THE COUNTY COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM
CASE NO. MS-02-21282-RJ
Peter M. Evans
HOA RIDGE BLUFFS
Linda Reed Smith, Property Manager
Ed Bebe, President
FINAL JUDGMENT FOR PLAINTIFF
This matter came before the
Court for Non-Jury trial on January 8, 2003. Plaintiff and Defendant were
present. The conflict arises after the installation of a 21" Solar Lighting
Tube on the front elevation of her home by the plaintiff. The work was
done prior to the plaintiff seeking approval from the apprpropriate Architectural
Control Committee.The committee determined that the Solar Energy Tube installed
by the plaintiff was inappropriate and ordered it removed. In order to
complete the sale of her home in a timely manner the Plaintiff was required
to remove the Solar Energy Tube. The plaintiff now claims that the Homeowners'
Association was in violationof Florida Statute § 163.04 in ordering
her to remove the Solar Energy Tube. She seeks reimbursement for the cost
and expenses she incurred in the installation and removal of the Tube.
Florida Statutes read as follows:
FS § 163.04
Energy Devices Based on Renewable Resources
(1) Notwithstanding any provision of this
chapter or other provision of general or special law, the adoption of an
ordinance by a governing body, as those terms are defined in this chapter,
which prohibits or has the effect of prohibiting the installation of solar
collectors, clotheslines, or other energy devices based on renewable resources
is expressly prohibited.
(2) No deed-restrictions, covenants, or
similar binding agreements running with the land shall prohibit or have
the effect of prohibiting the installation of solar collectors, clotheslines,
or other energy devices based on renewable resources from being installed
on buildings erected on the lots or parcels covered by the deed-restrictions
covenants, or binding agreements. A property owner may not be denied permission
to install solar collectors or other energy devices based on renewable
resources by any entity granted the power or right in any deed-restriction,
covenant, or similar binding agreement to approve, forbid, control or direct
alteration of property with respect to residential dwellings not exceeding
three stories in height. For purposes of this subsection, such entity may
determine the specific location where solar collectors may be installed
on the roof within an orientation to the south or within 45 east or west
of due south provided that such determination does not impair the effective
operation of the solar collectors.
(3) In any litigation arising under the
provisions of this section, the prevailing party may be entitled to costs
and reasonable attorney fees.
(4) The legislative intend in enacting
these provision is to protect the public health, safety, and welfare by
encouraging the development and use of renewable resources in order to
conserve and protect the value of land, buildings, and resources by preventing
the adaption of of measures which will have the ultimate effect, however
unintended, of driving the cost of owning and operating commercial and
residential property beyond the capacity of private owners to maintain.
This section shall not apply to pato railings in condominiums, cooperatives,
Based upon the evidence
and testimony presented, the court finds that the solar tube installed
by the plaintiff is an energy device based on renewable resources within
the meaning of FS § 163.04. The courts further finds the restrictions
imposed by the ACC as to size and location of the device would impair the
effective operation of the device and are, therefore, improper. The plaintiff
is entitled to be reimbursed for the cost of installation of the solar
lighting in the amount of $669; removal of the tube and repair of the ceiling
in the amount of $950;Roof repair of $350; Fines paid to HOA of The Bluffs
of $900. In addition the plaintiff is entitled to payment of court costs,
Including expert witness feesincurred in the trial of the action.The court
ruled at trial that there was insufficient evidence to support a claim
of individual liabilityagainst Ed Bebe and Linda Reed Smith. Based on the
foregoing, it is:
ADJUDGED that the Plaintiff, Liesel Appel, recover from the Defendants,
the Ridge at the Bluffs Homeowners Association, Inc. the sum of $2869 in
principal, prejudgment interest in the amount of $70.74 and $920 in court
costs, for a total of 3859.74, that shall bear interest at the rate of
6% per annum, for which sum let execution issue.
DONE AND ORDERED, in chambers at West Palm Beach, Palm Beach County,
Florida, this 19 day of February, 2003.
______SIGNED & DATED_______
PETER M. EVANS
COUNTY COURT JUDGE
Tanique G.Leem Esq.
Gelfand & Arpe, P.A.
One Clearlake Center - Suite 1010
250 South Australian Ave.
West Palm Beach, Florida 33401
475 N Etan #C5
Birmingham, MI. 48009