11 ELR 50019 | Environmental Law Reporter | copyright © 1981 | All rights reserved

Overcoming Aesthetic Restrictions on Residential Solar Collectors: A Guidebook for Lawyers and Homeowners

Elizabeth Entwisle (A.B. 1974, Wellesley College; J.D. 1977, University of Pittsburgh) is a part-time staff attorney at the Environmental Law Institute and is also in private practice. She was project manager for this article under the Institute's Energy Program. Frank Meeker (B.S.E.E. 1964, Stanford University; J.D. 1969, University of Washington) was acting director of the Energy Program when the project began and later became a consultant to it. Janet Nakamori (B.A. 1977, University of Hawaii; J.D. 1981, Georgetown University) was a legal research assistant in the Energy Program and developed the article's case studies. She is currently working in the law firm of Rogovin, Stern, Huge & Lenzner in Washington, D.C. The article was developed from a guidebook written under Grant H-8213 RG from the U.S. Department of Housing and Urban Development. The authors thank David Engel, Director of Market Development in HUD's Residential Solar Demonstration Program and government technical representative for this grant, and Robert M. Entwisle Jr., a lawyer in private practice in Pittsburgh, for their invaluable help on the project.

[11 ELR 50019]

Introduction

The harnessing of the sun's direct energy to heat and cool homes and to heat water for household uses is changing residential architecture across America. As the use of conventional fuels is reduced globally, residential solar systems will become a common sight in the 1980s and beyond. Today there is a large variety of residential solar designs because the technology is young, decentralized, and rapidly growing and because there is much diversity in climates, latitudes, and architectural styles in the regions where the technology is applied. Each solar design has a unique visual impact. With rational and imaginative planning, communities can in most cases balance the land-use equities of solar homeowners and their neighbors so as to achieve cost-effective solar designs that meet the aesthetic and architectural standards of the community.

Several communities have pioneered in the development of aesthetic guidelines for residential solar designs. Their experience is a natural starting point for any individual or community planning group involved in solar land-use issues.¹ The American Planning Association (APA) has also done ground-breaking work in its recent manual, Residential Solar Design Review, prepared for the U.S. Department of Housing and Urban Development (HUD).² That manual suggests ways to modify both solar designs and conventional design restrictions to overcome aesthetic barriers. It is very useful for establishing [11 ELR 50020] objective standards of architectural "reasonableness" for a community's solar designs.

This article offers to solar homeowners strategies for gaining design approval from public and private regulatory bodies. Given the relatively high capital investment needed to design and build most home solar heating and cooling systems,³ the need for unobstructed air space to protect solar access, and the desire to enhance one's equity investment, the authors have assumed that most residential solar systems will initially be built by single-dwelling suburban homeowners.

Traditionally, land-use and aesthetic standards have been regulated in American suburbs by the public sector through zoning, building codes, and increasingly through planning commissions. However, the trend in subdivisions built since World War II has been for the developer to write aesthetic restrictive covenants into the original parcel deeds and to have the private sector enforce them subsequently. In most subdivisions the enforcing body is an architectural review board, whose original members are frequently chosen by the developer. This pattern is summarized by the authors of Residential Solar Design Review, who state that "[s]ingle-family homes are not likely to be reviewed by private boards" and that "private architectural controls are likely to have the greatest effect on solar energy use for single family housing."⁴ The pervasiveness of this influence is shown by the fact that there may be "[a]s many as 20,000 community associations with architectural approval powers in the United States."⁵

While private aesthetic controls play an important part in determining what solar designs will be permitted in a given community, they cannot be considered in a vacuum. It is also necessary to examine the community's zoning, building, and planning codes as they frequently affect solar designs directly or indirectly. Thus, while this article's focus is on private restrictive covenants, it also considers the impact of aesthetic controls imposed by the public sector.

Section I of the article reviews the sometimes arcane law of restrictive covenants. It covers (1) what restrictive covenants are, (2) how to determine whether a homeowner is bound by any, and (3) how several commonly occurring covenants can affect the use of residential solar systems.

Section II suggests informal, non-litigative methods of gaining design approval from private and public review boards.

Section III is written for situations where conciliatory efforts do not succeed and recourse to the courts becomes necessary. It discusses the legal theories and strategies available for gaining approval to build or keep intact a solar system.

Section IV presents several case histories of homeowners who have challenged restrictive covenants and ordinances barring their solar designs. These include challenges before private review boards, municipal zoning and planning boards, and court challenges.

I. Restrictive Covenants and Their Potential Impact on the Use of Solar Collectors

A restrictive covenant is a promise to do or not do some act or acts concerning the use of real property (land and the structures and vegetation on it). It often involves controls on the physical appearance of property. The usual purpose of covenants is to protect neighboring homeowners' investments in property by preserving their expectations regarding property uses. Covenants often have their genesis in the plan of subdivision lots recorded by the developer. The deed conveying a subdivision lot from the developer to the original purchaser is subject to these restrictions. Covenants typically run with the land and may be enforced by any property owner in the subdivision plan, his heirs and assigns. As legal entities, covenants fall somewhere between easements and equitable servitudes.

Where to Find Covenants

Restrictive covenants are usually found either in the deed to the property itself, in the deed to another lot in the same subdivision, or in the plan from which the deed is conveyed. Deeds often contain the actual covenants, but more frequently they incorporate the restrictions of the recorded plan by reference by stating that title to the property is "subject to conditions, restrictions, and covenants of record," or similar language. At a real estate closing, any covenants may be called to the buyer's attention, frequently as exemptions from the coverage of title insurance. In some cases, a deed will not mention the existence of covenants. Silence does not necessarily mean that they do not exist. When a deed only incorporates covenants by reference, or when it is silent as to covenants, a search of the plan and the chain of title is necessary.

As with all recorded covenants, covenants that embody aesthetic restrictions are recorded in the applicable instrument, a plan or deed, in the local county's or town's recorder of deeds office. Restrictions affecting the location of a solar collector, such as the distance it must be set back from property lines, might also be in the records of the local surveyor's office or, more likely, in the planning map or zoning ordinances of the municipality. Restrictions that appear in these three places are not formally recorded in the local deeds office, however.

To find all recorded covenants applying to a particular lot, the "grantor/grantee" indexes must be examined to [11 ELR 50021] establish the chain of title. Where covenants exist, they will usually have been created when a large tract of land was subdivided, and the developer recorded the subdivision in the land records. Occasionally restrictions will be placed only in the deed of the first lot sold in a subdivision, but later purchasers are also bound by the restrictions. The only way to find such restrictions is to do a title search of every lot, going back to the time of platting.

If a separate tract index exists, it should be checked to find any restrictions not included on individual deeds or in the recorded plan. It may include restrictions that were put on the land in the back chain of title before it was laid out in a recorded plan, as well as agreements between landowners after subdivision. However, most deed restrictions trace back to the recorded plan.

In a rare case the recorder of deeds may keep a list of restrictions, waivers, discharges, releases, and amendments. The list will probably be in chronological order and may update or include information not found in the deeds or recorded plan.

A faster, but not necessarily reliable, route for determining whether covenants exist is to ask the local neighborhood association or architectural review board. As these groups often enforce covenants or otherwise represent neighborhoods in land-use controversies, they may keep copies of covenants on file. If the group has enforcement responsibilities, it should be contacted in any case to learn how it interprets the covenant language.

Why Restrictive Covenants Are Popular and Where They Are Commonly Used

Restrictive covenants are used to provide protection that is not generally provided by zoning and nuisance law. Some cities, like Houston, rely on convenants as their basic land use control device.

Covenants are often used to regulate architectural details and other aesthetic features of real estate. They are also used in new subdivisions in areas not yet zoned. Restrictive covenants are often favored because residents believe they will give longer-lasting protection than zoning, since zoning laws can be frequently and easily changed. Nuisance law also has limitations since a law suit generally must be brought to establish a right to relief under the specific fact situation, and courts are reluctant to call many conditions nuisances, especially if they do not believe a substantial hazard to the community is involved.

Because of its relative advantages, the restrictive covenant evolved in the nineteenth and twentieth centuries from the ancient right of individuals to enter into private agreements to a device that developers could use to improve the salability of lots in their new subdivisions.

The trend since World War II has been to apply covenants to new large subdivisions.⁶ Developers often use the same set of covenants for all their projects, and developers in any given area tend to copy one another's covenants. The Federal Housing Administration and the Veterans Administration have encouraged the use of restrictive covenants, and have drafted model covenants for developers to use.⁷ Redevelopment agencies have similarly been encouraged to include restrictive covenants in their contracts.⁸ Higher-priced housing is somewhat more likely to be subject to private aesthetic restrictions than inexpensive housing, and large subdivisions (more than 40 lots) are more likely to be subject to covenants than smaller projects.⁹ Condominiums, cooperatives, planned developments of all sorts, and even mobile home developments may be regulated by restrictive covenants, bylaws, or other similar private aesthetic controls. Covenants have also provided a basis for comprehensive community plans in Palos Verdes in Los Angeles, Forest Hills in New York, the Country Club District in Kansas City, Roland Park in Baltimore, and many others.

Without covenants, the results of the enormous effort put into laying out these developments — planning harmonious architecture and creating a distinctive environment — could quickly be undone. Homeowners would lose the assurance that the neighborhood will retain the visual atmosphere that may have induced them to buy there. For these reasons, the constraint of restrictive covenants on the use of solar collectors should be limited but not eliminated. Conversely, reasonable restraints on appearance may be legal, but a flat ban on solar collectors will rarely be.

Covenants do not necessarily include the unrecorded restrictions placed on the property by the planning map, zoning ordinances, building code, and other public sector land-use controls of the community. These unrecorded restrictions must be consulted, however, because when they coexist with restrictive covenants a property owner must abide by the more restrictive control. For instance, if zoning allows a 35-foot tall structure but applicable restrictive covenants say houses may be only 27 feet tall, the covenants govern. Conversely, if covenants say nothing about the size or location of roof structures but building codes stipulate they may cover only 10 percent of the roof and must be located on the back of a house, the codes must be followed.

The development of the planning commission in local government has had an impact on the content of private aesthetic controls. These commissions propose planning ordinances and maps which, when adopted by the municipal council, frequently with little or no debate, regulate the aesthetics of the entire community. Their recommendations often routinely end up in the zoning and building codes of the municipality. And in practice, the content of covenants tends to be influenced by zoning and building codes. Developers may delete from standard packages covenants that simply repeat local laws or that are less restrictive than those laws. Zoning standards are often used for the bulk of the covenant provisions.¹⁰ On the other hand, covenants may be written to conform with zoning, [11 ELR 50022] as consistency causes less confusion in the minds of homeowners. Lot size and building location are two factors that are frequently controlled only by zoning. Some subdividers deliberately repeat the content of zoning laws in covenants because they fear zoning may be changed.

There are a few instances where public land-use laws require certain private covenants as a condition to obtaining a permit to develop. States or localities could enact laws that condition subdivision and other development permits on the existence of covenants that will provide solar access protection for all residents.¹¹

The instrument containing the covenants often establishes and architectural control board or committee, answerable to the homeowners' association, whose duties are to decide what proposed building, remodeling, or landscape plans meet the terms of the covenants. The developer picks the original members of this group. The covenants themselves usually detail how subsequent members are selected. Decisions of the board may be appealed to a court. The homeowners' association can in most cases initiate litigation to enforce covenants in its own name, just as individual residents of the subdivision can.¹²

Impact on the Use of Collectors

Even restrictive convenants that do not mention solar devices may have a great impact on the use of this equipment. A few new covenants deal explicitly with solar equipment, detailing where it may be used and what types, colors, and sizes are acceptable.¹³ Older covenants usually stipulate only that any changes to the exterior appearance of property must be approved by the architectural control committee. They may also place prohibitions on certain types of property uses that can be interpreted to apply to solar activities.¹⁴

As a general rule, covenants will affect collectors more than the other components of a solar system because collectors must always be directly exposed to the sun. The exterior surface of collectors will clearly be subject to control under many covenants, thereby limiting choices as to what materials, such as plastics and glass, may be used. While collectors can sometimes be screened, they can never be hidden inside a structure. What occurs within a building — whether a solar system uses air or water to carry heat, for example — will in most cases be unaffected by covenants.¹⁵ Storage systems located outside a structure may encounter the same problems as collectors. Roof and yard ponds and pools are sometimes used to store heat. Fortunately, most storage components are buried under houses or yards and do not present aesthetic problems.

Prohibitions on Particular Types of Development

The following types of regulations are often found in private covenants, planning maps, building codes, and zoning ordinances, and could logically be applied to solar equipment:

Design review requirements

Height restrictions

Setback and yard requirements

Ancillary structure restrictions

Bans on temporary structures

Bans on fences and other man-made objects

Requirements for screening utilities

Requirements that vegetation screen be planted and maintained or prohibitions on the cutting of trees

Bans on commercial activities

Building material and architectural style specifications

Restrictions on roof construction

Prohibitions of activities thought a nuisance

In planned unit developments where common land and property comprise a major element of the development, the following requirements may also pose problems.

Provisions relating to the exterior maintenance of structures (requiring certain maintenance to be done by a community association, or excluding certain things, like glass, from maintenance covered by the annual assessment)

Provisions requiring common areas to remain open space (where private lots are very small)

Directly or indirectly, all these regulations relate to the aesthetics of a neighborhood. In the discussion that follows, the impact of each type of regulation on the use of different types of solar equipment is examined. Language from actual restrictive covenants is quoted. Because these covenants are not offered as models and because literally [11 ELR 50023] thousands of variations in language exist, individual covenants are not identified, although the sets of subdivision covenants from which they come are listed in the appendix following the text.

Design Review Requirements

Covenants requiring prior approval of changes in the facade of a structure or landscaping will present the greatest challenge to persons on both sides of disputes over the appearance of solar equipment. The orientation of existing houses, their roof and wall areas, surrounding vegetation and structures, and site topography all dictate the optimum placement and size of solar collectors. The use to which the collected energy will be put, and thus the type of solar equipment, is also relevant. Some homeowners may choose only to preheat some of their water, which would require only a small collector. A much larger solar package would be required, however, to heat, cool, and provide electrical power for an entire house. Aesthetic considerations will make it difficult or impossible to accommodate solar enthusiasts all of the time. Flexible design requirements will, however, make more accommodation possible.

