Windmills: What HOAs Need to Know

Last Friday, I celebrated the sun coming out by blogging on solar panels in homeowners’ associations (“HOAs”). In that entry, I mentioned that solar panels are regulated as “renewable energy generation devices” under Colorado law and cannot be prohibited from being installed in HOAs. However, associations do have some broad authority to regulate the aesthetics and placement of the panels.

Like solar panels, windmills (referred to as “wind-electric generators” under the statute) are also classified as a “renewable energy generation device” and have similar protections under C.R.S. 38-30-168.

 

Here’s what HOAs in Colorado need to know about regulating the installation of windmills:

 

● HOAs are not permitted to prohibit an individual from installing on their own property a windmill that meets the following statutory definition: “a wind-electric generator that meets the interconnection standards established in rules promulgated by the public utilities commission pursuant to section 40-2-124, C.R.S.” Any such prohibition in the governing documents of an association is void and unenforceable. 

● An individual does not have the right to place windmills on: (1) property owned by another person; (2) property which is leased by the individual; (3) limited common elements of an association; (4) general common elements of an association; and on (5) property which is collateral for a commercial loan – without first obtaining permission of the secured party. 

 

● Associations are permitted to adopt aesthetic provisions (commonly referred to as “architectural guidelines”) that impose reasonable restrictions on the dimensions, placement or external appearance of windmills and that do not:

 

            ○ Significantly increase the cost of the windmill; or

            ○ Significantly decrease the performance or efficiency of the windmill.

 

● In addition, associations are permitted to place reasonable restrictions on the installation and use of a windmill to reduce interference with the use and enjoyment by other residents of their property located near the site where the windmill would be installed. The purpose of these restrictions is to address noise generated by the windmill. In determining whether the regulations are reasonable, the association is required to utilize the architectural control process in the governing documents and to provide the individual requesting approval to provide input on the noise which would be generated by the device.

 

● Associations are permitted to adopt “bona fide safety requirements, required by an applicable building code or recognized electrical safety standard, for the protection of persons or property.” 

 

HOA To Do List:

  1. Review Declaration. Review the declaration of your association to determine whether any provision prohibits the installation of windmills on property owned by an individual. If your declaration contains such a provision – it is void as a matter of law and you are not permitted to enforce it. 
  2. Review Policies and Rules & Regulations. Review these documents to determine whether there are any prohibitions on the installation of windmills on property owned by an individual. If such prohibitions exist, they are not enforceable and the policy or rules & regulations should be amended to come into compliance with Colorado law. 
  3. Review Architectural Guidelines. Review the architectural guidelines of the association to determine whether any restrictions on windmills exist. If you have restrictions, determine whether they are reasonable and address noise issues – as more fully described above. If the restrictions do not comply with Colorado law, take steps to amend the architectural guidelines.

If your association needs assistance with any of these important steps or would like us to review documents, our attorneys are available to provide legal assistance. You can contact us by calling at 303-863-1870 or email me at mfoley-healy@wlpplaw.com