The 88th Texas Legislative Session is well underway and signs are pointing to another legislative session that could substantially impact property owners’ associations (POAs). During this session, RMWBH will be spotlighting select bills that could bring these far-reaching effects. The first bill we spotlight is HB 330.
HB 330, titled Relating to regulation of residential wind power facilities by property owners’ associations, was introduced by Rep. Vikki Goodwin of Austin, on November 11, 2022. This bill would add Section. 202.024 to Chapter 202 of the Texas Property Code.
The intent of HB 330, if passed, is to allow owners to construct wind power facilities on their property to power their home. The bill would prohibit POAs from including or enforcing provisions in a dedicatory instrument banning wind power facilities of an appropriate residential scale.
HB 330 would allow for some regulation by the POA. The POA would be able to enforce restrictions if the wind power facility is:
- A threat to public health or safety or violates the law
- Located on property owned or maintained by the POA
- Located in common areas
- Located in an area on the owner’s property other than the area designated by the POA for the wind power facility
- POA would not be able to enforce if the alternate location increases the estimated annual energy production of the facility by more than 10 percent from the POA designated area
- Determined by available modeling tool provided by the National Renewable Energy Laboratory
- Voids material warranties, as installed
- Install without approval of the POA or POA’s ACC committee
If HB 330 passes, the ACC committee or the POA would not be able to withhold approval of the facility if the above requirements are met or exceeded, unless the POA determines in writing that the placement of the facility, as proposed by the owner, substantially interferes with the use and enjoyment of the land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities. However, the homeowner would be able to clear this hurdle by getting written approval from their adjoining neighbors.
These changes that HB 330 could bring form a broad bill with very few specifics that would create immediate potential issues for POAs should the bill pass. These issues include:
- No definition of appropriate residential scale
- While it is reasonable to assume that wind mills the size of those in West Texas are not appropriate residential scale, is the appropriate scale 5ft, 10ft, not to rise above the tallest point of the home?
- Limited POA control on location and type of wind power facility
- Can the discomfort or annoyance factor be enforced after installation or in the event an adjoining neighbor moves and the new neighbor finds unreasonable discomfort and annoyance from the wind power facility?
As HB 330 goes through the various committees, it is possible some of the concerns for the bill may be addressed and aspects of the bill will be modified. RMWBH will be watching HB330 closely throughout the 88th Texas Legislative Session and will continue to provide updates on this bill and the others potentially affecting POAs.
