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Published in the CAI-CIC Channels of Communication Second Quarter 2014 Magazine

By Roy Schneider, Esq.

California’s three-year dry spell is taking a toll on the economy and environment.  Last year was the driest ever in California, since record-keeping began in 1895.  According to the California Farm Water Coalition, the lack of water needed to produce everything from milk and beef to wine and avocados could result in lost revenues exceeding $5 billion in 2014 alone. With such a limited supply of water, where is this precious resource going?  While agriculture certainly accounts for a significant percentage of water use in our state, residential outdoor landscaping – watering gardens and lawns – actually accounts for 35 percent of all urban water use, according to the State Department of Water Resources.

In light of our drought conditions, many homeowners associations are finding themselves between a rock and a hard place.  Homeowners associations are used to citing and fining homeowners for having dead lawns or landscaping that is not up to par.  We can all appreciate that one of a homeowners association’s primary responsibilities is to maintain the development’s pleasing aesthetics, thereby protecting property values.  However, many homeowners are desirous of acting in an environmentally conscious manner, and in an effort to conserve water, their grass may be looking a little less green.  Some cities are actually requiring homeowners to ration their water use, thus preventing regular watering of gardens and lawns.

Of course HOA’s should have the authority to make their homeowners keep their yards up to standards.  But what should those standards be in light of the worst drought in over 100 years?  Faced with these competing interests – HOA’s wanting to ensure beautiful yards, and homeowners wanting to conserve water – enter the California State Legislature.  Assemblywoman Lorena Gonzales of San Diego has introduced AB 2104, proposing to amend the Davis-Stirling Act to further accommodate water-efficient landscapes.

Current law provides, in Civil Code section 4735, that any provision in a common interest development’s “governing documents” that prohibits low water-using plants as a group, or restricts homeowner compliance with a local water-efficient landscape ordinance or water conservation measure, is void and unenforceable.

AB 2104 goes further, and adds architectural and landscaping guidelines and policies, as well as decisions by the HOA’s board of directors, within the definition of “governing documents” that are void if they prohibit water-efficient landscaping.  The bill also would void any policy that prohibits, or includes conditions that have the effect of prohibiting, the replacement of existing turf with low water-using plants.

The bill is sponsored by a trade group of attorneys called the Conference of California Bar Associations.  In seeking to change current law and invalidate HOA policies restricting low water-using plants, the attorneys stated, “these policies, rooted in aesthetics, discourage the wise use of a precious and increasingly scarce public resource for which there is increasing demand….The state must take appropriate steps to promote water efficiency to preserve a challenged water supply.”

It should be noted that this bill, as well as existing law, does not require HOA’s to permit artificial turf.  Artificial turf is not a “plant,” so, even if AB 2104 passes, HOA’s will still be permitted to prohibit artificial turf.  However, any HOA policies or architectural standards that require grass lawns or prohibit or even discourage water-efficient landscaping are problematic.  For example, HOA policies cannot prohibit xeriscaping, a common form of drought-tolerant landscaping, utilizing native plants, mulch and certain soils in place of grass or flowers.  If your HOA has a policy that requires approval for changes to landscaping, the approval process should be simple, and not overly burdensome or costly for a homeowner to obtain approval to replace his or her lawn with a drought-resistant landscape.

In light of our unprecedented drought condition, current law and pending AB 2104, now is a great time for HOA boards to revisit their landscaping policies and architectural guidelines to ensure such policies are in compliance with the law, and are designed to promote both beauty as well as water conservation.

Roy Schneider is a partner at Schneiders & Associates, L.L.P. where he advises and guides his association clients with respect to board meetings and membership, including notice requirements, minutes, Open Meeting Act, executive sessions and elections. He assists boards with negotiating and drafting contracts, interpreting existing agreements, and enforcing them when contractors fail to abide by their terms.  Roy is also an Adjunct Professor at the University of La Verne, Oxnard Campus where he teaches business law and business ethics.

About the Author
Theodore J. Schneider practices in the areas of business and corporate transactions, employment law counseling, municipal and public law, real estate and land use, and homeowner associations. Ted began his legal career in 2002 when he joined the Los Angeles office of Gibson, Dunn & Crutcher, L.L.P. before relocating to Ventura County to join his father in practice.