H. B. 2740
(By Delegates Manypenny, Doyle, Mahan,
Guthrie, Canterbury, Iaquinta, Barker, Hartman,
Brown and Hatfield)
[Introduced January 21, 2011; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §36-4-19, relating to making covenants that restrict the installation or use of solar energy systems unenforceable; and provides civil penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §36-4-19, to read as follows:
ARTICLE 4. COVENANTS.
§36-4-19. Solar energy covenants unenforceable; penalty.
(a) 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, and any
provision of a governing document that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable.
(b) This section does not apply to provisions that impose reasonable restrictions on solar energy systems. However, it is the
policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits.
(c)(1) A solar energy system shall meet applicable health and
safety standards and requirements imposed by state and local permitting authorities.
(2) A solar energy system for heating water shall be certified by the Solar Rating Certification Corporation (SRCC) or other nationally recognized certification agencies. SRCC is a nonprofit third party supported by the United States Department of Energy. The certification shall be for the entire solar energy system and
(3) A solar energy system for producing electricity shall also
meet all applicable safety and performance standards established by
the National Electrical Code, the Institute of Electrical and Electronics Engineers, and accredited testing laboratories such as
Underwriters Laboratories and, where applicable, rules of the Public Service Commission regarding safety and reliability.
(d) For the purposes of this section:
(1)(A) For solar domestic water heating systems or solar swimming pool heating systems that comply with state and federal law, "significantly" means an amount exceeding twenty percent of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding twenty percent, as originally specified and proposed.
(B) For photovoltaic systems that comply with state and federal law, "significantly" means an amount not to exceed $2,000 over the system cost as originally specified and proposed, or a decrease in system efficiency of an amount exceeding twenty percent as originally specified and proposed.
(2) "Solar energy system" means a system that uses solar devices, which are thermally isolated from living space or any other area where the energy is used, to provide for the collection, storage, or distribution of solar energy.
(e)(1) Whenever approval is required for the installation or use of a solar energy system, the application for approval shall be
processed and approved by the appropriate approving entity in the
same manner as an application for approval of an architectural modification to the property and may not be willfully avoided or
(2) For an approving entity that is a homeowners' association, and that is not a public entity, both of the following apply:
(A) The approval or denial of an application shall be in writing; and
(B) If an application is not denied in writing within sixty days from the date of receipt of the application, the application is deemed approved, unless that delay is the result of a reasonable request for additional information.
(f) Any entity, other than a public entity, that willfully violates this section is liable to the applicant or other party for actual damages occasioned thereby, and shall pay a civil penalty to the applicant or other party in an amount not to exceed $1,000.
(g) In any action to enforce compliance with this section, the
prevailing party shall be awarded reasonable attorney's fees.
(h)(1) A public entity that fails to comply with this section may not receive funds from a state-sponsored grant or loan program for solar energy. A public entity shall certify its compliance with the requirements of this section when applying for funds from a state-sponsored grant or loan program.
(2) A local public entity may not exempt residents in its jurisdiction from the requirements of this section.
(i) Notwithstanding other provisions of this section, any association may impose reasonable provisions that:
(1) Restrict the installation of solar energy systems installed in common areas to those systems approved by the association;
(2) Require the owner of a separate interest to obtain the approval of the association for the installation of a solar energy system in a separate interest owned by another;
(3) Provide for the maintenance, repair, or replacement of roofs or other building components; and
(4) Require installers of solar energy systems to indemnify or
reimburse the association or its members for loss or damage caused by the installation, maintenance, or use of the solar energy system.
NOTE: The purpose of this bill makes covenants that restrict the installation or use of solar energy systems unenforceable. The bill also addresses homeowners’ associations. The bill further provides guidelines and sets forth civil penalties.
This section is new; therefore, it has been completely underscored.