Installation of Solar Lighting Tube
Liesel Appel, Plaintiff
Linda Reed Smith, Property Manager
Ed Bebe, President
CASE NO. MS-02-21282-RJ
JUDGE:    Peter M. Evans
Liesel Appel


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, or apartments.

    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:

     ORDERED AND 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
Copies Furnished:
Tanique G.Leem Esq.
Gelfand & Arpe, P.A.
One Clearlake Center - Suite 1010
250 South Australian Ave.
West Palm Beach, Florida 33401

Liesel Appel
475 N Etan #C5
Birmingham, MI. 48009