By Jack K. Bouquet, Esq.

A recent headline set the tone of the conflict between community associations and municipalities seeking alternative forms of energy for use by their residents. The headline read "Woodbury Homeowner Associations an Obstacle to City's Hopes for Alternative Energy: Associations Opposing Renewable-Energy Options Cite Aesthetics."

The issue arose when the city of Woodbury notified its residents that an ordinance was being studied that contained a provision overriding the associations' Declarations in the event that the Declaration contained a provision prohibiting solar energy installations. As reported in the article, several associations appeared at a planning commission meeting at which the ordinance was being considered. Objection was raised by the associations that the provision in the ordinance was a violation of the governing documents of the associations and would require legislative action not merely a city ordinance.

For associations governed by Minnesota Statutes, the proper manner of asserting the position of the city of Woodbury would be to amend Chapter 515B. For other associations not governed by statute, the city would have to secure voluntary compliance, unless the governing documents were expressly made subject to city ordinances, which would be unusual.

A copy of the ordinance that was proposed can be obtained at the City of Woodbury's website at http://www.ci.woodbury.mn.us/planning/draftaltenergyord.pdf. The legislative action committee of the Minnesota Chapter of the Community Association Institute, CAI LAC, reviewed the proposed ordinance, and wrote a letter to the city explaining its concerns. Foremost among them was the override of the declarations of the associations. The language objected to in the initial draft of the ordinance was "Notwithstanding any provision contained within the common interest community organization documents, an Association shall not prohibit the installation or use of an alternate energy system as defined in Section 24-403."

The article would have the reader believe that the associations are "obstacles"to efforts by the city to create green initiatives. This just isn't a correct interpretation. The residents of the communities governed by declarations purchased their homes in reliance on the declaration of the association, and in most cases, Minnesota Statute 515B. They knew that the declaration could be amended by its terms; however, they relied on the fact that the declaration would remain as it was at the time of their purchase unless the members of the association voted to amend the declaration.

The City Council of the City of Woodbury considered the results of the study by the planning commission and on September 21, 2009 recommended that staff work with associations to develop model bylaws to allow alternative energy systems rather than a regulatory approach. The section in the ordinance that addressed common interest communities has been deleted. The removal of the override of the governing documents is positive, and CAI LAC will be offering its assistance in formulating a revised ordinance.

The associations are not obstacles, but have declarations that should be respected. Citizens of Woodbury purchased in reliance upon the declaration and to the right to participate in the amendment process set forth in the declaration should there be a change.

This is one example of public officials not understanding the nature of associations.