Maine Solar Rights Act: Post-2009 HOA Solar Bans Are Void

The Solar Rights Act was enacted as PL 2009, c. 273 and sits at 33 M.R.S. sections 1421 through 1424. Section 1422 states the policy plainly: it is the policy of the State to promote the use of solar energy and to avoid unnecessary obstacles to the use of solar energy devices. Section 1423 is the operative provision, and it is unusually broad in one respect and unusually narrow in another.

The breadth is in the definition of "legal instrument" at section 1421(1). It covers three separate categories: municipal ordinances, bylaws or regulations that directly regulate the installation or use of solar energy devices on residential property; rules, bylaws or regulations of an association of property owners, including but not limited to a homeowners association, unit owners association or condominium owners association; and deed restrictions, restrictive covenants, declarations, contracts or similar binding agreements. Maine is one of the few states whose solar-rights statute reaches its own towns and cities alongside private covenants, so a municipal ordinance that directly regulates residential solar installation is subject to the same test as an HOA rule.

The narrowness is the date. Section 1423(1) applies the section only to a legal instrument adopted or created after September 30, 2009. A restrictive covenant recorded with a Maine subdivision in 1994, or a condominium declaration recorded in 2003, is simply outside the chapter and may ban panels outright. What matters is when the instrument was adopted or created, not when the association tries to enforce it, so an owner should date the specific rule being enforced. A design rule or declaration amendment adopted by the board in, say, 2018 is a legal instrument created after the cutoff and is covered even though the community itself is older.

The device must also fit the section 1421(4) definition of a solar collector: a device, structure or part of a device or structure designed and used to transform solar energy into thermal, chemical or electrical energy to meet the water heating, space heating, space cooling or electricity generation requirements of one residential dwelling. A shared array sized to serve several units is not a solar collector under that definition and carries no protection from this chapter.

Section 1423(3) carves out property in common ownership with 3rd parties and common elements of a condominium. For a Maine condominium owner whose building roof is a common element, that carve-out is decisive: the association may prohibit panels there, and the right in section 1423(2) attaches instead to residential property the person owns. Section 1423(4) then allows reasonable restrictions, and defines a reasonable restriction as one necessary to protect public health and safety including safe access to and rapid evacuation of buildings, buildings from damage, historic or aesthetic values, or shorelands under the shoreland zoning provisions of Title 38, chapter 3, subchapter 1, article 2-B. The aesthetic ground carries a condition that the other three do not: it is available only when an alternative of reasonably comparable cost and convenience is available. An association that wants panels moved off a street-facing roof slope for appearance has to be able to point to a comparably priced and comparably convenient alternative location, not merely assert that the panels look wrong.

Section 1424 keeps the chapter in its lane: it does not supersede any existing authority of any entity to adopt and enforce laws, rules or regulations on any matter other than the installation and use of solar energy devices on residential property. Building permits, electrical inspection, shoreland zoning and net energy billing under 35-A M.R.S. section 3209-A all continue to apply.

Nothing in chapter 28-A guarantees sunlight will keep reaching an installed array. Access to direct sunlight in Maine is a matter of private easement under chapter 28: section 1401 requires that any easement obtained for the purpose of ensuring access to direct sunlight be created in writing, be an interest in real property, and be recorded and indexed like other conveyances, and provides that solar easements are appurtenant and run with the land benefited and burdened. Section 1402 allows the instrument to describe the space affected and the terms of grant or termination, and to include a map, with the written easement controlling over the map if the two conflict.

Chapter 28-A creates no fine, no state agency enforcement role and no attorney fee award. Enforcement is by the owner, in court: an owner facing a post-September 30, 2009 covenant, board rule or municipal ordinance that prohibits a solar collector argues the instrument is unenforceable under section 1423(2) and asks the court to declare it void or to enjoin the association from applying it. Because section 1423 speaks to whether the instrument may prohibit installation, the practical posture is usually defensive, raised when an association sues to compel removal or records a lien for fines assessed under its own bylaws.

An association may still fine or sue over a restriction that survives section 1423(4). Refusing a mounting arrangement that would block a required means of egress, or that would damage the structure, is squarely within the statute, and an owner who ignores that kind of condition is exposed to the association's ordinary remedies. Where a Maine municipality is the enforcing party, the same analysis applies to its notice of violation, because section 1421(1)(A) makes a municipal ordinance that directly regulates residential solar installation a legal instrument. Shoreland zoning is the exception written into section 1423(4)(D), and a code enforcement officer acting under Title 38, chapter 3, subchapter 1, article 2-B is not displaced by the Solar Rights Act.