LEGAL FRAMEWORK FOR GREEN BUILDING
By Cyril Vidergar / Photo by Carter Photographics

Colorado’s legal framework for incorporating renewable energy devices into building construction rests on three piers – two statutory schemes and one foundational appeals court decision. These three piers create a legally-friendly environment for increased use of renewable energy devices and building practices in Colorado.

Colorado Revised Statutes (CRS) §38-30-168 provides the thrust of state protection for “solar energy devices.” It limits the effect of restrictive covenants, i.e. HOA regulations, on such devices, when such are based on aesthetics alone. Only “reasonable restrictions… which do not significantly increase the price of the device” survive under the statute. The crucial definition of “solar energy devices” is found at CRS §38-32.5-100.3: “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.”

The Colorado Court of Appeals interpreted the above statutes in the context of a dispute in Governor’s Ranch v. Gunther, 705 P.2d 1011 (Colo.App 1985) where an HOA sought to enforce a prohibition on rooftop cooling and heating equipment to enjoin Mr. Gunther’s use of a rooftop evaporative cooler. A trial court previously ruled that the HOA covenants controlled, but relocation of the unit to the ground would be permitted, granting Gunther 60 days to do so. Gunther did not remove the cooler as ordered however, and added integrated solar collectors which happened to shield the offensive cooler from curb-front view. In applying the law above, the Court of Appeals found the connection between the collectors and the cooler created a protected integrated “solar energy device.” As such, the suspect cooler was held permissible despite the covenants, and could stay so long as the “system” remained in use. The case demonstrates that in certain instances the law may overrule private covenants impacting solar devices, even when a homeowner overtly ignores such regulations. The case also demonstrates how courts will interpret the legislature’s intent regarding restraints on solar energy devices, as the nature of our common law legal system requires that future courts consider this decision and the Court of Appeals analysis when faced with HOA solar collector regulation disputes.

The final pier is found in the Renewable Energy Incentives Act of 2007. Counties are expressly authorized under CRS §30-11-107.3 to offer tax incentives in the form of property and sales tax credits or rebates to residential and/or commercial property owners who install renewable energy fixtures. The statute defines “renewable energy fixture” more broadly than §38-32.5-100.3, embracing “any fixture, product, system, device, or interacting group of devices that produce electricity from renewable resources, including, but not limited to, photovoltaic systems, solar thermal systems, small wind systems, biomass systems, or geothermal systems.”

Also worthy of note is CRS §30-28-120 (1), which states that the addition of a solar energy device to any lawful building shall not necessarily be considered a structural alteration, i.e. not requiring a building permit or render a building non-conforming with local zoning due to inclusion of the solar device alone.

The three piers discussed above lay the groundwork for increased use of solar and renewable energy fixtures in all types of constructions. HOAs and local government can further these interests by adopting standards creating further incentives for owners, e.g., regulations that direct solar collector placement and rolling out the prescribed property tax rebates.