Illinois Homeowners’ Energy Policy Statement Act

Illinois protects rooftop solar against community associations in a statute of its own, and it is stronger than most. Chapter 765, Act 165 “may be cited as the Homeowners’ Energy Policy Statement Act” (§ 165/1). It took effect on 1 January 2011 (P.A. 96-1436) and was substantially rewritten twice since — by Public Act 102-161 in 2021 and Public Act 103-296 in 2023 — so older summaries of it are unreliable.

The legislature said why. The intent is to protect public health, safety and welfare “by encouraging the development and use of solar energy systems… by preventing the adoption of measures which will have the ultimate effect, however unintended, of preventing the use of solar energy systems on any home that is subject to a homeowners’ association, common interest community association, or condominium unit owners’ association” (§ 165/5). Note “however unintended” — the Act is aimed at effects, not motives.

Read this first: the Act does not reach every building

Section 165/45 is short, it is the last section in the Act, and it decides whether any of the rest applies to you. The Act “shall not apply to any building that: (1) is greater than 60 feet in height; or (2) has a shared roof and is subject to a homeowners’ association, common interest community association, condominium unit owners’ association” (§ 165/45).

“Shared roof” is defined broadly, in the same section: “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”.

That takes a great deal of Illinois community housing outside this Act. A stacked condominium building has a roof that serves more than one unit. An attached townhome row has a contiguous roof serving adjacent units. A roof in the common elements is caught by limb (ii) whether or not it is shared. So before relying on anything below, establish two facts about your own building: is it taller than 60 feet, and is the roof shared or part of the common elements? If either is true, this Act does not answer your question — your declaration and your association’s own rules do.

One wrinkle worth knowing about. Section 165/15 opens “Notwithstanding any provision of this Act or other provision of law”, and on its face “any provision of this Act” includes § 165/45. Section 45 is both the later enactment (P.A. 102-161) and the more specific provision, and an applicability section is the natural place for a legislature to fix an Act’s reach — so § 45 should control. But the two sentences are in tension on the page, and no Illinois court decision is cited here resolving it.

Where the Act does apply — a detached single-family home or a unit with its own separate, individually-serving roof, in a community governed by an association — it is very strong indeed.

What an association may not do

The prohibition is stated twice, from two directions. First against the association: “the adoption of a bylaw or exercise of any power by the governing entity… which prohibits or has the effect of prohibiting the installation of a solar energy system is expressly prohibited” (§ 165/15). Second against the documents: “No deed restrictions, covenants, or similar binding agreements running with the land shall prohibit or have the effect of prohibiting a solar energy system from being installed…” (§ 165/20(a)).

Nor may an association dictate the technology. A property owner “may not be denied permission to install a solar energy system, or be required to utilize specific technology, including, but not limited to, solar shingles rather than traditional solar panels” by any entity with power under the documents to approve, forbid, control or direct alteration of property. An association that will allow solar only if it looks like a roof tile is doing the thing this clause names.

What the association keeps is narrow, and it is measured. It “may determine the specific configuration of the elements of a solar energy system on a given roof face” — but “it may not prohibit elements of the system from being installed on any roof face”, and any such determination “may not reduce the production of the solar energy system by more than 10%”. “Production” is defined as the estimated annual electrical production of the system. That is a measurable ceiling rather than a vague standard — an association’s preferred layout that costs more than a tenth of the annual yield is outside its power. Note the statutory measure is an estimate, and the Act supplies no method for calculating it, so a contested layout can still turn on competing estimates.

Six more limits, all in § 165/20(b) — and note the first binds the document rather than the board. A written energy policy statement may not condition approval on the approval of adjacent property owners. An association may not inquire into an owner’s energy usage; may not impose conditions impairing the operation of the system; may not impose conditions negatively impacting any component industry standard warranty; may not require post-installation reporting; and may not deny permission “based on system ownership or financing method chosen by the property owner” — so a lease or a power-purchase arrangement is not a ground for refusal.

What it may still require is maintenance-shaped and comparative: an energy policy statement “may impose reasonable conditions concerning the maintenance, repair, replacement, and ultimate removal of damaged or inoperable systems so long as such conditions are not more onerous than the association’s analogous conditions for nonsolar projects”.