Although flexibility is essential, vague or generally worded covenants will fail to give solar users and their neighbors clear ideas of their rights. Language typical of many covenants illustrates the difficulty of predicting whether a proposed solar system will be approved:

No building, structure, fence, utility yard, screen planting or other improvements shall be erected, placed or altered on any premises until the building plans, specifications, and plot plans showing the location of such improvement … have been approved in writing as to the conformity and harmony of the external design and external materials.

At times, the language of a covenant is even less precise. It may not obviously apply to renovations or additions to an existing structure, and it may not define critical words like "outward appearances" and "structure":

No dwelling or structure shall be erected on the property until the plans and specifications with the proposed site therefore have been submitted to and approved by [grantor or the property owners' corporation, as the case may be] as outward appearances and design, and a written permit issued therefor.

Confusing or poorly defined requirements will be frustrating to both sides in conflicts over solar aesthetics. In a study of one county in Wisconsin, researchers found that where covenants required plan approval prior to construction, most residents sought approval from municipal authorities rather than from an architectural review committee.¹⁶ A homeowner who has received a building permit to install a solar system may believe that this is all the permission necessary and begin construction. Members of an architectural review board may perceive this as a deliberate challenge to their authority and react more negatively toward the proposed project than might otherwise be the case.¹⁷

Communities would be wise to confront the problem of solar aesthetics directly. Residents should be informed that the neighborhood association or relevant board intends to develop architectural guidelines for solar collectors. After discussion and research, all residents should be invited to comment on and participate in the process. It will be useful to consult the APA manual throughout the process since it offers strategies for solar design and for making a subdivision's design review more responsive to solar uses, and has many illustrations that convey the visual impact of various designs.¹⁸

Height Restrictions

Restrictive covenants may contain height limitations on structures that are more restrictive than those under the relevant zoning ordinance. Problems can arise when a homeowner wants to install a rooftop collector on a structure that is already as tall as the covenants allow. Alternatively, a solar collector might fit within the limit, but a screen or parapet required to shield it from view would not. Height limitations expressed in stories rather than feet pose less of a problem since solar equipment will rarely be construed to comprise a separate story.

Setback and Yard Requirements

Zoning usually requires structures to be located a minimum distance from streets and property lines. Nevertheless, covenants often regulate these matters as well and will be enforced if they are more restrictive than the zoning. Rather than refer to the distance from the front line, a covenant may refer to a required minimum distance from the northerly (or other direction) lot line. This approach may be used to protect solar access but could create special problems if the distances were set without regard to available sunlight.

The following language is typical. It may or may not be a barrier to the use of solar energy, depending on the orientation of streets, height of structures, vegetation common to the neighborhood, and the number of feet of setback required:

No building shall be located on any lot nearer to the front lot line than __ feet, or nearer than __ feet to any side street line, except that on all lots abutting collector and arterial streets no building shall be located nearer than __ and __ feet respectively.

No building shall be located nearer than __ feet to an interior lot line, except that no side yard shall be required for a garage or other permitted accessory building located __ feet or more from the minimum building setback line. No dwelling shall be located on any interior lot nearer than __ feet to the rear lot line.

If it appears that such requirements will bar a particular solar installation, it is worth checking to see if exceptions are spelled out for eves, steps, and open porches. It may be possible, for instance, to put collectors on the roof of an open porch. In addition, the covenants may explicitly allow the architectural control authority to make exceptions for sloping ground or where the proposed construction would be aesthetically pleasing.

Ancillary Structure Restrictions

Solar equipment may be located on structures such as garages and sheds instead of an a house. The equipment itself may even comprise an "ancillary" or "accessory" structure if it is large and not permanently attached to the [11 ELR 50025] structure it serves. One of the first solar access conflicts involved collectors attached to a garage.¹⁹ Swimming pool collectors are often affixed to cabanas. A survey of recent architectural magazines shows that many people who want to retrofit their homes with solar equipment decide to put collectors on the roofs of new ancillary structures that are specially oriented for maximum exposure to sunlight.

Ancillary structures are subject to the same types of aesthetic controls as primary structures. One covenant requiring prior approval of any construction of ancillary building states:

The exterior of all outbuildings must be of the same or similar material as the exterior of the houses in the development.

Covenants may control the size and location of ancillary structures.

No house, appurtenance or outbuilding shall be less than __ feet from the northerly elterior side of any lot, nor less than __ feet from the exterior southerly line of any lot ….[Similar restrictions are included for east and west sides.]

In some instances, restrictions like these may make it impossible to capture all available sunlight.

Covenants may also limit the number of buildings allowed on any one lot. Allowable structures are usually specified. Among those often expressly permitted are garages, stables, garden sheds or greenhouses, and guest houses. On the other hand, some of these structures may be expressly prohibited. Bans on greenhouses make it very difficult to use this form of solar heat.

Bans on Temporary Structures

Because they are often unsightly, many covenants ban temporary structures.

No structure of a temporary character, trailer, tent, shack, garage, barn or other out-building shall be used on any lot at any time as a residence either temporarily or permanently.

This language, representative of many covenants, is clearly limited to temporary structures used as dwellings and should not impede the use of solar equipment. It is conceivable, however, that a solar greenhouse placed against a structure but not permanently affixed to it, and designed to contribute heat to the main structure, could run afoul of such a covenant.

Bans on Fences and Other Man-made Objects

These restrictions could be a major impediment to the use of solar energy if they are unreasonably stringent and provide for no exceptions. Collectors for heating swimming pools are often placed along fences. Other collectors are designed as freestanding structures in a yard. As fences and "man-made objects" many fall within the definition of structures, they may be regulated by any covenants or planning map restrictions referring to the size, appearance, or location of structures. Sometimes, however, they are given special attention:

No fence, wall, or hedge higher than __ feet shall be erected or maintained on the premises …. The style of all fences must [conform with the guidelines set forth in the development plan or be approved in advance].

No fences shall be located closer than __ feet to any street.

No fences shall be erected … on any lot nearer to any street than the minimum building setback line unless approved.

Grantee shall not place a fence in front of his dwelling unless it is a wooden "horse type" fence. Fences of other materials may be placed to the rear of the dwelling.

Although such rules allow for less flexibility in the placement of collectors, they may also afford solar access protection in some cases. In other words, a collector installed near a lot line is in less danger of shading from a neighbor's fence when the fence height is limited by covenants.

Requirements for Screening Utilities

Solar collectors are not the only utilities to encounter aesthetic objections. Over the last century, citizens have fought the appearance of each new visible utility. Electric power lines are often required to be buried, and pumps, air conditioners, pool heaters, and fuel tanks may be required to be screened. Solar equipment could be found to comprise a utility and be subject to requirements such as the following:

Each utility yard shall be screened by fencing or shrubbery with the height, design and materials to be approved by the Committee. The following buildings, structures and objects may be erected and maintained and allowed to remain on the lot only if the same are located wholly within the main residence or wholly within a utility yard: pens, … wood, fuel oil tanks, clothes racks and clothes lines, clothes washing and drying equipment, work shops, garbage cans, campers and trailers.

All telephones, electric and other utility lines and connections between the main utility lines and the residences or other buildings on each lot shall be concealed and located underground so as not to be visible.

A Catch 22-type problem may arise in communities that require solar equipment to be screened from view because height limits on the screens — walls, fences, and hedges — may make it impossible to fully shield the collector. Or a screen may have to be so high that it would shade the collector, unless the utility yard were unusually large.²⁰ Requirements that connections be underground do not create technical problems, although they do increase the cost of the solar option.

Vegetation Requirements

Covenants may require vegetation screens to be planted and maintained. Vegetation over certain heights may be prohibited in certain locations, such as near intersections, and there may be restrictions against the cutting of trees.

Each lot owner shall keep his lot free of tall grass, undergrowth, dead trees, ….

Protected natural areas: The northern 450 feet of the five acre tracts … and the southern 200 feet of the tracts south of the private drive … shall only remove large fallen timbers and must leave the natural undergrowth, small branches, and the naturally broken jagged tree stumps.

Protective screening areas are established as shown on the recorded plat, including a __ foot strip of land on the residential lots along the property lines of [arterial and other busy streets].

[11 ELR 50024]

Although the first of these excerpts would only serve to improve solar access and therefore encourage the use of solar energy, the second and third could make it impossible to find suitable locations for collectors.

Building Material Specifications

Covenants usually will only cover materials used on the exterior of structures:

No residence or structure of any kind shall be built of what is commonly known as "boxed" or "sheet metal" construction unless the same shall be covered over on all its outside walls with [stucco or brick or stone or metal or wood siding, as the case may be].

Said dwelling house and necessary outbuildings shall be in the style or form or appearance known as the Old Sante Fe [Pueblo-Spanish or modern or Oriental style of architecture].

In many cases it will be possible to design solar collectors to conform to these requirements. But covenants that ban picture windows, for example, may sometimes make the effective use of passive systems impossible. Rigidly written and enforced specifications of materials for exterior walls will prevent many types of solar systems.

Restrictions on Roof Construction

The following roof restrictions could also severely limit solar options:

No residence … shall have less than 99 percent of the roof surface of gable construction, and all gabled roofs shall be covered with shingles of wood or composition, or with slate or tile. All flat portions of any roof must be surrounded by parapets at least 5 feet above the highest point of such flat roof and such parapets must be finished of material to match the general character of the remainder of the building.

The parapets may be so tall as to shade the collectors placed on flat roofs. The requirement that 99 percent of the roof be covered with specified materials could make the installation of glass or plastic-surfaced collectors impossible.

Prohibitions on Activities Thought a Nuisance

It is extremely difficult to predict what neighborhood sociations, and even courts, will find to be a nuisance. This catch-all category is used in covenants to cover anything the developer may have overlooked.

No obnoxious or offensive trade or activity shall be carried on upon any lot, nor shall anything be done thereon which, in the judgment of the Committee, may be or become an annoyance or nuisance to the neighborhood.

Ground-mounted solar collectors that attracted the interest of children could be found to be an "attractive nuisance" if they were not well-fenced.²¹ The glare from a collector surface could also pose a nuisance. Where solar collectors are a conspicuous novelty, neighbors may even consider the resulting parade of sightseers and traffic to be a nuisance. Beyond these fairly specific and legitimate complaints, it is difficult to even guess at why solar systems may be found nuisances. If covenants explicitly refer to and allow collectors, they will not be found nuisances unless a sound reason exists.

Impact of Covenants Explicitly Controlling Collectors

The architectural committee of a large planned community recently issued guidelines for residential solar collectors²² that explain why such guidelines are of concern:

Solar technology is developing and at the present time installations feature large "collector" surfaces exposed to the sun, which can become highly visible elements and consequently can have a substantial aesthetic impact on residential neighborhoods.

The Architectural Committee is concerned that the possible proliferation of solar collectors in the future could effect [sic] adversely the visual quality of new and existing neighborhoods. Architecturally collectors appear inappropriate on traditional homes since they are contemporary in character and consequently are discouraged.

The reasonableness of these statements is beyond the scope of this guidebook. This community is not unique in its concern, however. Many community associations are drafting or considering similar covenants that directly control the appearance of collectors.

In some cases a homeowner may believe that clearly worded restraints in "solar covenants" are unreasonable. Or a neighbor may feel that the covenant is too lenient regarding the types of collectors allowed. In either case, the suggestions in Sections II and III offer the only remedies available at this time.

Many disputes will probably arise over the correct interpretation of solar covenants. Critical terms may not be defined. If paragraphs describing what collectors are acceptable are tacked on to a developer's current covenant package and not melded with the entire document, the collector specifications may be contradicted by other language or their usefulness greatly diminished by the impact of other provisions.

As noted above, while a collector is still being planned, zoning, building codes, and planning map restrictions should be examined as they also influence the choice and location of a solar system. Building codes, for instance, may require pipes and wires to be inside structures and may have many other safety provisions, such as those relating to roof structures, that affect collectors. Zoning [11 ELR 50026] regulates many of the same factors covered by covenants such as setbacks and heights, and sometimes even aesthetics.

The less specific a covenant controlling collectors is, the more likely problems are toarise. Terms such as the following should be defined when they are used; if they are not defined, opponents in a conflict may have to endure the trauma and expense of a court battle to have them clarified:

Solar energy system — are greenhouses, southfacing windows, and pools covered?

Solar collector

Retrofit construction, particularly with regard to free-standing collectors or those on accessory structures — are they new or retrofit construction?

Thermosiphon system, passive system, active system — these words all mean different things to different experts.

Integral part — what exactly is an integral part of a structure or of a roof?

Exterior surface — does it include what may be seen through glass or plastic cover?

Screened from view — from whose view? The person in the street or a neighbor looking out of an upstairs window?

Structures, temporary structures, outbuildings, sheds — are portable or inflatable collectors or greenhouses within the definition of these terms?

II. Pre-litigation and Non-litigative Strategies for Gaining Design Approval

In most cases it will be easier, and in some instances mandatory, to secure design approval through informal conciliatory measures before resorting to litigation. In many jurisdictions the homeowner must exhaust his association's review mechanism and the municipal appeal process before he can appear in court. And in some cases, it may be cheapest and most expeditious to seek relief through the legislature.

This section suggests to the lawyer representing a homeowner several non-judicial strategies for gaining approval to build or keep his solar system.

Education

The first and perhaps greatest obstacle the solar homeowner faces is the community's lack of familiarity with solar design features. Most individuals, public and private review boards, and other institutions simply do not yet have first-hand experience with solar concepts or solar applications of conventional hardware; they are therefore skeptical. The homeowner's lawyer will therefore spend a lot of time educating himself and others. The battle may well be won or lost on this level, so the lawyer should not be discouraged if repeatedly asked by lenders, realtors, developers, homeowners, and review boards to explain the difference between an "active" and "passive" system or to describe or show what a collector looks like. A patient and clear explanation will go a long way toward winning over potential adversaries.

In addition to its benefits from an environmental perspective, one of solar energy's strongest selling points is its potential to wean this country away from its precarious dependence on foreign oil and other conventional, depletable fuel sources. It will be helpful to make this point early on in the education process.

