HOAs Going Green with a Bit of Kicking and Screaming

For this week’s Guest Post Friday here at Construction Law Musings, we welcome J. Roger Wood.  Roger is a partner with Carpenter Hazlewood Delgado & Wood, PLC.  The firm has offices in Phoenix, Tucson, Albuquerque and Santa Fe. Roger began practicing law twelve years ago and has been exclusively representing homeowners associations and condominiums for more than eight years.  He currently leads the firm’s litigation and covenant enforcement team.  Roger is also passionate about educating others in the HOA and condo industry and loves to help board members and managers understand and navigate important legal issues.  He regularly publishes his thoughts about community association law and you are welcome to join the conversation at his blog, On Association Law and Other Musings.  Roger can be followed on Twitter @CHDW_HOALaw.

I’ll begin with a big thank you to Chris for giving some space to those of us on the residential side of his always insightful Construction Law Musings.

Specifically, I’m interested in the end product.  My work as a lawyer for HOAs, condos and co-ops begins and thrives in providing a full slate of legal services to the completed neighborhood. Our work for community associations and condominiums happens as we roll up our sleeves to help boards of directors solve every day legal problems.

Because of this, my normal Association Musings are about watching and commenting on this village melting pot of diverse personalities and experiences.  I hope what I write highlights issues of owner concerns, gives practical information for board members and community managers, and, occasionally, offers a dig or two at the dumb things we lawyers sometimes do and say.  But after reading a recent article about the Commonwealth of Virginia’s new laws limiting a Virginia municipality’s obligation to provide street maintenance services (i.e. snow removal) to any cul-de-sac in any new residential development, I decided to steal a play from my host blogger’s playbook and now find myself musing about the greening of HOAs and Condos.

Don’t get me wrong, I’m no HOA green expert, and a few of my tweeps (@GeorgiaHOALaw and @ColoradoHOAGal) as well as other great lawyers know more than I do. At our law firm, we are experts on homeowners association and condominium association law.  We have clients in Arizona and New Mexico.  From the 10 unit condominium project to the 12,000 lot master-planned community, we deal with green issues when HOA boards and neighbors square-off on solar panels, clotheslines and compost piles, among others.  From our vantage point, everyone likes the idea of green until it means too much glare from the shiny panels on the neighbor’s house.  The clothesline isn’t a problem until you have to stare out your kitchen window at your neighbor’s drawers all day.  Most board and association members I meet want state legislators to make good environmental protection laws, so long as those protections don’t cause a stink (literally) in the neighbor’s back yard.

That’s when boards start calling us, the HOA lawyers.  Some boards fight the changes and can’t imagine why the law would require an approval of those “ugly” solar panels on the neighbor’s roof.  Other boards of directors vote to acquiesce and do attempt some reasonable aesthetic modification to placate green owners and complaining owners alike.  But in my recent pit stops on the road to HOA sustainability, I’ve come across a few observations that might help us all with getting to green.

1. The Green Temperature in Most Communities is Sub-Zero to Cold with a Few Hotspots Scattered Around the Country.

Whether you believe Al Gore or not, and no matter the cost savings or the benefits to our environment of “going green,” many board members have been reluctant to bend community aesthetic standards for one homeowner’s request for a green modification.  Oh the hours of board meetings we have attended to quibble over inches of visible solar collectors on the rear face of a neighbor’s rooftop. Boards are reluctant to swallow the perceived bitter pill of green initiatives as a whole and even more reluctant to make changes to their own governing documents to accommodate environmental trends. Most associations have not caught up to the green innovations.

There are a few exceptions to the rule and the awareness of the clash between green and most HOA CC&Rs and architectural guidelines is growing.  Just last month, the green versus HOA issue hit the big time.  The Colbert Report ran a short, snarky piece about an Oregon woman battling her HOA over a clothesline. Both hilarity and thoughtful discussion ensued.

A few HOAs are the exception, where grassroots movements have sprouted up and homeowners are working together to communicate with neighbors about greener HOA policies.  The website Sustainablecreekside.org is an example of one such effort where some Oregon neighbors have created an internet site to help communicate, organize and promote green initiates in their own community. However these few bright spots and spirited discussions continue to be overshadowed by the NIMBY crowd.

Enter the state legislatures.

2.       State Legislatures Are Trying to Force a Robust and Square Peg of Green Ideas into the Very Round Hole of Existing Law and HOA Documents.

I am aware of many state lawmakers passing (or in even more cases, attempting to pass) legislation to force green regulation on community associations.  Here in Arizona, there were several bills introduced in our legislature this year that would have allowed homeowners to install or operate various energy saving devices.  These proposed bills would have allowed owners to ignore contractual deed restrictions and install and operate an energy saving device free from any HOA scrutiny and regulation.  Our Arizona legislature proposed bills about clotheslines, rainwater harvesting systems, and awnings for shade.  Due to our state’s budget woes, the bills did not get out of the legislature and to the Governor’s desk.  However, several passionate legislators (and their lobbyists) have vowed to introduce similar green bills again next year.

