Another lawsuit shines light on solar panel issue in West County

Last June, when a Cole County Circuit Judge ruled in a favor of a couple that had sued the city of Clarkson Valley for refusing to allow them to install solar panels on their home, it seemed as if a new precedent had been set: State standards regulating residential solar systems had trumped a city’s right to restrict their installation.

As it turns out, that lawsuit settled nothing.

In January, a Wildwood couple, Brian Hauge and Susan Hanley, filed suit against the trustees of the homeowners association of their subdivision, the Highlands of Chesterfield, for denying their request to install solar panels on their home.

Steve Jeffery, the couple’s attorney, acknowledged that neighborhood associations have the right to include in their indentures provisions that impose specific design and construction standards on exterior improvements to a home. At issue, Jeffery said, is that the couple’s subdivision indentures did not address solar panels at all.

“In this particular subdivision, there was no specific provision, or even a general provision, dealing with solar panels,” said Jeffery.

Instead, Jeffery said the trustees rejected the couple’s application based on a “very loose, vague standard” of aesthetic considerations. Conversely, state laws that regulate the installation of solar panels do not impose any aesthetic requirements on residential solar panels. According to Jeffery, this puts the trustees’ actions in direct conflict with public policy and makes that provision in the indentures unenforceable.

State regulations do establish design, safety and operating standards for residential solar systems that have a solar rebate contract with an electric utility.

“We have a solar rebate contract with Ameren,” Hauge said in a press release. “Our system is designed to totally comply with all applicable design, safety and operating requirements.”

Jeffery said when you pit those very specific state regulations against the trustees’ power to deny or approve a solar installation based on a “vague, arbitrary” provision in the subdivision indentures, the question becomes, “Which one takes precedent?”

“That’s really what the legal question is,” he said.

Notably, this suit was filed against the couple’s homeowners association, not the city of Wildwood. Asked whether he thought future issues with residential solar panels would wind up on the desks of city attorneys or neighborhood trustees, Jeffery said, “Probably both. This is a very new and evolving area of the law.”

As it evolves, a number of West County municipalities are in a “wait-and-see” mode, particularly in regard to pending decisions related to the Clarkson Valley suit.

Since the judge ruled in favor of Jim and Frances Babb last summer, the Clarkson Valley couple went back to the courts and filed a “regulatory takings claim,” arguing that the city’s delay in issuing the permit for their solar installation cost the couple in energy savings and the ability to participate in Ameren’s solar rebate program. Jeffery said he expects that case to be ongoing for the next several months.

Aimee Nassif, planning and development services director for Chesterfield, said that city is in the process of drafting a solar panel ordinance but, like surrounding municipalities, “everyone’s waiting for (the) Clarkson Valley” case to be decided. She also noted that state laws regulating solar installations would limit how much a city could restrict solar installations and that neighborhood “indentures can be so much more restrictive” than municipal ordinances in terms of what they can enforce.

As West Newsmagazine reported in December, Town & Country also is waiting for the outcome of the Clarkson Valley case.

Meanwhile, the Wildwood solar panel case is set to go to court sometime this spring.