Pictures and on-site visits to solar homes convey the aesthetic impact more directly than words can and impress upon the viewers that solar technology is not merely experimental but can be and is cost-effectively applied in existing homes. It is helpful to get a local solar homeowner to talk about his experience — the cost of installation, the savings in conventional fuel costs, the attitudes of his neighbors, etc.

There are many resource groups that can help in the initial educational efforts. They include government agencies, private energy activist groups, and solar companies.

An important point to bear in mid is that the media is a powerful resource that may be used to raise community awareness. It has supported the solar homeowner in nearly every reported controversy that has arisen. But this resource has a Janus-like quality. In some cases, a reluctant financier, developer, or review board may decide to back the homeowner's solar plan rather than face the prospect of unwanted and often unfavorable publicity. On the other hand, media exposure or its threat may cause them to harden their positions and make conciliatory efforts more difficult.²³

Early Checklist

Conceptually, there are two strategies open to the homeowner if his solar plans run afoul of the community's aesthetic standards: he can change his design to fit the rules or he can get the rules changed to fit his design. In most cases, both the design and the rules will probably be changed somewhat to close the gap. Regardless of which strategy is pursued, the earlier he begins the negotiating process, the stronger his bargaining position will be. In the first place, the owner will have more design flexibility if he is incorporating solar features into a new home than retrofitting a solar system into a pre-existing residence. If the review board rejects the initial design, he can more easily come up with an acceptable design before the house has been built. Second, experience shows that if the homeowner begins to build his system before he has applied for the necessary permits, review boards are likely to view this as a threat to their authority and may reject the solar system on this basis.²⁴ Finally, if the homeowner is trying to change rules, he will have a greater chance of influencing what aesthetic standards are adopted in the early stages of a subdivision's development.

The best strategy to pursue depends on the facts of each situation. Following are questions to ask at the outset of planning:

Has the client's home been built yet?

If not, is he buying it on "spec" from the developer, or is he buying the lot on which he plans to custom-build his home?

What appearances, uses, and/or activities do the subdivisions's restrictive covenants prohibit or make subject to approval by the architectural review board?

Do the covenants contain language governing their modification or termination?

What appearances, uses, activities are regulated by [11 ELR 50027] the public sector through zoning ordinances, planning code, and building codes?

What are the rules governing the powers of review, composition, and succession of the private and public review boards?

Has the solar system been built yet?

What is the design of the solar system (either built or planned)?

Has the local or state jurisdiction manifested a public policy regarding solar development through executive orders, legislation (including tax incentives) ordinances, or case law?

Unfortunately, many homeowners do not seek approval from their review board or get the necessary zoning variances or building permits before they build their system. Then they are unpleasantly surprised when they receive notice fromtheir review board that the system violates a restrictive covenant or municipal regulation and must be removed. This may be the first point at which a lawyer's advice is sought. This situation is addressed later in this section, but the following discussion assumes a more desirable set of facts where the homeowner consults his lawyer before he has begun to build his solar system.

Prospective Strategies

The situation here is that the homeowner wants to buy a lot or new home (either under construction or completed) in a subdivision and plans to build solar features into the home, but he has not yet signed any contract papers. The first step the lawyer should take is to examine the subdivision's restrictive covenants and the zoning ordinances, planning code, and/or building code of the municipality (i.e., city, county, borough or township, as applicable). In a few cases, such covenants and ordinances expressly regulate solar designs.²⁵ But the great majority of private covenants and municipal provisions regulate solar aesthetics only implicitly, through design review requirements, restrictions on roof construction, setback and yard requirements, building material specifications, and other provisions discussed in detail in Section I of this article. In determining whether any regulations affect the contemplated solar design, it will be helpful (if not essential) to have at least the preliminary engineering and aesthetic details of the plan in hand. From the initial examination of covenants and codes, it may become obvious that a change in design is necessary. The homeowner can decide at this point whether the regulations pose too great a barrier to warrant carrying out his plans to buy or build a home in the subdivision or jurisdiction.

Regardless of who is building the house — the prospective homeowner or the developer, either on its own or as a subcontractor to a professional builder — the on-site digging and thereafter any building alternations cannot begin until the necessary building and zoning permits have been obtained. Even with the legal clearance, however, construction will not begin without front-end financing. Thus, before the prospective homeowner locks himself in by signing a sales agreement for a lot or a house that he intends to "solarize," he will want to secure the financing and requisite public and private permits to build the house with the contemplated solar features.

Financing

The limited experience to date shows little resistance on the part of lending institutions to financing solar homes. For speculative housing, where construction financing and sometimes permanent financing is arranged by the builder, loans for solar homes have generally been approved based on the builder's good reputation and past dealings with the lender. Similarly, solar homeowners have not encountered special problems with mortgage availability or terms, such as higher interest rates.²⁶ It appears that financiers will continue to rely on conventional indicia for getting the full return on their investment in solar home mortgages, i.e., the mortgagor's salary, personal reputation, and the house's value as collateral. Should a particularly conservative lender or tight money market be encountered, it may be useful to make the following points on the economics of conventional versus solar heating and cooling: (1) as conventional fuel costs continue to rise over the life of the mortgage, meeting monthly utility bills will increasingly impair the homeowner's ability to meet monthly mortgage payments; and (2) conventional heating and cooling systems will have a depressing effect on a house's resale value as fuel costs rise, while solar features will continue to enhance its marketability and value.

As a practical point, prior to applying for the permits necessary to begin construction, the lawyer should obtain from the lender a letter stating it will grant the construction financing or mortgage provided the requisite permits for the solar design are granted.

Permits and Design Approval

Private review boards, municipal planning commissions, and zoning and building permit boards (hereinafter called "review boards") should be approached with (1) the lender's letter, (2) detailed plans and schematic and architectural sketches of the proposed solar system,²⁷ and (3) an estimate of what percentage of the house's energy demands the solar system will provide and prognosis of the monthly or annual energy dollar savings.

From his examination of covenants and codes, the lawyer [11 ELR 50028] can expedite the approval process by pinpointing for the review boards potentially troublesome provisions. The private covenants most likely to be applied to solar designs have been identified above and will probably present the greatest challenge in most cases. In the public sector, the zoning ordinances most frequently involved are those setting height limitations and setback requirements. Occasionally, a scenic view ordinance regulating rooftop construction may be encountered.²⁸ Building codes regulate health and safety issues. Two common provisions are relevant to solar designs: (1) the requirement that any rooftop additions do not exceed snow, wind, hail,or other roof-load limitations, and (2) the requirement that any nonpotable substance (such as the fluid often used in active liquid systems as the heat transfer medium) flowing through a residential plumbing system be kept separate from the drinking water supply.²⁹

Experience shows that zoning and building codes do not usually pose serious problems for residential solar systems, and where delays in design approval have occurred, this has been "attributed … to the code officials' unfamiliarity with solar technology rather than the code itself."³⁰ Nonetheless, the solar plans must be disclosed in detail when the zoning and building permits are applied for. If they are not, the solar system will remain subject to challenge after it is built. Problems can arise when the homeowner wants to sell his house and finds that the occupancy permit, which generally reiterates the terms of the building permit and is necessary to pass title, is not valid because the solar system is not within its purview.

A word of caution about permits: do not rely on assurances by the builder or installer of the solar system that he has obtained or will get all necessary permits. One homeowning couple, whose case is summarized in Section IV of this article had their roof collector installed by a contractor that, they maintain, assured them it would obtain any necessary zoning and building permits prior to installing the system. After it was installed, they discovered that their collector violated an ordinance prohibiting rooftop structures and equipment. In order to gain approval to keep the system, they had to move the eight solar panels from one roof to another and modify the design.³¹

Sales Agreement

With the financing agreement and the public and private permits in hand, the homeowner may safely proceed to review and sign the sales agreement. This agreement should include, as Exhibit 1, the solar plans and specifications so there will be no ambiguity at a later time as to the details of the approved design.

Strategies for Gaining Design Approval

The discussion thus far in this section has laid out the sequence of steps that should be taken prior to buying a house with the intent to solarize it. The rest of this section deals with specific strategies the homeowner may use to obtain the permits and design approval from the private and public sectors. Except where noted below, the suggestions are equally valid for fact situations where the home has already been purchased and the homeowner seeks approval to build a solar system or keep it intact.

Arguing for a Non-conflicting Interpretation

The easiest way to gain design approval is to convince the review board that the solar design does not violate or come within the purview of the covenant(s) or municipal ordinance(s) in question.

In interpreting a provision, it is useful to examine the intent of its drafters. For instance, a restriction on ancillary structures may have been adopted specifically to prohibit unsightly TV antennae at a time when they were becoming popular in suburban communities. The older a provision, the less likely it was intended to regulate solar designs. The homeowner may argue for a narrow construction in these cases, or in any case where a key term is ambiguous, on the ground that any restriction on landuse is in derogation of the common law principle favoring the free transferability of the land.

Arguing "Reasonableness"

Sometimes approval will be granted not because the solar design is good but because the covenant or ordinance is bad. A provision that prohibits solar designs absolutely is probably unreasonable, while one that merely regulates building material, design, or location may be reasonable depending on other uses and appearances in the neighborhood.³² Similarly, any other provision that applies strictly to solar designs and structures and not to other utilities and structures is at least prima facie unreasonable.³³

Conversely, the homeowner may argue for exemption from a provision because of the special engineering and orientation requirements of solar systems. Thus a prohibition against erecting utilities or structures visible from the street may be reasonable when applied to an air conditioner, fuel oil tank, or tool shed since these can usually be placed elsewhere on the property without losing their effectiveness. But when applied to a solar collector it may be unreasonable if the only unshaded ground or southsloping roof faces the street and no alternative sites exist on the property; in this case the homeowner must forego the use entirely if the provision is enforced.

By examining the language and purpose of the covenant or ordinance at issue, its intended and unintended effect on solar facilities versus other uses, and the standard of the community, the homeowner may convince the review board that the provision is unreasonable if construed to prohibit his particular design.

Changing the Solar Design

This approach is feasible where the changes can be made without incurring unreasonable costs or reducing [11 ELR 50029] the system's energy efficiency to a point below cost-deffective operation. Usually, such changes will be cheaper and easier to make before the system is built, but in some cases the homeowner may have to make design changes on a system already built if, for instance, the review board remains obstinate on a restrictive provision. Obviously, the homeowner will want to consult closely with the review board on any contemplated design changes and obtain the permits and approval before he begins to build the system with its modifications. The APA handbook is a useful source to consult throughout this process.

Changing the Rules

If design and existing regulations cannot be reconciled, the homeowner can seek to have the latter amended, modified, terminated, or repealed, as appropriate. In the case of private restrictive covenants, he can execute and record a written release between himself and covenant beneficiaries.

Contract law governs the process of executing covenant releases. Covenant beneficiaries surrender their right to enforce the covenant against a homeowner who gives consideration for the release, usually in the form of a nominal payment to each of them.³⁴ In theory, a homeowner would need a release from all parcel owners in the subdivision, the homeowners' association, and the developer, if it owns any parcels, since they are all beneficiaries and can sue under the covenants. This could be onerous in large subdivisions, but in practice, it may be sufficient to obtain releases only from the immediate neighbors. Remote neighbors will be unlikely to sue, and if the review board sees that those most affected by the solar design have waived their rights to object to it, it may withdraw its own objections and grant approval.

The weakness in the covenant release approach is that it does not bind beneficiaries who have not signed the release or purchased or otherwise become owners of property subject to a release. The homeowner will always stand the risk of being sued under the covenant by these beneficiaries.

An alternative to the release approach is to follow the subdivision's bylaw process for modifying or terminating covenants. The bylaws of some subdivisions require unanimous agreement among beneficiaries to modify or terminate a covenant, but most bylaws the authors have examined require less than unanimity. In some subdivisions, the bylaws provide a limited life span for covenants, such as 20 years, after which time they automatically expire unless affirmatively renewed by a vote of the necessary percentage of homeowners. Thus, a troublesome covenant, while still on the books, may have been terminated by the simple passage of time.

In older subdivisions (particularly those built before World War II), the bylaws frequently do not create a process for modifying or terminating covenants. Nonetheless, a litigated court decree modifying or terminating the covenant may not be necessary. Covenant beneficiaries may by a unanimous consent agreement remove the unwanted covenant language.

The advantage of modifying or terminating a covenant through the bylaw process or, where it is silent, by consent agreement is that it is a permanent remedy. The homeowner will not remain subject to being sued by beneficiaries not bound by a release, for the covenant's obligation has been removed forever. A disadvantage to this strategy is that present beneficiaries may be less willing to change or extinguish a covenant, which may be usefully applied to situations other than solar designs, than they will be to execute a release for the solar homeowner's one specific case. The homeowner must weigh the relatively harder task of removing undesirable covenant language against the risk of being sued by beneficiaries who are not parties or successors in interest to a release agreement.

Appealing Adverse Decisions

The bylaws of homeowners' associations commonly provide for review of the aesthetic review board's decisions by a panel composed of several members of the association's governing body. In some cases their decision is in turn reviewable by the full panel of the association.

In the public sector, most jurisdictions require a homeowner to exhaust his administrative remedies before he can take his complaint to court. A board of adjustment usually hears appeals from refusals by the municipality to grant a building permit or zoning variance. Most such appeals have to be denied because there is no room in the language of the zoning ordinance or planning or building code for the varying use. The homeowner's most practical next step is to go back to the municipal planning commission (if one exists) and persuade it to recommend an amendment to the ordinance or code. As noted in the first part of this article, recommendations by the planning commission are often routinely adopted by the municipal legislative body.

Proposing Community Solar Guidelines

Since many review boards are not familiar with solar design concepts, they may be reluctant to grant approval in the absence of objective standards to apply to the homeowner's particular design. In such cases, the homeowner may further his cause by drafting for the board's adoption solar aesthetic guidelines for the subdivision or municipality.³⁵ Architects and local self-help energy [11 ELR 50030] organizations³⁶ can offer technical support in drafting guidelines suitable for the particular community.

