From: Rosalie Rayburn, Albuquerque Journal, N.M.
Published October 21, 2004 12:00 AM

Solar-energy Supporters Want New Mexico to Play Role in Settling Clash

Oct. 21—RIO RANCHO, N.M. — A Rio Rancho couple's clash with their homeowners association over a solar water heater is prompting renewable energy supporters to call for the state to step in and curb restrictions that stymie investing in the alternative energy source.


Glenn and Debby Olsen last month yielded to the Stonehenge Estates homeowners association's order to remove the solar heater they had installed to heat the water for their backyard pool.


The association in a letter to the Olsens said the roof-mounted solar system had to go because it didn't comply with design guidelines for homes in the subdivision near a Rio Rancho golf course.


Tish Silva, community association manager for Stonehenge Estates, said the Olsens were told to remove the solar system after "multiple complaints" from neighbors.


As part of their home purchase agreement, the Olsens had agreed to a set of conditions designed to uphold a uniform appearance and standard of maintenance on the 343 lots on the subdivision, Silva said in a phone interview with the Journal.


The rules allow solar collectors in the subdivision under certain conditions and the Olsens appear to have followed the rules except for not first asking permission of the architectural review board, according to a letter from the Olsens' attorney, Margaret Foster, to the association.


Proponents of solar energy say that type of restrictive covenant is a barrier to the use of solar energy by individual homeowners at a time when natural gas costs are skyrocketing and Gov. Bill Richardson has launched initiatives to make New Mexico the "Saudi Arabia" of clean energy.


"We're exploring a possible legislative solution to this sort of thing," said Ben Luce, president of the New Mexico Solar Energy Association, who wrote to the chairman of the homeowners association committee that disapproved the Olsens' solar system.


"Our state government, including our governor, the Energy Minerals and Natural Resources Department, most New Mexico municipalities, and the majority of state residents are all presently very supportive of this technology," Luce said in his letter, which urged the homeowners association to drop its objection to the Olsens' solar collector.


A dozen states, including Arizona, California, Florida, Hawaii and Nevada, have laws that render void or prohibit any restrictions on the installation or use of solar systems to generate heat or electricity.


"I'm sure there is a way to do solar and respect neighborhood aesthetics," said Craig O'Hare, the governor's special assistant for renewable energy.


O'Hare heads a task force established by the governor to find ways to develop a commercial-scale solar energy project in New Mexico. Luce heads a similar task force that is looking at ways to encourage solar use by individual residents and businesses.


The Olsens said they chose a solar system because it offered a less expensive and unpolluting way to heat their 16,000-gallon pool than a gas or electric heater.


They hired Aquatic Pools of Albuquerque in August 2003 to install the system. The solar system consisted of black, rectangular panels laid flat on the red tile roof on one side of the house.


In April, the association wrote to the Olsens noting the collector had been installed. The letter asked them to submit a formal application for approval.


The Olsens complied. But a month later, Silva wrote back telling them the homeowners association's architectural review committee had disapproved the solar system because it did not comply with the Stonehenge Estates design rules. The letter instructed the Olsens to remove it within 30 days.


In the past 10 years, the association has received nearly 250 applications for home and yard modifications; about 15 have been denied, Silva said.


Silva said she could not confirm whether any of the applications were for solar collectors or heaters because the records did not indicate the type of modifications desired.


Stonehenge Estates' covenants were drawn up by the subdivision developers, Bill Hooton, D.E. Boyle and Michael Castillo of AMREP Southwest Inc., in 1994. They also cover such matters as house color, backyard sheds and sunroom additions. The subdivision is now managed by the Cauwels and Stuve company, Silva said.


The Olsens hired Foster, with the Albuquerque law firm Jontz, Dawe, Gulley & Crown PC, to help them with the problem.


Foster wrote the association saying that, after examining the guidelines and photographs, her opinion was that the system met the guidelines, which said that solar systems would be allowed if they created an "aesthetically pleasing appearance" and were "incorporated into the roof to look like skylights."


Foster's letter said the Olsens had contacted the association prior to installing the pool and solar heater and were told they only needed to submit plans for the pool fence. The letter said the Olsens wanted to work with the association to find a solution and asked the association to schedule a meeting.


Silva said the Olsens had applied to modify the wall around their yard but did not mention the solar system.


Foster's letter said the association never explained why the Olsens' solar system didn't comply with the rules.


A Sept. 15 letter from the association's law firm, Myers, Oliver & Price PC, told the Olsens they would face a lawsuit if they did not remove the solar heater. The association also said the Olsens owed the association about $500 for legal costs it had incurred over the issue.


The couple paid the full amount and removed the solar heater on Sept. 28.


"We believe in taking care of natural resources," said Glenn Olsen. "It's a shock to us that we are being stopped from doing this because we didn't get prior approval."


This type of issue typically arises in a neighborhood where the developer sells lots for others to build on and retains design review control while the subdivision is being filled, said Fred Zalcman, executive director of the Pace Law School Energy Project, a sustainable energy research and advocacy organization based in White Plains, N.Y.


Zalcman is co-author of a handbook on rooftop solar systems and private land-use restrictions produced for the U.S. Department of Energy.


"In many parts of the country, this planned community form of development is becoming the prevalent way of development. It can be a real barrier to solar in new community developments," Zalcman said.


But soaring energy costs have recently prompted some developers in New York and California to begin offering solar systems that heat water or generate electricity as an option, Zalcman said.


Even if New Mexico passes a law prohibiting solar bans, homeowners could still face battles. Homeowners associations in Arizona, California, Florida and Hawaii have sued, some successfully, to force homeowners to remove solar systems.


© 2004, Albuquerque Journal. Distributed by Knight Ridder/Tribune Business News.


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