The energy policy statement your association owes you

Within 90 days after an association receives a request for a policy statement, or an application from a member, it must adopt a written energy policy statement (§ 165/20(b)). Any such statement, whenever adopted, must explicitly include as minimum standards the terms of § 20. It may go further on two enumerated topics — the location, design and architectural requirements of solar energy systems, and whether wind, rainwater collection or composting systems are allowed and on what terms — and, on an express “[n]otwithstanding the foregoing”, may impose reasonable conditions on maintenance, repair, replacement and removal of damaged or inoperable systems, so long as they are “not more onerous than the association’s analogous conditions for nonsolar projects”.

The association must disclose the statement on request and include it in its declaration. And any provision of a declaration or energy policy statement that conflicts with the Act “shall be void and unenforceable as contrary to public policy” (§ 165/20(c)).

Applying — and what happens if the association sits on it

Where approval is required, the application must be available in hard copy on request or through the association’s website if it has one (§ 165/30(a)). The association need not use a solar-specific form, and may not charge more for a solar application than for any other application about changes to property. At the owner’s request the association may communicate with the owner’s solar contractor.

Thirty days to process — or 120 days if the application was submitted before the association had adopted an energy policy statement (§ 165/30(a), (b)).

And if the association misses the deadline, the owner may simply proceed. Where an association fails to adopt a compliant policy statement or to process an application in time, “the property owner may proceed with the installation or use of the proposed solar energy system notwithstanding any other policy or provision” in the declaration (§ 165/30(c)). There is one step first: the owner must give the association written notice of the alleged failure and 10 business days to cure. During those ten days the association “may only adopt the policy statement or process the application” and “may not take other action, including, but not limited to, seeking injunctive relief”. And an association “may not impose fines or otherwise penalize a property owner for exercising the property owner’s rights under this Act”.

A previously refused application can be resubmitted, and must then be evaluated under the 2023 amendments rather than the rules that applied the first time (§ 165/30(d)). If your association turned you down before July 2023, that is worth knowing.

Remedies

Willful violation carries damages. Any entity other than a public entity that “willfully violates this Act shall be liable to the applicant for actual damages occasioned thereby and for any other consequential damages” (§ 165/35). The same section protects an association that does comply: it “shall not be liable to any other resident or third party for such compliance” — so a board that follows the Act has a statutory defence to an objecting neighbour’s claim arising from that compliance. It is a defence to liability, not a bar on the claim being brought.

Fees follow the event, both ways. “In any litigation arising under this Act or involving the application of this Act, the prevailing party shall be entitled to costs and reasonable attorney’s fees” (§ 165/40). Unlike the records fee-shifts in the two community Acts, this one is not one-way — an owner who brings a weak claim can be ordered to pay the association’s costs.

Finally, the Act does not exempt anyone from the ordinary permitting system: a solar energy system “shall meet applicable standards and requirements imposed by State and local permitting authorities other than” the association (§ 165/25).

How this Act meets your association’s documents

This Act sits on top of whichever community statute governs you, and it can be switched off by your building. Section 165/45 is the first thing to check: over 60 feet, or a shared roof, and the Act does not apply at all. In that case the question returns to your declaration and to the Condominium Property Act or the Common Interest Community Association Act.

Where it does apply, it overrides the documents. A conflicting provision of a declaration or energy policy statement is void and unenforceable as contrary to public policy (§ 165/20(c)) — the same technique the Condominium Property Act uses at § 605/2.1.

The board’s ordinary rulemaking power does not survive contact with this Act. Section 165/15 reaches “the adoption of a bylaw or exercise of any power” that prohibits or has the effect of prohibiting installation — which is wider than a rule about solar. An architectural review standard that happens to make solar impossible is within its language.

Rainwater collection and composting are mentioned but not protected. Section 165/20(b)(ii) lets an energy policy statement address whether those systems are allowed and on what terms — permission for the association to regulate them, not a right for the owner to install them. The Act’s substantive protections run to solar energy systems as § 165/10 defines that term.

Wind is the one the Act does not resolve. Section 165/20(b)(ii) groups “a wind energy collection… system” with rainwater and composting, as something the policy statement may decide whether to allow. But § 165/10 defines “solar collector” to include “a mechanism or process used for gathering solar energy through wind or thermal gradients” — which pulls some wind installations inside the protected term solar energy system. The two provisions sit in tension and the Act does not say which wins, so treat wind as arguable rather than settled either way.

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