The review boards should also participate in the drafting process. By establishing standards prospectively, they will become familiar with solar design concepts, will be able to retain aesthetic control in their communities, and will avoid case-by-case resolution of subsequent disputes.

It is helpful to include symbolic, pro-solar language in the purpose clause of the guidelines. The following language is an example:

The [name of review board] finds that:

(1) the use of conventional fuels to meet residential space heating and cooling and hot water requirements adds significantly to the cost of operating a home;

(2) this condition reduces a home's market value individually and the market value of homes in [name of subdivision or municipality] generally, and;

(3) this situation is expected to worsen in the coming years as conventional fuel supplies are depleted, resulting in spiraling fuel costs.

Accordingly, it is the policy of this review board to encourage the use of solar energy systems³⁷ for heating and cooling needs in [name of subdivision or municipality] homes, and to remove obstacles thereto.

This language may be followed by a clause creating a special standard of review for solar designs. There is some precedent for this approach in the two-tiered scrutiny used by many review boards. Under this system, proposals are generically classified as major or minor; the latter are subject to a less rigorous review by the board. Solar designs could be designated in this clause as minor proposals.

Drafting proposed guidelines for the board is a useful strategy if the homeowner's solar design has initially been rejected because of the lack of objective standards against which to measure it. Since developers rarely write their own aesthetic guidelines or specific covenants and private review boards often have no members with the technical expertise to draft solar guidelines, the homeowner may tip thebalance in his favor by doing the technical drafting himself.

Gathering Neighborhood Support

In several of the cases reviewed below, the homeowners circulated petitions and solicited letters of support from neighbors stating the latter did not object to the proposed solar design. In some, but not all, instances this was a major factor in influencing the board to grant approval. According to the owner of a solar installation business in Columbia, Maryland, prior approval by neighbors has been quite important in the cases be has observed; generally, if the neighbors approve, the Columbia Architectural Committee has approved the design as well.³⁸ Thus, if the lawyer anticipates board resistance to his client's design, he may find it useful to elicit neighborhood support before meeting with the board for the first time.

Seeking a Legislative Remedy

In some cases, none of the conciliatory approaches outlined above will yield success. Before resorting to the courts, the homeowner may want to seek relief through his state legislature. This may be cheaper, faster, and more successful than protracted litigation. Several states have enacted or are considering legislation that makes unenforceable any ordinances or private deed covenants that prohibit or place unreasonable restrictions on the installation of solar energy systems.³⁹ Under California law, "unreasonable" restrictions are broadly defined as those which significantly increase a system's cost, significantly reduce its efficiency, or do not allow comparable alternative systems.⁴⁰ Colorado has adopted a stricter definition of "unreasonable," limiting it to restrictions that significantly raise a system's cost.⁴¹ The California law applies retroactively to covenants and ordinances in effect prior to its enactment, while the Colorado law has prospective application only.

[11 ELR 50031]

Legislation of this type raises a question regarding the constitutional limitation on the power of states to interfere with privately bargained-for contract rights.⁴² Although the issue has not been extensively litigated, at least two exceptions to the general proscription have been established that are relevant to this kind of solar legislation. First, legislation that alters contract rights only prospectively is usually held to be permissible constitutionally.⁴³ Second, courts have historically been more lenient in upholding legislation which alters contract obligations where the legislation embodies a significant public policy.⁴⁴ The constitutional question is addressed at greater length in the next section under the discussion of public policy.⁴⁵ In any event, the legislative remedy should be seriously considered before approaching the courts because judges will undoubtedly be reluctant to "make" public policy, in an area where the legislature has not acted, by not enforcing a private agreement that impedes the development of solar energy.

III. Litigation Strategies

In those cases where the parties cannot settle informally and go to litigation, it will be useful to develop the client's legal argument in the context of the procedural strategy most advantageous to him. Following is a presentation of legal theories and procedural options.

Remedy: Equitable or Legal?

The cornerstone of a strategy is the remedy being sought. There are several remedies, legal and equitable, that can secure the homeowner's right to build or keep his solar system: (1) declaratory judgment setting forth the parties' respective rights; (2) termination or modification of the covenant; and (3) injunction against covenant enforcement; and (4) money damages in lieu of enjoining the system. Whenever possible, the attorney will want to plead multiple remedies in the alternative.

The ambiguous nature of the restrictive covenant allows some latitude in pleading remedies. If a covenant is cast as a contract right (an easement), the appropriate remedy for its breach is damages at law. If it is characterized as a property right (an equitable servitude) the remedy is an injunction. Although the covenant has elements of both easements and equitable servitudes, the practice in most courts is to treat it as an equitable servitude subject to equity jurisdiction.⁴⁶ This can be an advantage if the plaintiff is seeking the equitable remedies of terminating the covenant or enjoining its enforcement.

If the homeowner is the defendant seeking to avoid an injunction against building or maintaining a solar system, he can in some cases avoid equitable relief even under the theory of a restrictive covenant as an equitable servitude. He can argue under the first principle of equity jurisdiction that equitable relief should not be granted where there exists an adequate remedy at law.⁴⁷ Generally, if damages caused by the covenant breach are readily ascertainable, the legal remedy is adequate.⁴⁸ If client as the defendant can translate the aesthetic injury of the solar system into a concrete loss in market value in neighboring homes, he may be able to pay nominal damages in lieu of having his system enjoined.⁴⁹

The defendant can also argue that the balance of the equities favors legal damages over injunctive relief. This is sometimes referred to as the doctrine of relative hardships.⁵⁰ Damages may be minimal if it is pointed out that [11 ELR 50032] long-lived covenants, and particularly those that prohibit or unreasonably restrict solar energy systems, diminish rather than enhance the value of real estate by impairing its transferability.⁵¹

To summarize, the attorney must decide in preparing his case whether he wants the court to exercise its equity powers. As plaintiff, his client will pray for equitable relief in the form of a decree extinguishing the covenant or an injunction blocking its enforcement. The majority view of a covenant as an equitable servitude will support an argument for equitable relief. As defendant, his client will ask the court to refrain from exercising its equity power to enjoin the construction or maintenance of the solar system. A prayer for relief may plead for legal damages in lieu of the injunction on the theory that damages are adequate and ascertainable and on the theory that the balance of equities favors the remedy of damages over an injunction.

Type of Action: Declaratory Judgment, Sue or Be Sued?

As part of litigation planning, the attorney will weigh the benefits and drawbacks of each type of available legal action. Following is a discussion of the types of actions the homeowner can bring, or wait to have brought against him, and the legal arguments available under each of them.

Declaratory Judgment

This is an appropriate action where construction of the solar system has not commenced and the review board has not yet issued a permit denial. In some jurisdictions, declaratory judgment may be sought following permit denial as well.⁵² The parties seek from the court a binding declaration of their respective rights and duties regarding the restrictive covenant and solar system at issue.

This option is desirable if the homeowner has not yet built his system because the legality of his proposed action can be determined before he commits his time and money. If he has already built the system, a declaration of rights and duties is not enough; a court order either enforcing the covenant (by ordering the homeowner to alter or remove the system or pay damages) or terminating, modifying, or refusing to enforce it (by allowing the system to remain) will be necessary.

To invoke the judicial process of a declaratory judgment, there must be a justiciable controversy. This means that, at the least, there must be some basis for believing the review board opposes or will oppose the design.⁵³

In procedure and substance, an action for declaratory judgment is no different from the usual actions. The same rules of jurisdiction, standing, pleading, and evidence apply, and the same legal arguments are made. Its distinct feature is the prayer for relief, which does not ask the court to impose damages, issue an injunction, or terminate the covenant, but asks only for a declaration of the parties' respective rights and duties.⁵⁴

Action to Enjoin Enforcement of the Covenant

There is no hard and fast rule as to when the actions taken by a review board amount to enforcing the covenant. One court may view permit denial as enforcement and thus entertain an action to enjoin the same; another court may conclude that enforcement does not begin until the board sues under the covenant and that the homeowner's action is premature at any point before that. To avoid difficulties over the "ripeness" issue, the plaintiff-homeowner may initiate an action pleading the declaratory judgment and the injunction as alternative remedies. The following language is an example:

In view of the above allegations, Plaintiff respectfully asks the Court to declare the respective rights and duties of the parties to this action regarding the covenant(s) and solar design at issue [if it finds that Defendant has not yet acted to enforce the covenant].

In the alternative, Plaintiff asks the Court to enjoin the Defendant from enforcing [enumerate covenants] in such a way as to preclude the Plaintiff from building [and/or operating her/his] solar system.

In an action to enjoin covenant enforcement, the homeowner is asking the court to exercise its equitable powers. He will therefore want to characterize the restrictive covenant as an equitable servitude (property right).

Two lines of argument emerge for issuing an injunction against covenant enforcement:

1. Covenant interpretation. The homeowner may argue that his design does not come within the purview of the restriction. Two arguments exist to support this position: (1) a restrictive covenant is written in derogation of the common law which favors the free transferability of land and must therefore be interpreted narrowly; and (2) the covenant, when written, did not contemplate solar designs and was not intended to apply to them.

The first argument applies to all covenants since it is a principle basic to the common law of property. Definitions of key words, such as "ancillary," "appurtenant," "temporary structure," "utility," and other terms common to aesthetic restrictions will often determine whether the solar design comes within the covenant's purview, and the attorney will want to urge a narrow interpretation in all cases. Thus, it might be argued that covenants that are otherwise reasonable (e.g., those restricting size, location, or appearance of utilities or other structures) are unreasonable [11 ELR 50033] if their effect is to reduce a home's marketability and tie up land.

The second argument, that of inapplicability, can be made against older covenants because it might be shown that the covenant was written in a pre-solar age to protect specifically against unsightly TV antennae, air conditions, and other paraphernalia then in common use.

The solar design may not come within the covenant's ambit for reasons other than definitional. These include the doctrines of acquiescence, abandonment, and change of conditions, which are commonly characterized as equitable defenses. They are discussed as defenses to an action to enjoin the solar system, infra.

2. Public policy. A second line of argument for enjoining covenant enforcement is that although the solar design contravenes the aesthetic intent of the covenant, the court should not enforce the covenant as a matter of public policy. This argument will be most viable in jurisdictions that have adopted legislation nullifying ordinances or covenants that unreasonably restrict solar installations or otherwise have manifested a clear pro-solar policy through solar access legislation, tax incentives, executive orders, funding of solar programs, and case law. Even if the local jurisdiction has not taken a strong position on solar issues, there exists at the federal level a clear public policy favoring solar development.⁵⁵

Establishing that a solar policy exists is the first step. The court must further be convinced that, in the case of a covenant, the policy warrants judicial intervention in a private sector land-use mechanism. Since the characterization of a restrictive covenant as a property rather than contract interest is logically consistent with the equitable remedy sought, the attorney may be able to avoid altogether the constitutional "impairment of contracts" issue. But since in practice courts frequently treat covenants as having elements of both contract rights and property interests, the attorney should be prepared to meet the constitutional challenge to enjoining covenant enforcement.

The U.S. Constitution limits the power of states to interfere with privately bargained-for contract rights.⁵⁶ Case law has carved out an exception to the general proscription; implicit in every contract is the reserved right of the state to exercise its police powers to protect the public interest.⁵⁷ The criteria for invoking these residual powers vary among jurisdictions, but a few general principles may be observed.⁵⁸

In the leading case on the Contract Clause, the U.S. Supreme Court held that economic factors may warrant exercise of the police power even though such action interferes with existing contracts.⁵⁹ Although this case was decided in the context of the Great Depression in the 1930s, the argument may be made that its principles are applicable to current economic conditions created by the energy crisis. Courts now, as then, have the discretion and the duty to carry out public policy declared by the legislative and executive branches and to make policy where those two branches have not acted.⁶⁰

Action to Enjoin the Solar System

In many cases, the client may go ahead and build his solar system without gaining the board's approval, taking a risk that the latter will not initiate court action to remove the collector. If one does not view formal plan disapproval by the board as enforcement of the covenant ab initio, this action may also be characterized as an action to enforce the covenant.

Once the system is built the client will gain nothing by bringing an action to enjoin covenant enforcement. His construction costs have already been incurred, and litigating the legality of the system at this point will not protect his investment risk as it would have if done prospectively. He will probably want to adopt a "wait to be sued" attitude.

Unlike actions where the homeowner is the plaintiff, [11 ELR 50034] here the homeowner seeks to dissuade the court from exercising its equitable powers of relief. The best strategy for doing this depends on the theory or theories of defense chosen, as the following discussion explains.

Three major lines of defense emerge in an action to enjoin the solar system:

1. Covenant interpretation. As in an action to enjoin covenant enforcement, one may argue that a reasonable reading of the covenant does not prohibit a solar system such as the one at issues.⁶¹ If this is the sole line of defense, the argument can proceed under the contract theory of the restrictive covenant and urge the court that as a contract right the covenant should be enforced, if at all, by legal damages rather than an injunction.⁶² Since the "covenant as contract right" is the minority view, the attorney should be prepared to plead and argue in the alternative that, assuming arguendo the covenant is a property interest, an adequate remedy exists at law (damages), and an injunction should therefore not issue.⁶³

2. Public policy. As in the other actions, this is a strong argument. Here again, the remedy will define the contours of the substantive argument. In contrast with the other actions, the homeowner as defendant in this action wants to avoid an injunctive remedy. By arguing that the covenant is a property right, the attorney may avoid the Contract Clause problem, but he is then in a weaker position to argue that damages (a contract remedy) is the proper remedy. He will have to weight (1) how strong the impairment of contract argument is against his case and (2) how strong a case he can make for the primary of damages over an injunction notwithstanding equitable jurisdiction.⁶⁴

Defense against the impairment of contract argument and against the plea for an injunctive remedy can be made in the following way: public policy warrants a judgment for the defendant, but if the court finds the plaintiff is entitled to relief, (1) the obligations underlying the covenant will be preserved, (2) the relative hardships of the parties will be more equitably allocated, and (3) the public policy of encouraging solar development will be carried out if the court awards the plaintiff damages in lieu of enjoining the defendant's solar system.

