Two owners were debating whether Florida’s xeriscaping law applied to their association. One owner believed that since their HOA’s declaration was recorded prior to the effective date of the Xeriscape legislation, it did not apply to his association. In this instance, that owner was wrong, and this article will explain why.
As we experienced this season’s drought earlier this year, all one needed to do is canoe along the Loxahatchee River (or look out the car window in some places), to see its unusually shallow depth, as roots once covered with water now lay bare. Lake Okeechobee is so low that it can no longer spill into the canals that feed some of our local reservoirs. Xeriscaping’s goals are to conserve water, protect the environment and still create a visually appealing yard. Albeit, beauty is in the eyes of the beholder.
The term “Xeriscape” originated in Denver, Co., during a drought in the early 1980s. In our great state, we refer to this as “Florida-friendly landscaping” as governed by Chapter 373, Florida Statutes. Florida-friendly landscaping is defined in Section 373.185, Florida Statutes, to mean:
“quality landscapes that conserve water, protect the environment, are adaptable to local conditions, and are drought tolerant. The principles of such landscaping include planting the right plant in the right place, efficient watering, appropriate fertilization, mulching, attraction of wildlife, responsible management of yard pests, recycling yard waste, reduction of stormwater runoff, and waterfront protection. Additional components include practices such as landscape planning and design, soil analysis, the appropriate use of solid waste compost, minimizing the use of irrigation, and proper maintenance.”
As applied to all residential community associations, the law also provides that a “deed restriction or covenant may not prohibit or be enforced to prohibit any property owner from implementing Florida-friendly landscaping on his or her land…” Even local governments cannot interfere. Local government ordinances cannot prohibit, or be enforced to prohibit any property owner from implementing Florida-friendly landscaping on their land.
The reason why the homeowner above was incorrect is because of the text in the statute that makes the law retroactive and the application of what is referred to as “police powers.” The law provides that conserving and protecting the state’s water resources is a “compelling public interest” and “that the participation of homeowners’ associations and local governments is essential to the state’s efforts in water conservation and water quality protection and restoration.” When government relies on its “police powers” (a/k/a to protect the health, safety, and welfare of our citizens), then the law in question applies without regard to the otherwise necessary “impairment of existing contract” analysis. (Remember, The Grand Condominium v. Cohn from earlier this year?) The competing interests of an association’s well-drafted architectural guidelines which provide for Florida friendly landscaping alternatives – as contrasted against an owners’ request to plant a beachfront cactus garden – should prove interesting.
On a completely different note, every now and then a case comes along too interesting not to share. As I was catching up on some reading this past weekend, I came across this gem from the Florida Division of Arbitration. In “Domaine Delray Condominium Association v. Koylan,” a 2010 decision, the arbitrator held that the unit owner and his son must stop the following activities: i) littering on the common elements, ii) screaming in their unit, iii) yelling at board members, iv) allowing transients from staying in the unit, v) appearing nude in the common elements, vi) digging up sod on the common elements, vii) using the pool to wash their pots and pans, viii) leaving the association water running, ix) to cease maintaining unsanitary conditions in their unit, x) covering the windows with prohibited materials, xi) creating disturbances that required police and fire department to visit the condominium. Events like this remind me how lucky most of us are, and how much I enjoy living in my quiet HOA.