The American Clean Energy and Security Act of 2009 (the "Act"), which recently passed the U.S. House, contains certain provisions that restrict affordable housing homeowners associations from prohibiting the use of solar energy systems. Many associations contain certain restrictions, the enforcement of which has either been given to a board of trustees via a master declaration, or to the surrounding homeowners via a deed restriction and/or neighborhood scheme. However, the Act (also known as the Waxman-Markey Act) prohibits associations from any action "that impairs the installation, construction, maintenance or use of solar energy systems." New Jersey has already addressed this issue by way of N.J.S.A. 45:22A-48.2 which limits the Associations powers to regulate the qualifications of installation personnel, solar collector location, concealment and size. However, if the Act becomes law, as written, it may supersede current statutes and could further curtail the restrictions that associations may impose upon its owners.
It is important to note that this legislation does not affect the rights and responsibilities of condominium owners and boards pursuant to the New Jersey Condominium Act. In most, if not all, condominiums the roofs are designated as common elements or common property. Therefore, the decision to install solar collectors on the roof of a condominium would have to be made solely by the condominium associations.