3. Equitable defenses. To raise the equitable defenses of acquiescence, abandonment, change of conditions, or more generally laches, unclean hands, etc., the attorney must characterize the covenant as an equitable servitude and forego the argument that it is a legal contract right for whose breach damages are appropriate. In addition to the equitable defenses discussed below, one may avoid the injunctive remedy under the doctrine of relative hardship and the principle that equitable relief will be denied if an adequate remedy exists at law, both of which are discussed supra.

Waiver, Acquiescence, or Estoppel

To establish this defense, the attorney must show that the covenant beneficiaries have in the past allowed the covenant to be violated by other homeowners.⁶⁵ Knowledge [11 ELR 50035] by the acquiescing parties of the factual claims supporting the waiver must be shown in order to raise the defense, as for instance when the covenant beneficiaries have permitted the construction costs of the solar system to be incurred notwithstanding the existence of covenants prohibiting such a structure.⁶⁶

Since collectors and other solar paraphernalia are relatively new and rare features in existing subdivisions, it is difficult to predict how successful this defense will be. Most likely it will depend on whether courts in the local jurisdiction require a showing that identical or merely similar structures, such as roof air conditioners, have in the past been permitted by the review board.

Abandonment and Change of Conditions

Like acquiescence, these defenses are grounded in the notion that when a covenant is no longer observed in practice by the review board and homeowners, it should not be enforced. Abandonment is harder to prove than mere acquiescence; the court must be convinced that there has been an intent by the residents to abandon the general scheme or plan in the community.⁶⁷

Closely related to abandonment is the defense of change of conditions. In both defenses the question before the court is whether there has been sufficient change in the community to warrant nonenforcement of the covenant. The same general factors are considered and, like abandonment, the attorney must show that conditions have so changed since the covenant was writtenthat it is no longer possible to secure its intended benefit to "a substantial degree."⁶⁸ Change of conditions differs from abandonment in the following way: in abandonment the changes have taken place within the community (i.e., the covenant beneficiaries have abandoned the use) whereas in change of conditions, the changes have occurred outside or on the fringes of the community, such as where land uses at the subdivision's boundary have changed from residential to commercial.

The usual remedy for both change of conditions and abandonment is termination of the covenant rather than just a denial of injunctive relief against the solar system. Thus, if either of these defenses is raised, the attorney may, after denying in responsive pleading that an injunction against the solar system is warranted, plead for an injunction against the covenant's enforcement and for termination of the covenant as alternative remedies.

IV. Case Histories

Following are case histories of solar homeowners who have challenged aesthetic restrictions before review boards, public and private, and in the courts.

The Kraye Case

Howard Kraye, a resident of Valencia, California, County of Los Angeles, lived in the Old Orchard Association subdivision, where homes range from $100,000 to $140,000. Kraye was interested in installing a domestic "open loop" hot-water system, which would have two glazed collector panels together covering 64 square feet. The panels were to be mounted on the south-sloping garage roof of his house and, due to the garage's orientation, would be visible from the street. Although none of Kraye's neighbors objected to the proposed collectors, Article X, § 12 of the Covenants, Conditions and Restrictions (CC&Rs) of the Association provides:

In addition to the Architectural Control provided pursuant to Article VIII hereof, appliances or installations upon the roofs of structures shall not be permitted unless they are installed in such manner that they are not visible from neighboring property or adjacent streets.

Article VIII of the CC&Rs specifies:

No building, fence, wall, or other structure or landscaping shall be commenced, erected, or maintained upon the Properties, nor shall any exterior addition to or change or alteration therein or change in the exterior appearance thereof or change in landscaping be made until the plans and specifications showing the nature, kind, shape, height, materials, color, and location of the same shall have been submitted to and approved of in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board or by an Architectural Committee composed by three (3) or more representatives as provided in the By-Laws of the Association.

Kraye applied to the Association's Architectural Committee for a permit to build his system. The Committee denied the permit on the ground that the collector panels would be visible from the street. It stated it had approved other solar designs in the subdivision because the collectors were not visible either from the street or from neighboring properties.

Kraye appealed the denial to the board of directors, a group elected by the homeowners. When the board upheld the denial, again on the visibility ground, Kraye decided to pursue legal action. In August 1977 Kraye and his wife filed a complaint for declaratory relief in state court.⁶⁹ They contended that Article X, § 12 of the CC&Rs is unenforceable, in violation of public policy, and invalid in that:

it deprives plaintiffs of the right to benefit from state tax laws concerning solar heating installations:

it deprives plaintiffs of the property right to receive light and heat over land, in contravention of the California Civil Code;

it is contrary to public policy and welfare which encourages [11 ELR 50036] and promotes the installation and use of solar heating and collection facilities and the preservation of natural resources; and

it is arbitrary and ambiguous and thus unenforceable.

Plaintiffs sought a judicial determination of their rights and duties and a declaration as to the validity of the CC&Rs as applied to their solar system.

In January 1978 plaintiffs filed a motion for summary judgment, raising as the primary legal issue whether a use restriction contained in recorded CC&Rs can be rendered unenforceable because of (1) changes in the environment making such a restriction contrary to public policy or (2) changes on or in the area of the subject property which defeat the purpose of the restriction. Plaintiffs argued that the solar plates would not damage the value of the residence, while enforcing the restrictive covenant would place burdens on the plaintiff, community, and the environment and afford no benefit to the defendant.

The public policy argument was especially important in this case. The plaintiffs raised the following points:

1. Public Policy Requires Nonenforcement of the Restriction.

that which is against or has a tendency to be injurious to public welfare is contrary to public policy;

a contract that is against public policy is illegal and void and will not be enforced either by specific performance or damages;

although this is usually a legislative function, the courts have the power to declare void as against public policy contracts which are clearly injurious to the interests of society;

the instant case requires the public policy protection of the court until such time as the legislature may act.

2. The Law and Public Policy Have Always Required Conservation of Resources.

historically, waste has been deplored by the law;

under the California Civil Code, the concept of nuisance is defined generally as an obstruction to the free use of property so as to interfere with its comfortable enjoyment;

consequently, acts which reduce the services available to the property and thereby interfere with its comfortable enjoyment are to be prohibited.

3. Recognition of Energy Sources and the Need to Preserve the Same Has Been Recognized by the Legislature.

legislation (citing the Public Resources Code) declares state policy favoring conservation, reducing waste;

this legislation reflects the legislature's recognition of the energy crisis.

4. Property Owners' Rights to Sunlight for Solar Energy Use is Recognized by the Local Government.

the L.A. City Council adopted in 1974 an ordinance requiring construction of buildings in such a way as to avoid the casting of shadows therefrom upon any resident for more than two hours between 8:00 a.m. and 8:00 p.m.;

a working paper drafted by the Dept. of City Planning concerning property owners' rights to sunlight notes the benefits of solar energy.

5. Legislative Incentives Exist for Use of Solar Energy Devices.

California tax credit exists for installations of solar equipment on homeowners' property, in the amount of $1,000 or 10 percent of the cost, whichever is less;

the California tax credit is a clear statement of policy by the state that conservation is needed and the use of solar energy is to be promoted.

The plaintiffs concluded that (1) the solar plates are not offensive and do not alter the value or salability of plaintiffs' or other property in the neighborhood and (2) the restrictive covenants should not be enforced because of the energy shortages and because they provide no real benefit to the property owners, yet are harassing and oppressing the plaintiffs. The relief plaintiffs sought was that the CC&Rs, to the extent that they prohibit solar devices, be declared unenforceable.

Defendants filed a motion for summary judgment in August 1978 making the following counter-arguments:

1. The CC&Rs Apply To Solar Energy and Should Be So Construed.

other methods for collecting sunlight and solar energy are available to the plaintiffs; no showing is made that the plaintiffs are limited to roof installation only;

the original purpose of the CC&Rs, to protect property values, is still controlling;

so long as the Architectural Committee's decision was reasonable, its judgment must be accepted;

no actual damages need be shown to enforce the covenant;

the Architectural Committee, charged with the protection of property values in the subdivision, made the determination that the solar panels would be injurious to the subdivision.

2. Equity Should Enforce the CC&Rs As To Do So Would Not Contravene Public Policy Nor Violate Traditional Equitable Doctrines.

defendants concede that there is a strong public policy, state and federal, in favor of the development of alternative energy sources and that said policy recognizes the need to further the development of solar energy resources;

public policy does not justify the impairment of contractual obligations between private parties solely to permit isolated individuals personally to utilize one aspect of solar energy technology; this violates both state and federal constitutional rights.

3. Changed Circumstances Argument Not Applicable.

the equitable doctrine of changed circumstances is applied only where the original purpose of the restrictions can no longer be attained;

the mere fact that the changes may have greatly increased the burden on the servient tenement is not enough to constitute "changed circumstances" where the original purpose can still be achieved;

the original purpose for the restrictive covenants — to preserve the aesthetic appearance of the development and to safeguard property value — will be furthered so long as the plaintiffs are not allowed to install their aesthetically inharmonious roof-top solar panels.

The defendants argued in conclusion that in view of the restrictive covenant's purpose and because of constitutional provisions regarding the impairment of contract, it would be a violation of the Constitution to invalidate the restrictive covenant for public policy reasons; further, they alleged that plaintiffs had failed to demonstrate why it would be inequitable to enforce the restrictive covenant.

[11 ELR 50037]

Several homeowners' associations in Orange County filed an amicus curiae brief, raising the following arguments on behalf of the defendants:

1. Restrictive Covenants, Equitable Servitudes, and their Enforcement.

the enforcement of any restrictions is dependent upon equitable doctrines;

California case law establishes that "there be a sufficient number of violations [of the covenant] so that the purpose of the general plan is undermined."

the instant case does not meet this criterion.

2. Public Policy Attack.

case law precedent exists that if a contract conforms to the public policy of the state when made, a subsequent change in public policy will not nullify the contract.

since the California legislature and the United States Congress have not yet enacted legislation prohibiting the use of covenants in the regulation of the aesthetics of private use and development of solar energy, the covenants are statutorily valid as to private solar energy use;

it is usually for the legislature to determine what is unlawful and what contracts should be considered void.

Intitially, Judge Raymond Cardenas had planned to grant summary judgment for the defendants. The California Attorney General intervened and asked for a continuance, stating that the California Solar Rights Act, then pending in the legislature, would be signed into law within the next two weeks. The continuance was granted, the Act was passed⁷⁰ and Judge Cardenas subsequently granted summary judgment for the plaintiffs.⁷¹

The sum of $2,500 was determined by the court to be reasonable attorney's fees. However, Kraye actually spent approximately $7,000 in legal fees.

Armond Piscopo

Armond Piscopo, a homeowner in the planned community of Montgomery Village, Maryland, wanted to install two black convex solar collectors on the roof of his home as part of a domestic hot water system. Because the front of his house faced south, the collectors would be visible from the street. In August 1977, while he was applying for the necessary permits, he found his efforts blocked by the neighborhood Architectural Control Committee.

Residents of Montgomery Village are bound by certain covenants, conditions, and restrictions (CC&Rs). Article VIII, § 1 of the CC&Rs provides that:

… no building, fence, wall, or other structure shall be commenced, erected, or maintained within Whetstone [a subdivision in Montgomery Village] nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, color, and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors of the Montgomery Village Foundation or by an Architectural Control Committee composed of three (3) or more persons appointed by the Board …. Any such exterior addition to or change or alteration made without application having first been made and approval obtained as provided above, shall be deemed to be in violation of this covenant and may be required to be restored to the original condition at Owner's cost.

[Emphasis added.]

In summary, any homeowner who wishes to change the exterior of his private dwelling must submit plans for approval to the Montgomery Village Foundation (MVF) Architectural Committee.⁷²

The solar collectors Piscopo wished to install were roughly nine by three feet each and consisted of loops of pipes with an arched acrylic cover. The estimated cost of the system was approximately $1,200.

When Piscopo first made his presentation to the Committee, he submitted color brochures about the solar collectors and a pencil drawing of how they would look on his rooftop. He also held a short presentation stressing the benefits of solar energy.

However, in August 1977 the Committee rejected Piscopo's application. It suggested in its letter that he "look to the possibility of placing solar collectors in another location such as a rear yard fence or a similar location in the back of the house."

Piscopo appealed to the MVF Board of Appeals, offering to locate the collectors further up on his roof. It stated in its August letter of denial:

Neither [the MVE Executive Committee nor the Architectural Control Committee] objects to solar collectors but does find that your plan for locating them on the front roof of your house is not aesthetically pleasing. Perhaps a different location is possible or a change in solar collector design will eventually make them less objectionable. If you find a different plan will work for you, please submit at that time.

[11 ELR 50038]

Piscopo offered to modify the system by putting in flat panels and changing the angle of the collector panels from 25 degrees to a flattened position against the roof, though this would decrease its operating efficiency. He was also willing to put painted frames around the collector panels and outside plumbing. Piscopo was not able to mount the collectors on the ground since the sunlight was obstructed by treeshade. The roof location of the collectors was thus not negotiable.

Shortly before he was to appeal to the full board of directors of the MVF, Piscopo received word that he was eligible for a $400 grant under the Maryland Residential Solar Hot Water Initiative Program sponsored by the U.S. Department of Housing and Urban Development. Grant conditions were that (1) it apply only to domestic hot water systems and (2) applicants make use of it within one year. If Piscopo received approval from the Committee, he would be eligible for the program and could reduce his total costs to approximately $800. He made this one of his arguments on his final appeal.

Despite this, the board denied Piscopo his application in May 1978. The vote was 4 to 3 against the installation, upholding the two previous denials on the same aesthetic grounds.

The MVF stated it was not anti-solar but had a duty to enforce strictly the subdivision's restrictive covenants to safeguard property values. Piscopo argued that a solar energy system would continue to increase the value of his home and the others in the years to come as exhaustible energy resources became more scarce.

After the appeals within the MVF were exhausted Piscopo tried to obtain a legislative remedy. He worked with Maryland Assembly Delegate Toth to pass a bill modeled after California's Solar Rights Act of 1978.⁷³ The proposed legislation provided that restrictive covenants must yield where they unreasonably restrict or prohibit solar installations. In the 1979 session the bill passed the House but was killed in the Senate Judiciary Committee. It was reintroduced in the 1980 session and was again almost killed; in order to save it, the retroactivity clause was dropped. The bill, as adopted and amended in 1980,⁷⁴ applies only to covenants that become effective after July 1, 1980, and thus did not invalidate the MVF covenant.

