In July of this year, Governor Brown signed Senate Bill 209 (“SB 209”) into law. As a result, beginning January 1, 2012, Section 1353.9 will be added to the California Civil Code to restrict an association’s ability to prohibit the installation of Electric Vehicle (“EV”) charging stations (“Stations”). You may have heard of this new law but, like many of our clients and industry partners, wonder what it means for associations and their members. How will the new law ultimately function? Who pays the cost to run the electricity? Must associations permit the installation of Stations on association property? This post discusses the components and criticisms of SB 209 and in doing so addresses some of the questions which have been raised in the wake of its signing.
At the outset, many may wonder why EV charging stations are needed in the first place. Can’t today’s popular EV models be charged by simply plugging them into a standard wall outlet? While this may be true, the charging technology incorporated into Stations provides EV owners with substantially reduced charging times. Additionally, as opposed to a wall outlet or a large extension cord, a Station can be accessible to multiple EV owners and has additional current or connection sensing mechanisms to disconnect the power when the EV is not actually charging. This is to prevent a potentially dangerous situation should an EV be accidentally driven away before being unplugged. The advanced charging technology and safety benefits that Stations provide are touted as a huge leap forward in removing some of the barriers to widespread EV adoption.
Perhaps the biggest barrier to widespread EV adoption is ensuring that an adequate charging infrastructure is in place to accommodate the needs of EV owners. EV proponents view the installation of Stations as the foundation upon which such an infrastructure can be built. This view is likely at the core of SB 209, as the bill states that “it is the policy of the State of California to promote, encourage, and remove obstacles to the use of [EV] charging stations.”
In furtherance of this policy, SB 209 renders void and unenforceable “any covenant, restriction, or condition…[in an association’s governing document]…that effectively prohibits or restricts the installation or use of an [EV] charging station.” However, this is not to say that associations are stripped of all authority to control or regulate the installation of Stations in their communities. Associations may still place restrictions on the use and installation of Stations, provided that those restrictions are “reasonable”–meaning that the restrictions do not “significantly increase the cost of the [Station] or significantly decrease its efficiency or specified performance.”
In addition to imposing “reasonable” restrictions, associations are authorized to require association approval for the installation or use of a Station. In such a case, SB 209 mandates that the application for approval (1) “be processed and approved by the association in the same manner as an application for approval of an architectural modification to the property,” (2) not be “willfully avoided or delayed,” and (3) if not denied in writing within sixty (60) days from the date of receipt of the application, be deemed approved “unless that delay is the result of a reasonable request for additional information.” Associations wishing to require approval for Stations similar to that which is required for architectural improvements and modifications must therefore be vigilant in timely reviewing Station applications and in requesting additional information where necessary.
Reviewing and approving plans for Stations to be installed in private garages or on homeowner property may not raise any immediate concern. However, what about when a homeowner wishes to install a Station on common area or exclusive use common area? Must the association permit the homeowner to install a Station on property that she may not own or may own in common with the rest of the membership? Surprisingly, the language of SB 209 can be read to require just that. This issue is at the heart of industry criticism and concern for SB 209. In a report it issued after SB 209 was signed, CAI’s Legislative Action Committee (“CLAC”) stated that “SB 209, which the Governor signed…authorizes association members to install [EV] charging devices in garages and exclusive use common areas. CLAC remains integrally involved in amendments to this law…[that]…will cover issues…such as its unconstitutional ‘taking’ of property, liability for damages, and …conflict in existing law regarding members’ right to approve or disapprove such [exclusive use of common area] by a 2/3 vote.” In acknowledging SB 209’s defects, Governor Brown issued a “signing message” which directs SB 209’s authors to fix its deficiencies immediately. However, Governor Brown’s “signing message” provides little comfort, if any, to those in the industry concerned with the potential ramifications of SB 209 should its defects not be corrected.
In the event a homeowner does wish to install a Station on common area or exclusive use common area, SB 209 subjects that homeowner to additional requirements. These requirements include complying with the association’s architectural standards, engaging a licensed contractor to install the Station, and paying for the electricity usage associated with the Station. Additionally, the homeowner is made responsible for any costs for damage to the Station, common areas, exclusive use common areas or adjacent units resulting from the installation or maintenance of the Station, and is also required to maintain an umbrella liability coverage policy of $1,000,000 covering these obligations and naming the association as an additional insured. Because some insurance professionals remain doubtful that homeowners will be able to secure such a policy, the insurance requirement may operate to preclude the installation of Stations on common area or exclusive use common area.
In addition to the defects in SB 209 and the significant responsibilities it places upon homeowners, there is also concern over SB 209’s practical application. Many associations are already plagued with disputes over the lack of parking in their communities. Having the ability to designate specific parking spaces for the benefit of EV owners, to find adequate locations for the installation of Stations, or to successfully segregate the electricity costs associated with the use of the Station may not be logistically possible for associations. Still, associations must endeavor to comply with the new law, as a failure to do so exposes the association to a civil penalty of $1,000 as well as liability to the homeowner for actual damages and attorney’s fees.
Regardless of the criticism and concern for SB 209, the fact is that it serves as another step toward our future. The continued development of EVs and their supporting technology will surely affect our lives and our communities for many years to come. The defects and perceived problems with SB 209 may make it such that the new law bears little, if any, negative impact on associations. However, like prior legislative developments which may have been met with apprehension and fear, SB 209 is simply a new part of the ever-changing legal landscape faced by associations and the professionals who service them.