Condominium Unit Owner Challenges Board’s Decision to Deny Application for Rooftop Solar Panels Using Thirty-Nine-Year-Old Statute

Condominium Unit Owner Challenges Board’s Decision to Deny Application for Rooftop Solar Panels Using Thirty-Nine-Year-Old Statute

An act concerning solar panels – signed into law decades ago by Governor Michael Dukakis – has recently been employed by litigants in connection with both smaller and large-scale solar projects. One such plaintiff is a condominium unit owner who challenged a board’s denial of his request to place solar panels atop his townhome-style unit. The decision in that matter provides guidance for associations on how such requests – which will likely be increasing in the near future – should be handled by condominium boards.

The Land Court’s decision suggests that language in condominium documents that flat-out bans the installation of solar panels may not survive a legal challenge from a unit owner.

In Timothy J. Hunter, as Trustee of CrashCo Trust v. Peter Killeen, et al. (Land Court; Docket No. 23 MISC 000539 (RBF)) the Land Court found that provisions contained within a condominium’s governing documents did not violate a statutory provision that proscribes forbidding or unreasonably restricting the installation of solar panels. Judge Foster, however, left the door open for a determination as to whether the condominium board’s decision to deny the unit owner’s request to install solar panels was reasonable.

The case involved “An Act Promoting Solar Energy and Protecting Access to Sunlight for Solar Energy Systems,” which was enacted in 1985. The act was intended to protect and promote solar energy systems by inserting into various land use and real estate statutes provisions limiting their regulation or allowing for their support in municipal bylaws. As the Land Court noted, for several decades, there has been little litigation over these provisions and few, if any reported cases. In recent years, however, with the proliferation of solar energy systems, more challenges have been advanced and more decisions rendered on the meaning of these provisions.

Among the provisions added by the act was a new section of G.L. c. 184, which contains various provisions relating to real property. The new section, § 23C, was placed among the provisions concerning restrictions. Section 23C provides that “[a]ny provision in an instrument relative to the ownership or use of real property which purports to forbid or unreasonably restrict the installation of a solar energy system…or the building of structures that facilitate the collection of solar energy shall be void.” G.L. c. 184, § 23C. Like the other provisions inserted by the act, § 23C has had little occasion over the last 39 years to be interpreted, until now.

The lawsuit concerned the Woods at Wilbraham Condominium – a secluded community surrounded by tall trees, within eyeshot of Wilbraham Mountain. According to its website, “[t]he Woods at Wilbraham is a beautifully maintained, premium condominium development nestled within 90-acres of picturesque New England Countryside. The desirable location together with well-maintained condominium units and grounds reflect the pride residents and trustees take in the association.” The Condominium is comprised of 145 units, spread across 43 separate buildings.

Timothy Hunter and his wife, Christine, own one of the units at the Condominium. According to Mr. Hunter’s Complaint, “[t]he Earth’s climate is in crisis.” Apparently concerned about the “dire state of the climate,” Mr. Hunter requested an architectural variance to install solar panels on the roof of his unit. Days after submitting his request, Mr. Hunter purportedly heard from other residents of the Condominium that his request would be denied. Undeterred, Mr. Hunter made several attempts to speak with the Board and to inform them of the merits of his proposal. According to Mr. Hunter, the Board did not respond, did not meet with him, and did not act on Mr. Hunter's proposal for several months. Eventually, at a monthly meeting, the Board allowed opponents of Mr. Hunter’s request to speak at length, while allegedly imposing an arbitrary time limit on Mr. Hunter and anyone who spoke in support of his request. The Board unanimously denied Mr. Hunter's request.

Mr. Hunter filed a Complaint for Declaratory Judgment on October 30, 2023. The Condominium Trust filed a Motion to Dismiss, which was subsequently argued before Judge Foster in February of 2024.

Mr. Hunter contended that the Trust rejected his proposal for the installation of a solar energy system in violation of G.L. c. 184, § 23C. He sought a judgment declaring that the provisions of the Master Deed and Declaration of Trust that purport to restrict solar energy systems are void, and ordering the Trust to allow the installation and use of solar energy systems in the common areas of the Condominium. The Trust countered by arguing that Mr. Hunter lacked subject matter jurisdiction and that he failed to state a claim upon which relief could be granted.

The Trust argued that Mr. Hunter lacked standing to pursue a claim concerning condominium common areas – specifically the installation of solar panels atop the condominium’s common area roof. They relied upon the Supreme Judicial Court’s decision in Cigal v. Leader Dev. Corp., 408 Mass. 212 (1990), which held that the Condominium Statute “requires that the unit owners act by and through the condominium association, which represents all the unit owners.” They also relied upon the statute itself, G.L. c. 183A, § 10(b)(4), which provides that a condominium trust has the authority “[t]o conduct litigation and to be subject to suit as to any course of action involving the common areas…”. Based upon these supporting authorities, the Trust contended that Mr. Hunter could not seek a declaratory judgment from the Court to make structural changes to the common area roof of the Condominium.