While the bill was pending in the legislature Piscopo wrote and presented some guidelines to the MVF Board members for the installation of solar collectors. The foundation adopted an abridged version of the guidelines in August 1979,⁷⁵ and granted approval of Piscopo's solar design in the fall of 1980.

The Bradley Case

Mr. and Mrs. William Bradley owned a home in the Broadmoor Northridge Association of Anaheim Hills, California. Their neighborhood consisted of wood and stucco type homes valued in the range of $120,000 to $200,000. Using solar energy to heat swimming pools was typical in the area and the Bradleys wanted to install for this purpose a system consisting of eight black panels each measuring four feet by eight feet. The panels would lie flat against the south sloping roof of their garage, covering 75 percent of the slope.

All homeowners in the Association are bound by certain covenants, conditions, and restrictions (CC&Rs). These CC&Rs provide that the architectural committee must approve plans of any project prior to construction. According to the architectural standards on file with the Association:

E. Exposed Equipment

1. Air conditioning equipment, water softeners, and other such equipment exposed to public view shall require approval from the Architectural Committee.

H. Conditions Not Defined

Any condition or material not defined within this guideline shall become a matter of judgment on the part of the Architectural Committee …. In the event of conflict between these standards and the CC&Rs, the CC&Rs will prevail.

Plan Approval Procedure

… Approval of any project by the Architectural Committee does not waive the necessity of obtaining the required city and county permits. Obtaining a city or county permit does not waive the need for Committee approval.

[Emphasis added.]

Thus, anyone planning certain construction in the neighborhood must satisfy the requirements of the architectural committee and must comply with any city or county ordinances or permit requirements.

The Bradleys stated that because the CC&Rs said nothing explicitly about solar collectors, they believed the collectors did not come within their purview but that when they hired a solar company to install the collectors they put it on notice that they might be bound by certain CC&Rs. In the lawsuit that developed, the Bradleys alleged that in the course of the work, the contractor failed to apply for any safety or building permits and made only a cursory search for any other legal obstacles.

The collectors were installed in December 1976. The estimated savings on the Bradleys' utilities bill came to $ 45 to $ 65 per month.

After the collectors were installed, the Bradleys discovered that they lived in a "scenic corridor overlay zone." According to Anaheim City Code subsection 18.59.022:

The Scenic Corridor site development standards are intended to provide for the continued orderly development of the City's scenic area by encouraging a high quality of development in keeping with the natural amenities of these areas and preserving their unique scenic resources as an asset to the community …. Roof mounted equipment including exterior mounted and ground mounted radio and television antennas shall not be permitted.

[11 ELR 50039]

[Emphasis added.] The Bradleys took the position that solar collectors were not included in this description.

In the months following installation, the Bradleys received complaints from neighbors who felt that thecollectors were an eyesore and even received anonymous phone threats to take the collectors down. In May 1977 the Bradleys were notified by the Association that they were in violation of the CC&Rs since they had never obtained project approval from the architectural committee. The city also inspected the collectors at this time.

In June the Bradleys were given 15 days' notice by the city to remove the solar collectors or apply for a conditional use permit at a cost of $125. A hearing was scheduled with the Anaheim Municipal Planning Commission (AMPC).

At the hearing a branch of AMPC, the Hill and Canyon Municipal Advisory Committee, testified in opposition to the collectors, arguing that the Scenic Corridor Ordinance be given strict enforcement and expressing its concern that the aesthetic impact of the collectors would lower property values. The result of the hearing was a postponement of the decision so guidelines for solar rooftop installation could be drafted.

At the second hearing the Bradleys stressed the economic and environmental benefits of solar energy. They also presented 23 petitions and letters of support for the collectors; only five homeowners expressed opposition. However, the AMPC denied them the conditional use permit on the following grounds:

1. the collector was in clear violation of the scenic ordinance;

2. the system was not designed so as to be visually and architecturally compatible with the residence;

3. other systems were available that would be compatible with the ordinance;

4. the solar use had been established illegally, without a permit or the approval of the Homeowner Association; to ratify it would set a bad precedent;

5. the solar use would adversely affect adjoining land uses and "growth and development" in the area; and

6. the solar use would be contrary to public health, safety, and welfare.

The Bradleys appealed the denial to the Anaheim City Planning Commission in August, offering to modify their design to comply with the ordinance and to conceal the panels from adjoining properties.

The City Council agreed to the modifications and voted to grant the permit. After seeing the planned modifications the Homeowners Association agreed to drop its opposition as well.

The modifications included moving the eight panels from the garage to the house roof and mounting them flat so they would not be visible from the street or adjoining properties. The contractor made these modifications for the Bradleys without charge.

In the course of the conflict Mrs. Bradley contacted the local press and television news stations to publicize their problem. She also contacted such sources as the Energy Resources Conservation and Development Commission in Sacramento, Governor Brown's office, her U.S. Congressman, and the local delegate to the state legislature. Of these, only the Commission and the Governor's office responded with support. Wilson Clark, Governor Brown's Assistant on Energy Matters, urged the City Council to approve the Bradley's permit in order to set a precedent for further solar use and consequently develop the energy future of the state.⁷⁶

Shortly after the Bradley case, the City of Anaheim amended its Code to provide solar permits at a cost of $200 for any future qualified applicants.

The Bradleys spent $1,800 on the solar collectors, $125 on the conditional use permit, and $62.50 on the appeals fee.

The Gurtler Case

The Gurtlers purchased a lot in the Country Club Heights subdivision, a neighborhood of Mesa, Arizona where homes range in excess of $200,000, and retained an architect to design a house with solar features. To accommodate the Gurtlers' desire for a system that would provide hot water, space heating, and space cooling, the plan called for 40 flat plate collectors to be built into the roof, covering most of it. Each panel was to be approximately 20 square feet of non-glare glass. Redwood or cedar would be used to separate the panels.

In September 1977, the Gurtlers were notified by the subdivision's review board that before they proceeded further on their designs for the house, they should consult with the board. The board is given the power of prior approval of house designs by the following Country Club Heights restrictive covenant:

No structure of any kind, the plans, elevations, and specifications of which have not received the written approval of the board and which do not comply fully with such approved plans and specifications, shall be erected, constructed, placed or maintained upon any lot.

Another covenant prohibits obstructing the view:

The view from any lot in any direction shall not be unreasonably obstructed by the construction of any other dwelling, garage, building, or structure of any type and the board representing all of the lot owners in Country Club Heights shall make the determination before granting approval of any plans, location of structures, or fence designs.

Other covenants provide that the board shall consist of five members and that plan approvals must receive a majority vote. The covenants declare that the board shall be elected by popular vote of a majority of the homeowners.

At the time the Gurtlers' solar plans were being reviewed, the board consisted of only two members, both of whom lived across the street from the Gurtlers and whose views would be directly affected by the construction of the Gurtler house. In July 1978, several months after the Gurtlers had purchased their lot, the two board members appointed three more to fill the vacancies on the board. No vote was taken by any of the members of the subdivision an required by the by-laws.

Gurtler submitted his architectural plans to the newly constituted board, including the architect's drawing of the house with the solar panels. The board met and unanimously rejected the proposed plans. Objections were made specifically to the proposed solar roof panels and centered on the aesthetic impact of the collectors. After [11 ELR 50040] several meetings, the Gurtlers and the board came to an agreement in October 1978: the maximum height of the house was to be 17 feet from street level and the solar roof panels were to be omitted from the design. Approval of the final architectural plans was given in February 1979.

In March 1979, Gurtler discovered that the agreed-upon elevation would place his house so low as to deprive him of the view on the house's lower level and that the house would be below the drainage level, allowing water from other lots to flow into it. He therefore petitioned to raise the foundation elevation by 4 1/2 feet. The board voted favorably for the higher elevation, 3 to 2. Several days later a board member changed his vote to "no," swinging the board position to disapproval of the plans. Within the next few days, the two neighboring board members brought suit as individuals against the Gurtlers, seeking to enjoin them from building the house.⁷⁷

In their complaint and application for preliminary injunction, the plaintiffs argued that the Gurtlers' proposed change in elevation would be an unreasonable obstruction to the view, which would affect the enjoyment and the resale value of the plaintiffs' homes. They claimed they would suffer irreparable damage if the defendants were allowed to construct their house, and requested that if the defendants intended to construct solar panels on their lot, that those intentions be part of the plans and specifications for review board construction approval.

The Gurtlers counterclaimed that the board's actions were unreasonable and arbitrary and claimed damages for not being able to build their home. One damage claim included architectural fees and costs of dealy engendered by the board's actions.

After a non-jury trial, the court found that the review board had the authority to act in this situation and ruled that its disapproval of the house design was proper and enforceable. It concluded that the plaintiffs were entitled to injunctive relief and legal costs, and ruled that the defendants were not entitled to their counterclaim for damages.

Following the trial, the Gurtlers hired a new attorney who filed a motion for judgment N.O.V. Following are the principal arguments raised:

1. the view covenant relied upon by plaintiffs is unreasonable, arbitrary, and capricious and has been abandoned;

2. the approval, once formally granted to a fully-titled owner, is not ordinarily revocable by a review board;

3. the review board was not legally and formally constituted; and

4. the facts do not support an equitable remedy since the plaintiffs, by their conduct and conflict of interest, do not possess the requisite "clean hands."

The court denied the defendants' motion and entered judgment for the plaintiffs, enjoining the defendants from building their home in a way that would deviate from the October 1978 (lower elevation) plans unless they were approved by the review board. The court specifically enjoined the defendants from installing solar panels without first presenting plans and specifications for approval by the review board. The court affirmed its verdict awarding court costs to plaintiffs and denying defendants' counterclaim for damages.⁷⁸

After the judgment was entered, Gurtler laid the foundation according to the March 1979 (higher elevation) plans. The board approved the higher elevation after more structural changes were made, including altering the roof line to allow some view for the plaintiffs. The height at the highest part of the house was to be 21 1/2 feet above street level; other parts of the roof were to be 15 feet. The Gurtlers had to change the layout of their house to accommodate the changed roof line.

The Gurtlers have built a solar energy system (not yet operable) that the board has approved. The panels are placed on a special structure in the backyard. The new design will reduce the system's efficiency and has significantly increased construction expenses.

The Gurtlers appealed their case on the issue of damages.⁷⁹ They also alleged that the deed restrictions, as applied to solar installations, are contrary to public policy.⁸⁰ Plaintiffs' motion to dismiss the appeal was denied and the case is scheduled for oral argument.⁸¹

William S. Stanley

William S. Stanley of Reston, Virginia lives in a traditional, colonial-style townhouse community; homes range in his Deepwood subdivision from $70,000 to $80,000. In June 1979, Stanley began construction on the south-facing rear of the house of a solar collector/conservatory greenhouse, a glass lean-to structure which would house a black-body pool of water. The pool was to serve two functions: first, as a solar collector to heat the greenhouse and, second, to raise fish for domestic consumption. The total enclosed area was to be roughly six feet by 11 feet. Opposition from neighbors arose while construction was underway. Stanley responded by filing a Request For Review Form. The Deepwood Environmental Planning Committee issued a written rejection a few days later. One reason given was that under the Deepwood Home-owners Association Handbook § 5A, "All sheds are acceptable provided that they are within a totally enclosed fenced yard area and cannot be seen from outside the individual's property."

Stanley's greenhouse would be slightly visible since it was to be one foot higher than the regulation fence height. The Committee also noted that Stanley had failed to apply for a building permit from Fairfax County as is required for any structure larger than 100 feet. Another reason for the rejection was that construction of the greenhouse had commenced before the Committee could review and approve it, contrary to the "prior approval" clause in the Association's covenants.

Stanley appealed the decision to the president of the [11 ELR 50041] Association. He argued that his collector was not a shed and stated that he had applied for a Fairfax County solar permit. He also argued that the county's no-fee policy for solar permits indicated its support of solar development. Nonetheless, the president affirmed the Committee's rejection. Further, the Association's board told Stanley it was filing a motion in county court for a temporary restraining order against the building of the structure.

A meeting was held between Stanley and the Association; the latter agreed to hold off any legal action until Stanley had time to prepare and submit plans of his greenhouse. At a second meeting Stanley and the Association agreed to the following compromises: (1) an extension to the fence would be built so that the view of the greenhouse would be blocked; and (2) more plant material would be grown in order to further screen the collector from view.

Stanley stated to the authors that he considered contacting the media about his problem but decided to keep a low profile of his case in order to facilitate negotiations and peaceful settlement. He did not feel that the threat of a lawsuit wouldfacilitate compromise. He believed instead that a positive, firm, nonantagonistic approach was the key to the successful settlement of the dispute.

The president of the Association noted that the Association wanted to enforce the covenants legally as an example to other residents but compromised in order to keep relations among the neighbors as friendly as possible.

Donald Bates

In 1975, Donald Bates bought a lot in the Fox Meadow Farms subdivision of the Harford County-Baltimore area of Maryland. The nine-home subdivision consists of various architectural styles such as Mediterranean-brick, ranch-style, and colonial homes which range in value from $80,000 to $120,000.

When Bates built his house, he designed the building, including wiring and plumbing, so as to permit later installation of solar collectors. He arranged the layout of his house so that the garage roof not only faced south but faced the windowless side of his next-door neighbor's house. Visibility was not expected to be a problem since trees would shield the collectors from street view for most of the year.

In 1979, Bates became interested in installing a solar hot water heater, consisting of five copper plate collectors, a 120-gallon storage tank, and a control panel, to supply the hot water needs of himself, his wife, and three young children. The collectors were expected to save $380 to $420 per year in household oil costs.

