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Green(ing) Homeowners Associations   1 comment

As Green As Grass: How Community Associations Can Incorporate Green Concepts into Community Governance

Associations large and small can follow the current green trends in a number of ways. While it seems that these days, everyone wants to “go green” it can be difficult to know where to start in both commercial and residential associations. The options and costs can be confusing, to say the least. However, the benefits can go beyond mere personal satisfaction to create a direct effect on the value of the common areas and the lots in the development.

In essence, these changes can take two forms: first, a “green audit” of the association documents and second, establishing green programs.

The first option, performing a “green audit”, entails evaluating the legal documents that govern the development to identify use restrictions and design/architectural requirements that may be inappropriate for current and foreseeable items that would create various efficiencies for owners and the association (in other words, “green” products). For example, given the recent drought conditions in northeast Georgia, the use of rain barrels to capture rainwater for use in watering landscaping or washing cars is beneficial – reducing public water usage and water bills or maintaining landscaping during watering bans. However, many standard architectural controls would prohibit or limit their use. Similarly, vegetable gardens, solar panels, and clotheslines are often prohibited but are becoming more desirable in residential developments. Even in commercial developments, one might find a prohibition on solar panels. These types of restrictions may interfere with an owner or an association’s ability to take advantage of tax credits or utility company incentives – something that has a real, quantifiable effect on the owner or association’s bank account.

In the course of a green audit, one would also address the authority to make and modify rules and potentially adopt a statement of ideals for addressing the ever-changing materials and options available on the market (such as new types of fencing or siding products) that may become desirable in the future. This would enhance the development’s ability to allow owners to adopt these new materials when they become marketable, instead of forcing them to use materials that are potentially less efficient or long-lasting due to a need to comply with rules that could not be easily amended or updated to track changing technologies and products. Another idea is to adopt a “sundown” provision that requires the review and re-authorization of use restrictions and design guidelines after certain periods of time to prevent the continued adherence to restrictions that no longer make sense for the development. Of course, such an audit would require the assistance of an experienced community association attorney, who can help the association improve the way the governing documents work and make sure that the changes are enforceable.

One caveat is that associations can carry these ideas too far. Getting expert advice from attorneys, association managers, landscape architects, arborists, and the like, as applicable, will go a long way to helping an association accomplish its goals. Some associations have good ideas (“we’re a green community”) but do not really have the experience or knowledge to really implement them. Adopting blanket requirements that tree removal will not be permitted or that open areas must stay “untouched” may actually have an adverse effect on the community. An arborist or landscape designer may point out things that the association never realized about the life cycle of the trees in the community or their relative health. Untouched open areas are likely to actually contain degraded wetlands or streams, invasive and undesirable plant species, and trash.

Working with experts (including land trusts, if a conservation easement is desirable) will help the association identify if their open areas need help, and perhaps point them in a cost-effective direction to remedy the existing problems by returning them to a more “natural” state. It is possible that a land trust or other conservation entity might be able to assist the association in this endeavor.

The second avenue associations can pursue to “go green” is adopting development-wide programs. To begin, one must check the governing documents for the association to ensure that there is sufficient authority to create and fund the program. Again, an experienced community association attorney can help with this question. If there is authority for establishing committees, the association can establish voluntary programs for recycling computers, cell phones, and other electronics; for creating a community garden and composting program; for setting up a farmer’s market in the neighborhood; for purchasing rechargeable lawn mowers and leaf blowers to reduce gas-powered engine emissions and noise pollution; or for ride-sharing.

These green ideas can even be incorporated into existing association committees, such as a pool committee (investigating converting a standard chlorine pool into a salt water pool) or converting fountains to a re-circulating type. These programs can add considerable value to the development, including the perception of the value of living or working there and increased opportunities for involvement, in addition to accomplishing a “green goal.”

It is even possible that the association can establish “green” programs or services for the development and charge all of the owners for the cost of those programs or services. Again, consult your community association attorney to make sure that the documents allow the establishment of such programs before going forward with them. Not all documents permit the association the discretion to freely adopt services that impact their annual assessments.

There are a wealth of ways to “go green” these days, and it is clear that this trend is more than just a fad. It is a desire to find ways to do things more efficiently and with less dependence on limited resources, while reducing long-term costs. Associations can stand in the way of owners trying to install items that would be beneficial to their homes, businesses, and bank accounts, or they can understand this trend and assist the members by adopting some of these “green” ideals.

By: Amy H. Bray, partner in our Commercial Real Estate Department

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