While it may seem too early to be considering summer issues at your association, now is the perfect time to reflect on what may be coming. This year with money still tight, high water bills may cause many within your community to try xeriscaping alternatives to help defray those costs. If you recall SB100 invalidated any restriction that either prohibited xeriscaping or required the primary or exclusive use of turf grass. This article recaps current regulations on xeriscaping so you can be prepared to handle such requests this season.

Limitations on Xeriscaping
Section 37-60-126(11), which addresses water conservation and is not a part of CCIOA, states that any Association covenant either prohibiting xeriscaping or requiring the primary or exclusive use of turf grass is declared unenforceable as it is against public policy. This provision, therefore, renders any such covenant void, regardless of how long the covenant has existed (this prohibition covers special districts as well).

In light of this law, associations must be careful when requests come in seeking permission to install xeriscaping. The statute does not give owners unfettered rights to do anything they want with their yards. While associations still have the right to demand submission of plans and prior approval before installation of landscaping, boards should be mindful they do not put extra demands on homeowners seeking to install xeriscaping. Associations can require residents to follow the Association’s architectural submission and approval requirements with respect to xeriscaping. However, the requirements for traditional landscapes and xeriscapes should be the same.

Xeriscaping is defined as “the application of principles of landscape planning and design, soil analysis and improvement, appropriate plant selection, limitation of turf area, use of mulches, irrigation efficiency, and appropriate maintenance that results in water use efficiency and water-saving practices.” Associations should educate owners on what xeriscaping requires and that it does not mean “let all your grass die and cover it with rock” or “let your weeds run rampant.” Associations should consider amending their covenants or adding rules or policies to contain clear requirements pertaining to landscape maintenance– whether xeriscaping or not.

Associations that take additional steps to create rules addressing xeriscaping will best be able to control and manage the xeriscaping installed, and be able to help their homeowners reduce water consumption.

Associations may require residents to adequately water all landscapes, including xeriscapes, unless water restrictions are in place. Upon the lifting or expiration of the water restrictions, associations must provide residents with a reasonable period of time to revive turf grass. If turf is not able to be revived, an association is permitted to require residents to replace the turf grass. In light of this requirement, associations should develop a policy defining a “reasonable and practical” time for owners to revive their grass after water restrictions are lifted. This policy should take into account local growing seasons and other practical restrictions.

Debra J. Oppenheimer
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