Bates filed an application and was awarded a $400 grant from the Maryland Hot Water Initiative Program in July 1979. In September, he sought approval for his collector as is required by the following Fox Meadows restrictive covenant:

No building, garage, barn, fence, wall, regrading, or other structure or improvement shall be commenced, erected or maintained, nor shall any addition to, change, or alteration therein be made in structure, color, or contour on any lot, nor shall any work be commenced or performed … which may result in a change in the exterior appearance of a structure or property, until the plans and specifications showing the nature, kind, shape, dimensions, appearance, material, floor plans and details, driveway plans and location, sewerage and water plans, proposed topographical changes … together with the approximate cost of said improvements and alterations, have been submitted to and approved in writing by the Company, or its assigns. The Company shall consider applications for approval of plans, specifications, etc. upon the basis of conformity with this Declaration and shall be guided by the extent to which such proposal will insure conformity and harmony in exterior design and appearance, the quality of workmanship, nature of materials, harmony of external design with existing structures, choice of color … the effect of such proposed change or work upon the use, enjoyment, or value of other neighboring properties, the suitability of the proposed improvements and alterations with its surroundings and the effect of the buildings or other planned structure or improvements on the outlook from the adjacent or neighboring properties. The Company shall have the right to refuse to approve any such plans or specifications which are not suitable or desirable in its opinion, for aesthetic or other considerations. Written requests for approval, accompanied by the foregoing specifications, shall be submitted to the Company ….

[Emphasis added.]

The person solely in charge of aesthetic architectural control for Fox Meadow Farms was the developer. He sent a letter of denial to Bates in September 1979, stating that:

[t]he location and appearance of the solar panels is unacceptable as they will adversely impact the appearance of your home from the road. Furthermore, they are incompatible with the color and style of your home. We would suggest that you explore other alternatives where the solar panels can be installed where they will not be visible from the road in front of your home. Perhaps they could be installed on the rear of your home.

Bates argued that installing the collectors in the back-yard would make them more visible, vulnerable to breakage, and harder to maintain. He proceeded to get written approval of the roof design from all his neighbors. The developer was unmoved by the neighbors' support, however.

In January of 1980, the developer circulated a policy statement on solar energy systems to all residents of Fox Meadow Farms. It provided that:

1. Solar panels will not be permitted on any home at a location that affects the appearance of the home from the streets in the vicinity of the home and especially from the front.

2. Solar panels will not be permitted on the front roof of any home.

The policy further provided that in limited instances, solar panels may be permitted on the rear roofs after considering the appearance and location of the solar panels and the design and visibility of the surrounding area and specified that "a house on a corner lot where the entire roof area of the house is visible from both roads would probably not be permitted to have solar panels even on the back roof." Since the developer is the sole architectural control for the Bates' subdivision, there is no route for appeal.⁸²

Bates stated to the authors his belief that he made a [11 ELR 50042] mistake by not declaring his intention to install solar collectors when he originally built the house. He stated that at the time he had not thought the panels would present a problem. At the time of the interview, he was considering litigation but had not acted since the $5,000 to $10,000 estimated expense of litigation could "buy a lot of oil."

Appendix: Sample Covenants Quoted in Section I.

1. 7 AM. JUR. LEGAL FORMS 2d, ch. 77, "Covenants, Conditions, and Restrictions," 27 et seq.

2. FHA Land Planning Bulletin No. 3 — Protective Covenants Data Sheet 40 (Rev. Apr. 1959).

3. Genesee Land Company, "Declaration of Covenants, Conditions and Restrictions," Jefferson Cty. CO (Mar. 10, 1975).

4. Peacock Station Declaration of Protective Covenants and Restrictions, Fairfax Cty. VA.

5. Perl-Mack Companies, "Protective Covenants on … Property Situate in the City & County of Denver, and State of Colorado.

6. U.S. Department of Housing and Urban Development, Federal Housing Administration, and Veterans Administration, FHA Form 1400, VA Form 26-8200 (Rev. Oct. 1973).

7. Vista del Colinas Subdivision, "Declaration of Restrictions," Riverside Cty. CA.

1. For example, the Architectural Committee for Columbia, Maryland has established guidelines for installing solar collectors that are "visually satisfactory." The guidelines also outline the basis for Committee review and approval of owner design. The City of Davis, California has also established architectural controls for solar design. This was done through municipal legislation rather than the private aesthetic control mechanism used in Columbia.

2. M. Jaffe & D. Erley, Residential Solar Design Review: A Manual on Community Architectural Controls and Solar Energy Use, American Planning Ass'n, Chicago (July 1980), hereinafter referred to as APA Manual. Copies can be obtained by writing to U.S. Department of Housing and Urban Development (HUD), 451 7th St. SW, Washington DC 20014.

3. Steve Hastie, Special Letters Writer, National Solar Heating and Cooling Information Center, estimates the cost of installing an active space and water solar heating system in a 1500 sq. ft. home (two-to-three bedrooms) to range from $8,000 to $15,000. Since solar energy can rarely provide 100 percent of a household's space and water heating needs (30-70 percent is the usual range, depending on latitude, weather, etc.), a nonsolar backup system is usually necessary; this adds at least another $1,200 to the cost. The major share of solar costs is attributable to space heating. Mr. Hastie estimates the installation cost of a solar water heating system to range from $1,500 to $4,000 (Generally, costs increase as one moves north because more collector space, double-glazing, etc., is needed.) Solar costs are much lower if they are built initially into a home. Mr. Hastie estimates that a passive solar space heating and cooling design adds approximately $5,000 to the construction costs of a new home. This information was obtained in a telephone interview with Mr. Hastie, May 15, 1981.

4. M. Jaffe & D. Erley, Solar Design Review: A Manual on Architectural Control and Solar Energy Use (preliminary draft, submitted to HUD in August 1979) at 32.

5. Miller, Legal Ostacles to Decentralized Solar Energy Technology: Part II, 1 SOLAR L. REP. 761, 762 (Nov./Dec. 1979).

6. Interview with David Engel, Director, Market Development, Residential Solar Demonstration Program, U.S. Department of Housing and Urban Development (Jan. 14, 1980).

7. See U.S. Department of Housing and Urban Development, Federal Housing Administration and Veterans Administration, Suggested Legal Documents for Planned-Unit Developments, FHA Form 1400, VA Form 26-8200 (Rev. Oct. 1973); HOUSING AND HOME FINANCING AGENCY, SUGGESTED LAND SUBDIVISION REGULATIONS 56-62 (1962); Consigny & Zile, Part 1: Use of Restrictive Covenants in a Rapidly Urbanizing Area, 1958 WIS. L. REV. 612, 623-24.

8. Model Contract for Disposition of Land for Private Redevelopment in C. HAAR, LAND-USE PLANNING 559-72 (1959).

9. Consigny & Zile, supra note 7, at 616.

10. Id. at 624.

11. See G. HAYES, SOLAR ACCESS LAW 5-6, Ballinger Publishing Co. (Cambridge, 1979).

12. An association that owned no parcels in the subdivision could be denied standing on the ground that it possesses no dominant tenement. Like the requirements that there be privity of estate and that the covenant impose a negative rather than positive obligation, this is an ancient and increasingly technical prerequisite for bringing an action to enforce a covenant. In recent years it has not been as strictly required by the courts, although it still retains some legal vitality. See N. WILLIAMS, AMERICAN LAND PLANNING LAW, Vol. 5, 244-250, Callaghan & Company (Chicago, 1975).

13. The solar guidelines of three communities are reproduced in Appendix II, APA Manual, supra note 2, at 75-80. Several suggestions for drafting such covenants appear in the text following note 22, infra.

14. "Prior approval" clauses are typical in subdivision covenants; several are found in the covenants cited in the Appendix. Also common are covenants providing that the lots are to be used "for residential purposes only." See, e.g., Peacock Station Covenants Nos. 3 and 5 (full citation in Appendix). The latter type of covenant, or a similar one that prohibits using the property for business purposes, could pose a problem for a homeowner who sells back to the utility surplus electricity generated by his photovoltaic system. However, the Public Utility Regulatory Policies Act of 1978, as amended (Pub. L. 95-617, 16 U.S.C. § 796 et seq.), may all but eliminate this problem since it exempts "qualifying small power production facilities" (30 Mw or less for photovoltaic systems) from most federal and state laws regulating rates, Financing, and organizations of electric utilities (§ 824a-3(b)). The exemption, and the Act's provision prohibiting such small producers from selling the surplus electricity for any purpose other than resale (§ 824a-3(a)) (which in effect prohibits them from selling to anyone other than a utility), lend credence to the position that owners of residential photovoltaic systems who sell back electricity to the utility are not using their property for "business" or "other than residential" purposes.

15. It is conceivable that a review board or court may construe words like "exterior" and "facade" to apply to storage systems located behind heat-collecting windows, such as drums or tall cylinders filled with water and eutetic salts encased in rows of plastic sausages.

16. Consigny & Zile, supra note 7, at 631.

17. See, e.g., the Bradley and Stanley case summaries in Section IV of this article.

18. Supra note 2.

19. Hayes, supra note 11, at 16.

20. Some equipment, such as a wind energy conversion system, cannot feasibly be screened.

21. The RESTATEMENT OF TORTS, 2d sets forth the following elements of liability for an "attractive nuisance":

§ 339. Artificial Conditions Highly Dangerous to Trespassing Children

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial conditionupon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

22. "Guidelines for Residential Solar Collectors in Columbia [Maryland]," as revised in August 1977, at 1, 10.

23. It was fear of this negative reaction that caused Stanley, a homeowner whose case study appears in Section IV of this article, to decide against contacting the media.

24. See, e.g., the Stanley case summary in Section IV of this article.

25. For examples of private aesthetic controls expressly regulating solar designs, see APA Manual, Appendix II. According to Gerald Mara and David Engel in their article, Institutional Barriers to Solar Energy: Early HUD Demonstration Experiences, 1 SOLAR L. REP. 1095, 1100 (1980), "there are [presently] no zoning ordinances which directly prohibit the installation of solard systems." As for building codes, the authors state "[o]f about 90 code jurisdictions recently surveyed … about 20% required some design change specifically relating to solar energy before issuing code approval. However, most of these design changes were minor." 1 SOLAR L. REP. at 1104.

26. Mara & Engel, supra note 25, at 1107-09. The usefulness of this data is qualified by two facts: (1) the data is based almost entirely on experience with active solar applications, not built in passive; and (2) in the cases studied, lenders' risks were somewhat reduced by the fact that the solar installations were subsidized by HUD, bringing the homes' costs into a more conventional price range.

27. Pictures are very important. According to George Hunter, owner of a solar installation business in Columbia, Maryland, illustrations and photographs greatly enhance a review board's receptivity to a proposed design. Conversely, Mr. Hunter says, when a board has no means of visualizing an unfamiliar proposal such as solar, its natural inclination is to deny it. Telephone interview with George Hunter, Energy Store, Columbia, Maryland (Mar. 28, 1980).

28. See, e.g., the Bradley case summarized in Section IV of this article.

29. Mara & Engel, supra note 25, at 1106-07.

30. Id. at 1105.

31. Supra note 28.

32. For example, a prohibition against street-facing solar collectors would seem prima facie unreasonable where air conditioners, TV antennae, and other utilities are permitted even though visible from the street, unless a nuisance (such as glare) can be shown.

33. This argument, although stronger if the prohibition is explicitly against solar designs, may also be made in the case of a restriction that applies to solar features only in its indirect effect, such as a provision on screening, roof-load limits, building material, or set-back requirements.

34. 7 AM. JUR. LEGAL FORMS 2d § 77:204, at 72, formalizes this process. For a $1 consideration, covenant beneficiaries agree to grant the homeowner, his heirs and assigns, the right to use the premises as if the covenant never existed.

35. As noted earlier, samples of guidelines that have been adopted in existing subdivisions appear in APA Manual, Appendix II, supra note 2. The following solar guideline language has been proposed by the Florida Solar Energy Center (FSEC) as an addition to the Federal Housing Administration's model protective covenants. FSEC advises that the model language be checked for conformity to state law before it is adopted.

C-19. Solar Energy Systems Installations. All installations shall be subject to the requirements of [the prior approval clause], in addition to the following special provisions.

(a) For roof-mounted solar energy systems for new construction, the solar energy collector shall be mounted as an integral part of the roof and flush with its surface. The quality of workmanship, materials, and harmony of design shall be in character with the overall design of the structure. As an alternative, the solar collector may be mounted on or about the roof surface, provided that quality of workmanship, materials, and harmony of design are in character with the overall design of the structure. All interconnecting piping for the solar energy installation shall be concealed inside the structure. As an alternative, interconnecting piping exterior to the structure shall be provided with a covering that is in character with the structure on which it is installed. Thermosiphon systems shall be prohibited unless they appear as an integral part of the roof or structure.

(b) For ground-mounted solar energy systems for new or retrofit construction, mounting of the solar energy collector array shall be in harmony with the structure being serviced, and shall employ the same quality of workmanship and materials. Interconnecting piping between the collector array structure and the structure being serviced shall be underground, or under a protective covering that matches the surroundings. Location of collector arrays shall observe setback lines as prescribed by other paragraphs of this covenant or existing zoning ordinances.

(c) For roof-mounted solar energy systems for retrofit construction, applications shall meet the requirements prescribed in Paragraph C-19(a).

(d) Solar energy installations shall comply with existing safety, installation, plumbing, and other codes deemed applicable by local building authorities.

(e) The collector shall be mounted in such a way as not to be an annoyance or nuisance to the neighborhood by causing glare due to reflected sunlight.

(f) No structure, planting, or other elements shall be placed on adjacent lots if such elements may interfere with exposure of an existing collector array to the sun.

FSEC, Solar Energy Commercialization at the State Level (1977).

Since aesthetic standards and architectural styles vary greatly from one community to the next, the APA and FSEC samples may be helpful only as a starting point.

36. Self-help energy groups, which are sprouting up around the country, assist homeowners and tenants (often low-income) in designing and building residential solar systems and can offer practical advice and experience in drafting guidelines.

37. The guidelines' "Definitions" section should include "solar energy system." To allow for technical innovations as the industry matures, the definition should be drafted as comprehensively as the review board will accept and should include, at a minimum, all active and passive direct solar systems.

38. Supra note 27.

39. See APA Manual 22-23, supra note 2, for excepts from the legislation adopted in California and Colorado.

40. California Solar Rights Act of 1978 (1978 Cal. Stats. ch. 1154). "Reasonable restrictions" are defined in § 3 of the Act, amending CAL. CIV. CODE § 714 and in § 6, amending CAL. GOV'T CODE § 65850.5.

