Appeals court says Ballston solar panel lawsuit can proceed
Neighbors claim deed restrictions prohibit array
Updated 8:46 p.m.
BALLSTON Residents whose lawsuit over a neighbor’s large solar panels was struck down can proceed with their legal case, an appeals court has ruled.
Judges last week reversed a lower court decision on the pole-mounted solar panels in Seelye Estates West in the town of Ballston, saying that the panels may violate the neighborhood’s deed restrictions if they are a nuisance offensive to the neighborhood.
In a decision filed March 28 by the State Supreme Court Appellate Division, Third Judicial Department, judges dismissed a motion by solar-panel homeowners Brian and Christa Haines to have the lawsuit against them thrown out.
“We find that plaintiffs have alleged facts that could support a cause of action based on violation of this covenant,” the court decision reads. “Specifically, we hold that it was sufficient for plaintiffs to allege that the installation of six, 14-foot tall, 8-foot wide solar panels within a neighborhood that carries many aesthetic restrictions is, within the meaning of the restrictive covenant, a nuisance ‘which may be in any manner dangerous or noxious or offensive to the neighborhood inhabitants.’ ”
That means the original March 2012 lawsuit in state Supreme Court in Saratoga County can proceed. Thirty owners of 17 nearby homes filed the suit against the Haineses, alleging that the solar panels were unsightly, cast shadows on a neighboring yard and caused sun glare that could temporarily blind motorists and create a safety hazard.
Their attorney, Charles Harding, last year said that neighborhood property values dropped 10 percent because of the panels. Harding could not be reached for comment Thursday.
The residents who filed the lawsuit are Gary and Josephine Faler, Robert and Christine Marro, John and Rita James, Richard and Lorraine DePuy, John Kempf, Kevin and Nancy Radigan, Kevin and Ellen Boyle, John and Holly Rogers, Susan Sweeney, Michael and Julie Prezioso, James and Lisa Doan, Ivan Darryl and Annette Botsford, Daniel and Carolyn Walsh, David Albright, Richard and Lori Litwa, Marc Stofle, and Richard and Jessica Rzeszotarski.
The Haineses filed a motion to dismiss the lawsuit, arguing that the deed restrictions applied to things like storage sheds and construction materials and didn’t specify that solar panels weren’t allowed.
In June, Judge Stephen A. Ferradino ruled in favor of the couple and struck down the neighbors’ suit.
In its recent ruling, the Appellate Division agreed with Ferradino that the deed restrictions prohibiting storage sheds, propane tanks, garbage cans and automobile equipment don’t apply to the panels. However, the court said this phrase from the deed restriction may apply: “Nor shall any nuisances be maintained on said premises, which may be in any manner dangerous or noxious or offensive to the neighborhood inhabitants.”
The Haineses have not presented enough evidence to show that the panels are not a nuisance, the decision states. Their attorney did not return a call for comment Thursday afternoon.
In October 2011, the couple got a building permit and installed the panels in the side yard at 44 Long Creek Drive.
Brian Haines said in January 2012 that he expected the panels to cover 100 percent of the home’s electricity needs, adding that pole-mounted solar displays capture more sunlight and produce more energy than roof-mounted displays because they can be adjusted to match the sun’s angle seasonally.
Municipalities and neighbors generally prefer roof-mounted solar panels because they are less obtrusive.
In August, as a result of the neighbors’ concern, the town approved a new law requiring new pole-mounted solar panels taller than 10 feet to get an area use permit. Those 10 feet and under need only a building permit.