With a light snow season this past winter, Colorado is facing historically low snowpack in the high country. Less snowpack means drought conditions and less available irrigation water for landscaping use this summer.
In an effort to conserve water, various municipalities have already imposed watering restrictions. On March 25th the Denver Board of Water Commissioners adopted a resolution limiting customers in single-family residential properties to watering no more than two days per week. Denver is not alone with other Colorado cities such as Aurora, Arvada, Brighton, Broomfield, Golden, Thornton, and many others declaring drought conditions and imposing similar watering restrictions.
These conditions will affect Colorado HOAs in multiple ways. The ability of some homeowners to properly maintain their landscaping may be impacted by watering restrictions. Additionally, associations are likely to see increased architectural review applications from homeowners desiring to install more water friendly landscape designs.
This article outlines some relevant issues for an association’s board of directors and design review committee to consider this spring and summer while water shortages and restrictions continue to persist.
Enforcement Issues
Can an association require homeowners to continue to maintain their landscaping during periods in which water restrictions are in place? The short answer is “yes” but the association will also need to act reasonably in light of applicable restrictions.
Specifically, the Colorado Common Interest Ownership Act provides that:
- An association may not levy fines against a homeowner for failure to adequately water their landscaping when water restrictions or guidelines from the local water district or similar entity are in place and the homeowner is watering in compliance with such restrictions or guidelines; and
- The association may require proof from the homeowner that the homeowner is watering the landscaping in a manner that is consistent with the maximum watering permitted by the restrictions or guidelines then in effect.
What this means in practice is that even during times of watering restrictions, homeowners are still required to maintain their landscaping and must water to the extent they are permitted by the applicable restrictions. Homeowners cannot simply neglect their landscaping, stop watering, and allow the landscaping to die. However, the association must also be reasonable and understand that during times of watering restrictions lawns and landscaping may not be as lush and green as in other seasons when watering restrictions are not in place.
Homeowner Xeriscaping
For conservation purposes, Colorado law generally requires associations to allow homeowners to install xeriscaping on their property. For single family detached communities’ new laws took effect in 2023 expanding homeowner rights concerning xeriscaping. Specifically, those changes:
- Expanded a homeowner’s right to install xeriscaping on property the homeowner is responsible for maintaining, regardless of ownership, including limited common elements, right-of-ways, and tree lawns;
- Required associations to adopt and post on the community website three pre-approved water-wise garden designs that homeowners may install; and
- Placed restrictions on an association’s ability to adopt rules regulating xeriscaping such as: (i) prohibiting associations from requiring the use of hardscape on more than 20% of the homeowner’s landscaped area; (ii) requiring associations to provide landscape options consisting of at least 80% drought-tolerant plantings; and (iii) requiring associations to allow homeowners to install artificial turf in their backyards. On a related note, associations also cannot require any amount of traditional turf grass (think Kentucky Bluegrass) to be included as a part of the homeowner’s landscape design.
Given existing drought conditions, the association’s board of directors and design review committee should ensure that they are well versed in current water restrictions affecting the community and the impact of those restrictions on the Association’s ability to enforce rules and covenants. As warmer weather approaches, it would be prudent to review the community’s existing design guidelines, rules and policies to confirm that they are up to date, comply with current law, contain adequate aesthetic guidelines such as those concerning artificial turf, and appropriately address homeowner xeriscape options.
If your association would like your architectural design guidelines or policies reviewed, please contact one of our attorneys at 303.432.9999 or [email protected].