41. COLO. REV. STAT. tit. 38, art. 30, § 168 (1979). This law applies only to restrictions that are based "solely on aesthetic considerations."

42. Art. I, § 10, cl. 1 of the U.S. Constitution states: "No State shall … pass any … Law impairing the Obligation of Contracts …."

43. In recent years, the courts have been less inclined to use the Contract Clause to invalidate legislation that alters or extinguishes even previously existing contract rights. J. Nowak, R. Rotunda & J. Young state in CONSTITUTIONAL LAW, West Publishing, St. Paul (1978) at 419:

During the Marshall years the [Supreme] Court used the [Contract Clause] to invalidate statutes that retrospectively impaired almost any contractual obligation of private parties. The Court never used the clause to void laws that prospectively modified contractual obligations …. Within the last 100 years, however, the Court rarely has relied on the clause as a reason to invalidate state legislation that retroactively affected contractual rights or obligations.

44. This principle, which was forcefully reaffirmed in Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934) (discussed in Section III, infra), has its roots in earlier decisions such as Manigault v. Springs, 199 U.S. 473, 480 (1905), where the Court stated that private parties to a contract "may not estop the legislature from enacting laws for the public good," and Stephenson v. Binford, 287 U.S. 251, 275 (1932), where the Court stated:

The principle that Congress may regulate private contracts whenever reasonably necessary to effect any of the great purposes for which the national government was created [citation omitted] applies to a state under like circumstances.

45. Text at notes 55-60, infra.

46. Kratovil, Building Restrictions — Contracts or Servitudes, 11 JOHN MARSHALL J. PRAC. PROC. 471 (1978); Lundberg,Restrictive Convenants and Land Use Control: Private Zoning, MONT. L. REV. 207 (1973). Professor Lundberg notes that courts have become increasingly reluctant to demand contract notions such as privity of estate as prerequisites to enforcing a covenant; usually a showing that the purchaser took with notice of (and in the case of the obligee, reliance on) the covenant will convince the court to exercise its equitable powers. In most cases, notice is established when the covenant is recorded; the covenant need not appear in the individual deed as long as an intent to create a general plan is shown.

47. RESTATEMENT OF PROPERTY; DIVISION V, SERVITUDES, PART III: "Promises Respecting the Use of Land," ch. 44, Topic D, Introductory Note, at 3187; Id., § 528, Comments (d) & (e), at 3187; GLENN & REDDEN, CASES AND MATERIALS ON EQUITY 13-14, Michie Publishing Co., Charlottesville (1946).

48. VAN HECKE, LEAVELL & NELSON, CASES AND MATERIALS ON EQUITABLE REMEDIES AND RESTITUTION 32, 33, West Publishing Co., St. Paul (2d ed. 1973), citing Aldrich v. Geahry, 367 Pa. 252, 80 A.2d 59 (1951) for the general rule.

49. A professional appraiser could ascertain the dollar amount and testify to it. Appraisers are experienced in considering factors such as vegetation and other screening costs in valuations of real estate and offer a natural starting point for ascertaining damages.

50. RESTATEMENT OF PROPERTY: SERVITUDES, supra note 47, states in § 528, Comment (f) at 3188, that:

… [a] judgment for damages merely shifts to the defendant a harm equal to that which the plaintiff has suffered. This is not true in the case of the issuance of an injunction. The harm to the defendant which may follow the granting of an injunction against him may be entirely disproportionate to the benefit resulting to the plaintiff. The action prohibited by an injunction may have distinct social advantages [e.g., conservation of fossil fuels, ecological benefits] even though it violates a promise. Hence, factors other than the question of inadequacy … of the remedy of damages must be considered in determining whether an injunction will issue.

[Emphasis added.]

51. Owens, Removing Old Restrictive Covenants — An Analysis and Recommendation, 15 KAN. L. REV. 582-83, 586-87 (1967).

52. See, e.g., the Kraye case summary in Section IV of this article.

53. The following language of the Supreme Court of Pennsylvania is instructive:

[… the court must be] satisfied that an actual controversy, or the ripening seeds of one, exists between parties, all of whom are sui juris and before the court, and that the declaration sought will be a practical help in ending the controversy. (Kariher's Petition, (No. 1), 284 Pa. 455, 471, 131 A. 265, 271 (1925).)

E. Borchard states in his treatise, DECLARATORY JUDGMENT, Banks-Baldwin Law Publishing Co., Cleveland (1934) at 41:

By "ripening seeds" the court [in Kariher's Petition] meant … that a dispute may be tried at its inception before it has accumulated the asperity, distemper, animosity, passion and violence of the full-blown "battle" which lies ahead …. The dispute may by declaration be determined before the status quo has been altered by physical acts of either party.

54. Borchard, supra note 53, at 23-41.

55. Congressional acts include: Solar Heating and Cooling Demonstration Act of 1974, 42 U.S.C. § 5501 et seq. (1974); Solar Energy Research, Development, and Demonstration Act, 42 U.S.C. § 5551 et seq. (1974); Federal Nonnuclear Energy Research and Development Act of 1974, 42 U.S.C. § 5901 et seq. (1974); Energy Conservation Standards for New Buildings Act of 1976, 42 U.S.C. § 6831 et seq. (1976); Department of Energy Organization Act, 42 U.S.C. § 7101 et seq. (1977); Energy and Water Development Appropriation Act of 1980, Pub. L. 96-69, 93 Stat. 437. Executive expressions of solar support include: "Energy Address to the Nation: Broadcast Remarks of President Carter," reprinted in ENERGY USERS REPORT REFERENCE FILE 21:0665 (Apr. 18, 1977); "President Cater's Energy Message White House Fact Sheet," reprinted in ENERGY USERS REPORT REFERENCE FILE 21:0706 (Apr. 20, 1977); "President Carter's Energy Message to Joint Session of Congress," reprinted in U.S. CODE CONG. & AD. NEWS 885, 891 (May 23, 1977); "President Carter's Energy Message to the Nation," reprinted in ENERGY USERS REPORT REFERENCE FILE 21:0756 (Nov. 8, 1977).

56. Supra note 42.

57. Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 435 (1934).

58. The following language of the Ohio Supreme Court is instructive:

In order that restrictive agreements in a deed may be declared void as against public policy, the same must violate some statute, or be contrary to judicial decision, or against public health, morals, safety or welfare, or in some form be injurious to the public goals. (Dixon v. Van Sweringer Co., 121 Ohio St. 56, 166 N.E. 887 (second paragraph of case syllabus), as quoted in Winfrey v. Marks, 14 Ohio App. 2d 127, 237 N.E.2d 324, 327 (1968).)

59. Supra note 57. The Court stated at 437:

The economic interests of the state may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts.

In holding that a Minnesota law extending the period of redemption from mortgage foreclosure sales did not constitutionally impair rights and obligations under existing mortgage agreements, the Court took notice of the economic conditions of the times (the law was passed during the worst of the Depression) and stated at 442:

… the question is no longer merely that of one party to a contract as against another, but of the use of reasonable means to safeguard the economic structure upon which the good of all depends.

60. See the Kraye case summary in Section IV of this article. Public policy was the keystone issue in this case and was extensively briefed and argued by both parties and by amicus curiae. One lesson Kraye teaches is that where legislative action is pending on solar development, the court may be reluctant to preempt legislative prerogatives in establishing public policy. If legislation such as California's Solar Rights Act is imminent in his jurisdiction, the homeowner may be well-advised to put his efforts into securing its passage before he initiates court action.

61. See text, "Action to enjoin enforcement of the covenant," supra, for arguments in support of this position.

62. The argument here would be that a remedy in equity is logically inconsistent with the characterization of a covenant as a contract interest.

63. The primacy of damages over the injunctive remedy is discussed cussed in greater detail in the text accompanying notes 47-51.

64. The defense to the impairment of contract argument and the defense to the plea for the injunctive remedy can both be strengthened, in an action to enjoin the solar system, by distinguishing between contract obligation and contract remedy. It is stated in 16 AM. JUR. 2d, § 453 at 806:

A judicial tribunal which is vested with full power to regulate its own practice may change the mere form of a remedy, provided no change is made in the liabilities of the parties to the contract involved [citing 1 Pet (U.S.) 604].

This principle has been reaffirmed by the U.S. Supreme Court in Blaisdell, discussed supra. There the Court cited a line of its earlier Contract Clause decisions, beginning with the following language of Chief Justice Marshall:

… Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct. (Sturges v. Crowninshield, 4 Wheat. 122, 200, as quoted in 290 U.S. 398, 430 (1934).)

The Court in Blaisdell continues with the following quotation from another early decision:

… it is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired …. Every case must be determined upon its own circumstances. (Von Hoffman v. City of Quincy, 4 Wall. 535, 553-554, as quoted in 290 U.S. 398, 430 (1934).)

The Court in Blaisdell found this principle to be particularly applicable where, as in the case before it, public policy considerations exist. It stated:

Not only is the constitutional provision qualified by the measure of control which the state retains over remedial processes [citing a string of decisions where a change in remedy was sustained], but the state also continues to possess authority to safeguard the vital interests of its people. (290 U.S. 398, 434 (1934).)

The RESTATEMENT OF CONTRACTS, 2d supports this principle by stating that there are situations where the contract is enforceable but an injunction would be an improper remedy because

… [t]he act or forbearance that would be compelled would adversely affect some aspect of the public interest or would otherwise be contrary to public policy. In such situations, equitable relief will be refused even though a judgment for damages will be granted. (RESTATEMENT OF CONTRACTS, 2D, Chapter VI, "Remedies," Comment to § 379.)

65. A.F. Siles states in Methods of Removing Restrictive Covenants in Illinois, 45 CHI.-KENT L. REV. 103-04 (1968), that one must:

… show that violations of the covenants have been previously acquiesced to by the parties entitled to the benefit. The factual situation necessary for acquiescence to occur is when violations have been allowed certain owners and now the parties seek to enforce the covenant against a new violator. The law is settled that even where a general plan is shown the restrictions under the plan will not be enforced where there has been acquiescence to previous violations [citations omitted] …. This defense can be compared with the doctrine of estoppel.

[Emphasis added.]

20 AM. JUR. 2d, § 273 states at 832:

The right to enforce a restrictive covenant may be lost by waiver or acquiescence [citations omitted]. This is so, for instance, where, by failing to act, one leads another to believe that he is not going to insist upon the covenant, and such other person is damaged thereby [citations omitted], or where landowners in a tract or subdivision fail to object to general and continuous violations of restrictions [citations omitted].

[Emphasis added.]

66. 20 AM. JUR. 2d, § 273 at 832, 834.

67. Id. at 830 states:

Abandonment depends upon conduct by the owners of the benefited land showing an intent to relinquish the benefit of the servitude, such as where the subdivider fails to carry out the general plan or where, after it is carried out, the subsequent lot owners substantially violate the restrictions with community acquiescence [citation omitted]. However, in order for community violation to constitute an abandonment, it must be so general as to frustrate the object of the scheme with the result that enforcement of the restriction involved would seriously impair the value of the burdened lot without substantially benefiting the adjoining lots [citations omitted].

[Emphasis added.]

68. RESTATEMENT OF PROPERTY: SERVITUDES, supra note 47, ch. 47, Topic C, "Equitable Defenses," at 3310.

69. Kraye v. Old Orchard Ass'n, No. C 209 453 (Cal. Super. Ct. L.A. City. Feb. 28, 1979).

70. Supra note 40. Section 3 of the Act provides, in relevant part:

… 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 which effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable.

71. Supra note 69. The Court made, inter alia, the following findings of fact:

9. That there exists in the State of California a need to conserve nonrenewable fossil fuels and to supplement existing energy sources.

10. That there exists a public policy in the State of California to promote and encourage the use of solar energy systems and to remove obstacle thereto.

and conclusions of law:

1. That the actions of the Architectural Committee of the Old Orchard Association 1 in refusing to grant permission to Plaintiffs to install solar collector plates on the roof of Plaintiff's residence is contrary to and violates the public policy of the State of California to encourage the use of solar energy systems.

2. That the CC&R's to the extent that they prohibit or intend to prohibit the roof top installation of solar collector plates are contrary to and in violation of the said public policy of the State of California.

3. That the CC&R's to the extent that they prohibit the installation of roof top solar collector plates are invalid and unenforceable as being contrary to the public policy of the State of California.

The full text of the judgment is published in 1 SOLAR L. REP. 503-06 (July/Aug. 1979).

72. The Committee is composed of six members: four are appointed by the developer and two by the subdivision.

73. Supra note 40.

74. MD. CODE ANN., Real Property Article, provides:

§ 2-119. Covenants restricting installation of solar collection panels.

Except as provided in this section

(1) a restrictive covenant regarding land use, which becomes effective after July 1, 1980, may not impose or act to impose unreasonable limitations on the installation of solar collection panels on the roof or exterior walls of improvements.

(2) [exempts covenants governing historic property].

The law took effect July 1, 1980.

75. See APA Manual, supra note 2, at 78-80, for the complete text of Piscopo's guidelines. The revised guidelines adopted by the MVF provide that approval of a design in one subdivision of the Montgomery Village development does not necessarily set a precedent for approving the same design in another of the subdivisions.

76. The California Solar Rights Act of 1978, supra note 40, was not yet in effect at the time of the proceedings.

77. Vernon L. Nicholas v. Richard W. Gurtler, No. C384239 (Ariz. Super. Ct. Maricopa Cty., summons filed Mar. 12, 1979).

78. Id. Order entered June 4, 1979 by Scott, J.

79. Nicholas v. Gurtler, ICA-CIV 528 (Ariz. App., 1979).

80. Arizona presently has no law voiding restrictive covenants that unreasonably prohibit or regulate solar installations. Such a bill was introduced in the state legislature but did not pass (S.B. 1190); it is expected to be reintroduced in the fall 1981 session.

81. Telephone interview with Dr. Richard Gurtler, June 11, 1981.

82. Several homes in another of the developer's Fox Meadow subdivisions have solar panels mounted on street-facing roofs. In that subdivision the architectural review board is composed of the developer and two residents.

11 ELR 50019 | Environmental Law Reporter | copyright © 1981 | All rights reserved