CLOTHESLINES AND SOLAR PANELS CAN BE REGULATED
CLOTHESLINES AND SOLAR PANELS
CAN BE REGULATED
 
    The Florida Legislature recently adjourned after passing a great number of new laws. However, we still don’t know the status of the primary pieces of legislation that deal with Condominiums and Homeowner Associations because the time for the Governor to possibly veto those laws has not yet passed. When the status of the new laws is settled we will prepare a summary of them for an upcoming e-Lawyer. In the meantime, there are plenty of existing laws that directly impact the operation of community associations, some of which are not found in Chapters 718, 719 or 720. One of those laws is Section 163.04, which is entitled 'Energy devices based on renewable resources'.
 
HISTORY OF STATUTE & HOW IT IMPACTS COMMUNITY ASSOCIATIONS:
 
    Section 163.04 was first adopted in 1980 and placed in Part I of Chapter 163 which relates to miscellaneous intergovernmental programs. As such, it only applied to Cities and Counties and forbid them from adopting laws that prohibited or had the effect of prohibiting the installation of solar collectors, clotheslines or other such solar energy devices. It also forbid them from approving subdivision plats if the Covenants for those subdivisions contained restrictions that prohibited or had the effect of prohibiting the installation of solar collectors, clotheslines or other such solar energy devices.
 
    In 1991 a court specifically confirmed that the 1980 version of the law applied only to Cities and Counties and found that Section 163.04 did not prohibit a homeowners association from enforcing a 'no solar panel' restriction. As a direct result of that case, the legislature amended Section 163.04 in 1992 to specifically make community associations subject to its restrictions.
 
LIMITATIONS IT IMPOSES ON COMMUNITY ASSOCIATIONS:
 
    The law, as now written, places the following limitations on community associations:
(2) No deed restrictions, covenants, or similar binding agreements running with the land shall prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restrictions, covenants, or binding agreements. A property owner may not be denied permission to install solar collectors or other energy devices based on renewable resources by any entity granted the power or right in any deed restriction, covenant, or similar binding agreement to approve, forbid, control, or direct alteration of property with respect to residential dwellings not exceeding three stories in height. For purposes of this of this subsection, such entity may determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 45 degrees east or west of due south provided that such determination does not impair the effective operation of the solar collectors. (Emphasis added.)
 
(3) In any litigation arising under the provisions of this section, the prevailing party shall be entitled to costs and reasonable attorneys’ fees.
 
(4).... This section shall not apply to patio railings in condominiums, cooperatives, or apartments. (Emphasis added.)
CAN THERE BE ANY LIMITATIONS ON CLOTHESLINES AND SOLAR PANELS:

    While at first blush, Section 163.04 seems to grant members the absolute right to have and use clotheslines and solar panels, it is not that broad. Instead, while it forbids community associations from flatly prohibiting such devices it does allow the following restrictions:

a. As to clotheslines, the law permits community associations to create restrictions on the placement and use of such devices unless such restrictions are so onerous that they effectively prohibit their use (e.g. they may only be used from 10:00 pm to 6:00 am); and

b. As to solar panels, the law permits community associations to control the location of such devices so long as they are permitted to install them within a certain orientation and so long as the requirements do not impair the effective operation of the solar collectors.

HOW MUCH CAN YOU REGULATE THE USE OF CLOTHESLINES AND SOLAR PANELS:

    The 1983 case of City of Ormond Beach v. Del Marco (426 So.2d 1029 5th DCA) is the only reported case in the State of Florida which has interpreted this law.

    In that case, Mr. Del Marco requested permission to erect a windmill on his oceanfront residential property for the purpose of generating electricity for his home. To do this, he alleged that he needed both a sideyard variance and a height variance to permit the windmill to exceed the maximum permitted height of sixteen (16') feet. The lower court found that the City’s refusal to grant such variances violated Section 163.04 and the City appealed to the Fifth District Court of Appeal which then set forth the following standard:

Section 163.04 eliminates the need to prove a hardship [as required for a variance] as a basis for the property owner’s desire to install the energy device, but it does not, however mean that [Mr. Del Marco] can place the windmill where he pleases or to such height as he pleases. He must still abide by the setback and height restrictions of the zoning ordinance unless he can demonstrate the requisites for a variance; i.e., that the variance is needed so that the windmill can operate satisfactorily...... He was not entitled to 'optimum' performance, if something less than that produces satisfactory performance of the windmill. (Emphasis added.)

    The appellate court than sent the case back to the lower court to determine if the variances were needed for satisfactory (not optimum) performance of the windmill. No further appeals were taken, so we don’t know what the lower court ultimately decided. However, the above quoted language does give us a standard to use when dealing with clotheslines and solar panels.

CONCLUSION:

    It is clear that community associations can regulate the use of clotheslines and the location of solar panels. It also seems logical, based on the language of the above case, that such regulations will be acceptable so long as they do not interfere with the satisfactory (as opposed to optimum) performance of the clotheslines or solar panels and for solar panels only, that they be permitted to be located within the specific orientations provided for in the statute. For this reason, community associations should not be afraid to adopt reasonable regulations relating to those devices.

    However, because a judge may or may not concur with the Association’s opinion as to what is 'satisfactory' in any given case, it is important to view each case carefully. As always, you should seek the advice of your legal counsel to discuss your specific and unique circumstances in order to fashion your restrictions to your community.

The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition prepared by Harry W. Carls, Esq. & Robert L. Taylor, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.


©2004 Taylor & Carls, P.A. All Rights Reserved.
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