One of the troubling issues about forcing green into some of the same existing communities with existing standards and restrictions is that often state legislatures show little consideration for contractual CC&Rs or for other existing state laws that regulate much about HOAs and condos.  In many situations, the new laws would make implementing green impracticable and in some cases legally impossible.

For example, this year the Arizona House of Representatives introduced HB 2778.  This bill would have amended Arizona’s condominium statutes and planned community statutes.  The bill would have allowed homeowners to ignore existing HOA/condo deed restrictions (CC&Rs) and install “rainwater harvesting systems that are intended to act as a water saving device.”  The bill went on to give associations some rights about aesthetics and placement, but the HOAs could not have prohibited these water saving devices.

It doesn’t sound too terrible or too complicated.  Water conservation is good, right?

But there is a serious square peg/round hole problem here.  The bill would have allowed an association to decide how the water collection device looks, but the bill would have done nothing to contemplate the legal realities of a condominium.  Many condominium owners only own the space bound by the four walls of the unit.  The rest of the property is usually defined as some type of a common element, co-owned in undivided equal interests by all of the owners in the project.  Often times, condominium restrictions require the condo association to maintain those common elements, which are to be paid for by the assessments of all.  The language of this bill would have contemplated a situation whereby one neighbor’s 100 gallon water tank could be stored on a second-story, common element balcony.  The homeowner may have the right to occupy and use the balcony, but who maintains the system when the association is obligated to maintain the balcony itself?  Are the balconies designed to withstand an additional 800 pounds of water weight?  Who pays premiums to insure the system?  Does legislating green really have to risk the health and safety of the downstairs unit owner?

3.       The Most Logical and Least Painful Greening Is Happening at the Development Stage.

Thoughtful legislation may be one way to go green, but perhaps those laws are best made to help developers who create and build the communities.  Starting from scratch with the development and creating of a green neighborhood avoids the square peg/round hole problem altogether.  Proposing and passing new laws and municipal building codes that impose greener practices on residential builders and developers may be the best way for HOAs and Condos to dive in to the green movement.  This is not only about construction standards, but it should be about requiring developers to draft documents that encourage green rather than restricting those kinds of modifications.

Sweeping and radical changes to the 30-year-old condominium project will likely only grow and cultivate litigation, and in the end, that’s only good for me, the HOA lawyer.  Influencing green development, construction and HOA formation will inevitably lead to marketing the kinds of homes consumers want to buy and the kind of sustainable communities were homebuyers want to live.

Using Virginia as an example, its legislature recently reacted to some studies by smart urban planning types who have written to warn of the ill-effects of cul-de-sacs on our communities and the health of our planet.  These experts posit that cul-de-sacs challenge public transit plans, result in more driving, discourage walking, are more expensive for municipalities to maintain and can even make us fatter. (Harvard Business Review Magazine, May 2010).  Virginia legislators made a new law to limit the construction of cul-de-sacs in new developments by allowing municipalities to suspend maintenance of cul-de-sac roadways.   The Commonwealth’s new law requires green from the get-go, saves money and fuel expenses at the local level and does not impose new restrictions on any already established cul-de-sac communities.  Green is already part of these communities before anyone buys the first lot.

Green residential construction projects are popping up all over the country.  The market for green housing and the attention on these kinds of projects is gaining popularity. Perhaps the economy has slowed interest, but a quick google search yields an abundance of information about who is building green residential projects and the location of some of the greenest neighborhoods around the country.

A recent Wall Street Journal article chronicles the story of one such green development.  Owners at Riverhouse in New York City were marketed and sold green condominium units.  The posh condo development is at the river’s edge on Manhattan’s lower west side and the developer/builder fetched a pretty penny for the promise of a sustainable life and the highest of green building standards.  The lure of green was so strong that when condo owners began to have problems with their units and the building as a whole, they filed a lawsuit alleging construct defects and alleging that the builder did not construct the community up to the proper and promised LEED standards.  If you want to know, “not green enough” comes with a $4.2 million claim.  If you build it (green), they will come (for green), and if you don’t build it green enough, it will cost you.

Riverhouse may be an extreme example, but incorporating green from the beginning may be the best and simplest way to turn the tide and change some minds on the residential side. Grass roots green efforts inside of communities builds hostility and make lawyers richer.  New legislation, without some very thoughtful statutory language and a complete understanding of the HOA/Condo structure (they never seem to ask us), will only frustrate association leaders and legislators alike.  Once again, the lawyers benefit.

The path to green of least resistance starts at the beginning, a raw plot of land and a dreamer with an idea.  Builders and developers have never had problems making that dream a reality and then marketing the next, best new home idea.  When builders market and sell house-proud and community from a row of well-staged model homes, why not sell sustainability right alongside all of upgraded appliances and marble countertops?  It’s not that I don’t relish a good compost pile fight, but the mud-slinging about green deserves a better starting point.

Both Roger and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

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