Summary: Florida law forbids any entity—including a homeowners association—from prohibiting the installation of solar panels or other renewable energy devices on a building. Reasonable restrictions can be established for installations, but restrictions cannot impair the performance or increase the cost (which would impair the economic performance) of a renewable energy device.
A homeowners association generally cannot prevent the installation of solar panels on a roof merely because the solar panels would be visible from the street. An architectural review board or committee can dictate where on a home’s roof that solar panels may be installed, provided the solar panels will face within 45° of due south at the dictated location, and the location will not increase the cost (for example, by requiring the added cost of “reverse” mounting racks so solar panels can face south when installed on a north-facing roof area hidden from street view).
Any requirement(s) that solar panels be screened from view by trees or fences will generally violate the statute for two reasons: shading of the solar panels and the added cost of the visual barrier. And ground racks for solar panels cannot be required in lieu of rooftop installation. Fla. Stat. §163.04(2) says that a deed restriction, covenant, declaration, or similar binding agreement may not prohibit or have the effect of prohibiting solar collectors from being installed on buildings.
The law applies only to structures that do not exceed three stories in height. And a significant exception prevents the attachment of renewable energy devices to balcony and patio railings in condominiums, cooperatives and apartments.
163.04 Energy devices based on renewable resources.—
(1) Notwithstanding any provision of this chapter or other provision of general or special law, the adoption of an ordinance by a governing body, as those terms are defined in this chapter, which prohibits or has the effect of prohibiting the installation of solar collectors, clotheslines, or other energy devices based on renewable resources is expressly prohibited.
(2) No deed restrictions, covenants, or similar binding agreements running with the land shall prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restrictions, covenants, or binding agreements. A property owner may not be denied permission to install solar collectors or other energy devices based on renewable resources by any entity granted the power or right in any deed restriction, covenant, or similar binding agreement to approve, forbid, control, or direct alteration of property with respect to residential dwellings not exceeding three stories in height. For purposes of this subsection, such entity may determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 45 degrees east or west of due south provided that such determination does not impair the effective operation of the solar collectors.
(3) In any litigation arising under the provisions of this section, the prevailing party shall be entitled to costs and reasonable attorney’s fees.
(4) The legislative intent in enacting these provisions is to protect the public health, safety, and welfare by encouraging the development and use of renewable resources in order to conserve and protect the value of land, buildings, and resources by preventing the adoption of measures which will have the ultimate effect, however unintended, of driving the costs of owning and operating commercial or residential property beyond the capacity of private owners to maintain. This section shall not apply to patio railings in condominiums, cooperatives, or apartments.
History.—s. 8, ch. 80-163; s. 1, ch. 92-89; s. 14, ch. 93-249.
Case Law on Florida Statute §163.04
Florida’s appellate courts have addressed Fla. Stat. §163.04 in three written opinions.
The City of Ormond Beach Case. In City of Ormond Beach v. State ex rel. Del Marco, 426 So.2d 1029 (Fla. 5th DCA 1983), a property owner sought a zoning variance to erect a power-generating windmill on his oceanfront property. Perhaps to no one’s surprise, the city board of adjustment denied the variance request. The property owner sued. A trial court found in favor of the property owner and the city appealed. The appellate court generally affirmed the trial court, but significantly ruled that Fla. Stat. §163.04 grants a property owner the right only to satisfactory performance; and not optimum performance. The statute, as amended in 1992, now implies that “satisfactory” performance for solar collectors is attained by an orientation facing within 45° of due south.
The City of Ormond Beach opinion suggests that a homeowners association would be acting within its authority, under Fla. Stat. §163.04, if a homeowner sought to install solar panels on a south-facing roof area visible from the street, but the association required the homeowner to move the location of the solar panels to another roof facing within 45° of due south and not visible from the street. As a practical matter, the rectangular shapes of most buildings make the instances where this option would be available exceedingly rare.
The Sorrento Case. In Sorrentino v. River Run Condominium Association, 925 So.2d 1060 (Fla. 5th DCA 2006), the owners of a condominium did not seek approval from a condominium association before installing two tubular skylights. A lawsuit and countersuit followed. The trial court ruled that while the skylights fell within the scope of Fla. Stat. §163.04, as energy saving devices, the recovery of attorney fees was not available because the owners had not prevailed—the statutory precondition for recovery of attorney fees—since they had not followed the proper architectural review procedure. On appeal, the district court reversed the trial court ruling on attorney fees, finding that the owners were entitled to recover attorney fees, even though they had not sought the association’s prior approval, because they had effectively prevailed on the major issue: the association’s inability to prevent installation of the skylights.
While the Sorrento opinion might seem to suggest Florida homeowners would be within their rights to ignore architectual review of a proposed renewable energy device installation, this is not an accurate reading of the opinion. The law, as amended, allows a homeowners association to estabish reasonable restrictions. A homeowner would likely lose a lawsuit brought by a homeowners association to enforce reasonable restrictions. Examples of reasonable restrictions might include requirements for:
- moving a proposed solar panel bank from a south-facing roof visible from the street to a different roof facing within 45° of due south, so long as the move did not shade the solar panels or increase the cost of installation;
- all-black solar panels in roof locations visible from the street, if readily available in the marketplace, in lieu of solar panels with plain aluminum frames and or white “checkerboard” grid patterns; or
- flush-mounted solar panels (i.e., solar panels installed on or raised slightly above—but parallel to—a roof surface) on roof locations visible from the street, as a tilt angle change will usually not impact solar panel performace more than a change from due south to within 45° of due south, which the law allows.
The Taylor Case. In Taylor v. Ridge at the Bluffs Homeowners Ass’n, Inc., 579 So.2d 895 (Fla. 4th DCA 1991), a homeowners association challenged the applicability of the 1987 version of Fla. Stat. §163.04 to homeowners associations, arguing that a homeowners association was not a governing body within the meaning of the statute. The association won the battle but lost the war. As a result of this case, the legislature amended the statute in 1992 to explicitly address condominium and homeowners associations.
This information applies only to solar access rights within the State of Florida and is provided for educational purposes only. You should not interpret the information above as legal advice for your particular situation. Every set of facts and circumstances is different. Also, the information above might not reflect recent appellate decisions or changes in Florida law. If you have questions or concerns about your particular solar access rights and potential remedies, you should seek advice from an attorney licensed in your state.