The Land Court rejected the lack-of-standing argument, finding that Mr. Hunter’s harm is not purely derivative harm and is not harm solely against the condominium itself, but rather harm inflicted against him by the Trust. The Court noted that the Cigal decision concerned a suit by unit owners against the condominium association in an action to recover in tort for the actions of third parties, while Mr. Hunter’s claim was against the Trust directly for the Trust’s alleged wrong against him in not approving his proposed use of the common areas.

The Trust further contented that Mr. Hunter failed to identify any provision in the Condominium documents that violated G.L. c. 184, § 23 by forbidding or unreasonably restricting the installation or use of a solar energy system. In response, Mr. Hunter pointed to two specific provisions contained within the constituent documents of the Condominium to which he took exception:

Master Deed, § 9(b):

No balcony or patio enclosure other than as previously exists, skylight, chimney, enclosure, awning, screen, antenna, sign, banner, or other device and no exterior change, addition, structure, projection, decoration or other feature shall be erected or placed upon or attached to any building…unless the same shall have been approved by the Condominium Trustees in accordance with the provisions of the Condominium Trust and shall conform to the conditions set forth in said Condominium Trust.

Declaration of Trust, Art. 5.8.2:

If and when any Unit Owner shall propose to make an improvement to or affecting the Common Areas and Facilities of the Condominium at such Unit Owner’s own expense, and the Trustees determine in their reasonable discretion that such improvement would be consistent and compatible with the provisions and intent of the Master Deed, the Trustees, after consulting with the Design Review Committee hereof may, but shall not be obligated to, authorized such improvement to be made at the sole expense of the Unit Owner proposing the same, without the consent or approval of the other Unit Owners, as the Trustees in their reasonable discretion may deem to be necessary or desirable in the circumstances.

The Land Court concluded that these two provisions did not “unreasonably restrict the installation or use of a solar energy system” – instead finding that the provisions merely vested discretionary power in the Trust to determine whether the installation of a solar energy system is appropriate or necessary. As the only relief Mr. Hunter sought in his Complaint was a declaration that the Master Deed and Condominium Trust violate § 23C and are void, the Land Court found that the complaint did not state a claim upon which relief can be granted. The Court indicated that it would allow the Trust’s motion to dismiss on those grounds.

However, the Land Court also gave Mr. Hunter the opportunity to amend the Complaint – noting that Mr. Hunter could challenge the reasonableness of the actions of the Trust and their exercise of their discretionary function. The Court provided that Mr. Hunter could bring a claim that the Trustees did not exercise their discretion reasonably when they rejected his request to install a solar energy system.

Thereafter, Mr. Hunter – taking advantage of the opportunity afforded by the Land Court – filed an Amended Complaint for Declaratory Judgment and Injunctive Relief. On May 24, counsel for the respective parties participated in a virtual case management conference before Judge Foster. The parties informed the Court that they were discussing alternative dispute resolution. Indeed, the Joint Statement submitted by the parties in advance of their case management conference indicated that they had begun the process of proposing mediators and dates in the hopes of scheduling a mediation within the coming months. As of the date of this article, no further updates were available – although the Court has scheduled a status conference for November.

Notably, the Land Court’s decision referenced the pending Massachusetts legislation. House Bill 3685, An Act Ensuring Solar Energy Access. If passed, the House Bill would replace the current G.L. c. 184, § 23C with new language to clarify that no “homeowners’ association, condominium association, property owners association, community association, housing cooperative or any other nongovernmental entity with covenants, bylaws and administrative provisions with which a homeowner is required to comply…shall forbid or unreasonably restrict the installation of or use of a solar energy system.” The pending legislation would also clarify what constitutes an “unreasonable restriction” on the installation and use of solar energy. One such “unreasonable restriction” would be a restriction that “substantially curtail[s] or burden[s] solar access.”

The Land Court’s decision suggests that language in condominium documents that flat-out bans the installation of solar panels may not survive a legal challenge from a unit owner. While a trial court decision that does not constitute binding precedent, Judge Foster’s ruling provides that while provisions in the governing documents can place restrictions on the installation of solar panels, those restrictions – and the board’s implementation of same – must be reasonable. It is clear – particularly if pending House Bill 3685 is enacted – that solar panels are here to stay, and an effort by an association to completely prohibit them may not be viewed favorably by the Courts of the Commonwealth.

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David M. Rogers