)

Way back in 1979, during the "first" solar energy renaissance, the Colorado legislature did a very smart thing for today's Colorado citizen hoping to take advantage of the Solar rebates mandated by Amendment 37. With the foresight that solar energy would grow in importance to the state, the legislators forbade "Unreasonable restrictions on solar energy devices."
By passing section 38-30-168, the solar industry and its customers got a powerful weapon in dealing with outdated and unreasonable homeowners' association covenants and other limitations on the installation of solar energy on the basis of "aesthetic" considerations.

While the Colorado measure protecting the right to install solar energy devices may not be quite as all encompassing as the Federal protection provided by the FCC to satellite customers wishing to install the dish required to receive satellite service, the prohibition on unreasonable restrictions is plenty strong, and will typically ensure that reasonable PV and solar thermal installations will go through.

The only case to review the statute, decided by the Colorado Court of Appeals in 1985, upheld the customer's right to install PV panels under section 38-30-168, and even included the otherwise prohibited evaporative cooler which was powered by the panels thus constituting and "integrated solar device" as defined by section 38-32.5-100.3.
The actual language of the statute provides:

CRS 38-30-168. Unreasonable restrictions on solar energy devices void.

(1) After May 25, 1979, any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property solely on the basis of aesthetic considerations which effectively prohibits or restricts the installation or use of a solar energy device, as defined in section 38-32.5-100.32, is void and unenforceable.

(2) Subsection (1) of this section shall not apply to aesthetic provisions which impose reasonable restrictions on solar energy devices and which do not significantly increase the cost of the device.

The highlighted language makes clear that the prohibition of "unreasonable restrictions" is not a complete prohibition of any restrictions, and therefore CoSEIA members should thus encourage their customers to follow their homeowner's association or other applicable procedures for gaining approval of the proposed installation with as much time as possible for common sense negotiations of installation approaches that will satisfy all involved. It is only when the restrictions start to "significantly increase the cost" or otherwise "effectively prohibits or restricts" the installation of the solar device that the statutory protection applies3. Even then, enforcement of legal rights can be expensive; though local small claims court may be available in many cases.

CoSEIA members or others with specific instances of the need to use this statutory protection, or other field experience that would be of value to other members are encouraged to provide the details and relevant documents to the CoSEIA Administrative Director.

1 705 P.2d 1011, Colorado Court of Appeals, Div. III. GOVERNOR'S RANCH HOMEOWNER'S ASSOCIATION, INC., a Colorado corporation not for profit, Plaintiff-Appellant, v. Walter F. GUNTHER, Defendant-Appellee. No. 84CA0486. April 11, 1985

2 Section 38-32.5-100.3 (2) "Solar energy device" means a solar collector or other device or a structural design feature of a structure which provides for the collection of sunlight and which comprises part of a system for the conversion of the sun's radiant energy into thermal, chemical, mechanical, or electrical energy.

3 The Colorado Governor's Office of Energy Management and Conservation website provides, "While the statute prohibits covenants that restrict or prohibit solar energy devices based solely on aesthetic considerations, it does allow reasonable aesthetic provisions that do not significantly increase the cost of the device. Thus, covenants may require efforts to improve the aesthetics of an installation, as long as such improvements have reasonable/minimal additional cost. But, this issue has not been litigated in Colorado's courts. (http://www.state.co.us/oemc/programs/renewable/solaraccess)