CHANGES TO ENERGY POLICY STATEMENT ACT

The Illinois Homeowners’ Energy Policy Statement Act (765 ILCS 165/1 et. seq.) has been in effect for more than a decade. The general effect of the Act is that it grants certain rights to owners within different types of association communities related to solar energy systems. House Bill 0644, which passed both houses of the Illinois General Assembly as of May 30, 2021, and was signed into law by Governor Pritzker on July 26, 2021, as Public Act 102-0161 makes several significant changes to this Act that may affect how owners within association communities and/or boards of association communities’ approach solar energy systems. Below is a summary of the major changes to this Act made by Public Act 102-0161. These changes are now in effect.

Applicability to Condominiums and Townhomes

The Act still applies to condominium associations and townhome associations. However, the effect of the changes in Public Act 102-0161 is that the Act will no longer apply to many condominium associations and townhome associations. Section 45 of the Act is changed to state that the Act does not apply to any building that is part of an association community and has a “shared roof”. The changes to the Act define a “shared roof” as “any roof that (i) serves more than one unit, including, but not limited to, a contiguous roof serving adjacent units, or (ii) is part of the common elements or common area”.

Therefore, to the extent that the roof is considered part of the common elements for a condominium (which is the case in most condominium associations), the Act no longer applies to that condominium. Additionally, to the extent that multiple townhome units in the same building share a roof and/or have a contiguous roof (which is the case in most townhome associations), the Act no longer applies to that townhome association. The effect of this is that any rights granted to owners within the Act to install solar energy systems on the roof do not apply to the owners within these townhome or condominium associations. Owners within such townhome and condominium associations would only have the right to install solar energy systems on the roof if, and to the extent, these are permitted by the association’s governing documents.

Location of Solar Energy Systems

For those associations where owners are still granted rights to install solar energy systems under the Act (i.e., most detached single-family homeowner associations), the rights of associations to regulate the placement of solar energy systems on the roofs has been significantly altered. Previously, the Act permitted associations to limit solar energy system installations to “an orientation to the south or within 45 degrees east or west of due south” as long as this did not “impair the effective operation of the solar energy system”. This location limitation has been removed from the Act.

Instead, the Act now permits an association to “determine the specific configuration of the elements of a solar energy system on a given roof face, provided that it may not prohibit elements of the system from being installed on any roof face and that any such determination may not reduce the production of the solar energy system by more than 10%.” As used in the Act, “production” means “the estimated annual electrical production of the solar energy system”.

Thus, associations may still adopt restrictions on where a solar energy system may be placed on a roof. However, in adopting such restrictions the association must consider the impact these restrictions will have on the production of the solar energy system. A calculation will need to be made, and if the association’s proposed restrictions would reduce the production of the solar energy system by more than 10%, then the proposed restrictions would not be permitted by the Act. What this likely means is that a case-by-case analysis will be necessary with each solar energy system application from an owner to determine what impact, if any, the association’s proposed placement restrictions will have on the production of the solar energy system.

Deadline to Adopt Energy Policy Statement

The Act previously gave associations 120 days to adopt an energy policy statement following the receipt of a request for a copy of the statement or the receipt of an application from an owner to install a solar energy system. The changes to the Act now give associations only 90 days to adopt an energy policy statement following the receipt of either of these requests.

Deadline to Respond to Application for Solar Energy System

The Act previously gave associations 90 days to respond to an owner’s request to install a solar energy system. The changes to the Act now give associations only 75 days to respond to such a request from an owner.

Height Applicability

Previously, the Act stated that it did not apply to any building that was greater than 30 feet in height. The Act now states that it does not apply to any building that is greater than 60 feet in height. The effect of this change is that any homes that are between 30 and 60 feet in height were previously not subject to the Act but now are.

Summary and Conclusion

For most townhome and condominium associations, the changes to the Act mean that owners within these associations no longer have a right under the Act to install solar energy systems on the shared roofs. For associations falling into this category that previously adopted an energy policy statement, the changes to the Act may mean that those statements can now be rescinded.

For most detached single-family homeowner associations, on the other hand, the changes to the Act mean that any previously adopted energy policy statements now likely need to be revised to reflect the different analysis necessary in evaluating a request by an owner to install a solar energy system. Additionally, any such associations that have not previously adopted an energy policy statement now have a shorter window of time to do so upon the initial receipt of a request for such statement or application to install a solar energy system by an owner.

If your association is looking to adopt an energy policy statement or modify a previously adopted energy policy statement, please feel free to contact our office and one of our attorneys would be happy to assist you.