Chapter 10 - § 10.15 • CONSERVATION

• Jurisdiction: Colorado

§ 10.15 • CONSERVATION⁴⁹³

A traditional feature of homeowner association covenants in single-family subdivisions has been restrictions on the appearance of buildings and grounds. These kinds of restrictions have often been carried forward into the types of common interest communities governed by the CCIOA. They are generally thought to help maintain property values and may broadly call for "uniformity of appearance" or specifically limit or ban particular uses or practices. Thus, they may act explicitly or implicitly to restrict or prohibit solar panels on roofs, clothes lines, and even the color of window treatments. Several Colorado statutes, however, curtail the ability of associations to regulate energy or water conservation measures.

§ 10.15.1—Renewable Energy Generation Devices

By statute, an association is not permitted to effectively prohibit renewable energy generation devices, regardless of any provisions to the contrary in any declaration, bylaws, or association rules and regulations.⁴⁹⁴ The phrase "renewable energy generation devices" is defined in another statute — not a part of the CCIOA — to mean either a "solar energy device" or a "wind-electric generator."⁴⁹⁵ A "solar energy device" is, in turn, defined as "a solar collector or other device or a structural design feature of a structure which provides for the collection of sunlight and which comprises part of a system for the conversion of the sun's radiant energy into thermal, chemical, mechanical, or electrical energy."⁴⁹⁶ The non-CCIOA statute on renewable energy generation states broadly that 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 that effectively prohibits or restricts the installation or use of a renewable energy generation device is void and unenforceable."⁴⁹⁷ A mere physical connection between a solar energy device and a separate device that, in isolation, violates restrictive covenants is insufficient to bring that separate device within the statutory protection; however, if together the devices constitute an "integrated solar energy device," then the total unit is protected.⁴⁹⁸

The statutory proscription does not apply to aesthetic requirements that impose reasonable restrictions on dimensions, placement, or external appearance of a renewable energy generation device and that do not significantly increase the cost of the device or decrease its performance or efficiency.⁴⁹⁹ It also does not apply to bona fide safety requirements⁵⁰⁰ or reasonable restrictions on installation and use of wind-electric generators to reduce interference with the use and enjoyment by residents of nearby property caused by sound associated with the generators.⁵⁰¹ The statute does not confer on property owners the right to place a renewable energy generation device on property owned by someone else,⁵⁰² on leased property⁵⁰³ (except with the lessor's permission), on a limited or general common element of a common interest community, or on property that is collateral for a commercial loan (except with the secured party's permission).⁵⁰⁴

§ 10.15.2—Energy Efficiency

A CCIOA statute addresses "unreasonable" restrictions on "energy efficiency measures."⁵⁰⁵ Its language largely parallels that of the non-CCIOA statute on renewable energy generation. An "energy efficiency measure" is a device or structure that reduces the amount of energy derived from fossil fuels consumed by a residence or business located on the real property, but only includes five categories of devices or structures.⁵⁰⁶ They are:

1) Awnings, shutters, trellises, ramadas, or other shade structures marketed for the purpose of reducing energy consumption;
2) Garage or attic fans and any associated vents or louvers;
3) Evaporative coolers;
4) Energy-efficient outdoor lighting devices, including without limitation light fixtures containing coiled or straight fluorescent light bulbs, and any solar recharging panels, motion detectors, or other equipment connected to a lighting device; and
5) Retractable clotheslines.⁵⁰⁷

The basic proscription of the statute is that associations may not effectively prohibit installation or use of energy efficiency measures, notwithstanding any provision in a declaration, bylaws, or association rules and regulations to the contrary.⁵⁰⁸ This ban does not apply to bona fide safety requirements, consistent with applicable building codes or recognized safety standards, for the protection of persons and property,⁵⁰⁹ or to "reasonable" aesthetic provisions that govern dimensions, placement, or external appearance of energy efficiency measures.⁵¹⁰ In creating "reasonable aesthetic provisions," the association must consider the impact on the purchase price and operating costs of the energy efficiency measure and on performance of the energy efficiency measure, and the criteria contained in the governing documents of the community. The statute does not confer on any property owner the right to place an energy efficiency measure on property that is owned by someone else, leased (except with the lessor's permission), collateral for a commercial loan (except with the secured party's permission), or a limited or general common element in a common interest community.⁵¹¹

§ 10.15.3—Electric Vehicle Charging

In 2013, the Colorado General Assembly adopted legislation to prevent unreasonable restrictions on electric vehicle charging systems.⁵¹² The statute only applies to residential units.⁵¹³ The legislature said its primary purpose was to ensure that common interest communities provide residents with at least a meaningful opportunity to take advantage of the availability of plug-in electric vehicles.⁵¹⁴ It added that it encouraged common interest communities not only to allow electric vehicle charging stations, but also to apply for grants from the state's electric vehicle grant fund,⁵¹⁵ or to fund installation of charging stations on common property.⁵¹⁶ An "electric vehicle charging system" is a "device that is used to provide electricity to a plug-in electric vehicle or plug-in hybrid vehicle, is designed to ensure that a safe connection has been made between the electric grid and the vehicle, and is able to communicate with the vehicle's control system so that electricity flows at an appropriate voltage and current level."⁵¹⁷

The...