Reader Questions - Drought’s Over, Must Our Cactus Go Too?

Mr. Richardson,

After my HOA approved my drought-tolerant design, they asked me to add ‘more & bigger plants’ which violates Civil section 4735(e). Are the regulations still in place after May 2017? And if they are in effect, who do I get in touch with to help me enforce them?

Thank you,

I.D., Vista

 

Dear I.D.,

Associations cannot ban drought-tolerant landscaping, as Civil Code 4735 still is in force. The part of that statute which no longer applies is part (c), which bars associations from penalizing members who let their yards “go brown” during a Drought Emergency. Furthermore, under section 4735(e) associations may not force removal of artificial turf or other drought-resistant landscaping once it is in place.

The bottom line is that homeowners choosing xeriscapes are still protected by Civil 4735. The yard must of course be presentable and maintained, but it does not have to be a traditional lush lawn.

Thanks,
Kelly

Hello Mr. Richardson,

During the drought our front lawn went brown, like all others in our community. After the drought we had a difficult time resurrecting the green lawn in several spots. We were assessed several large monthly penalties, one after another, a couple of years back, the HOA stating the CC&Rs required a green lawn. The penalty is now [thousands of dollars]. I’m not sure what options we have to push the HOA to eliminate the penalty. Any assistance is appreciated.

Thank you,

M.T., Rocklin

 

Dear M.T.,

Until April 7, 2017, the day Governor Brown declared an end to the Drought Emergency, associations could not fine members for under watering yards, as such penalties violated Civil Code 4735(c). However, once the Drought Emergency ended, so did the ban on penalties for brown lawns. If your fines were imposed prior to that date, they were in error. If the discipline addressed events after April 7, 2017, the HOA may have a point.

Thanks for your question,
Kelly

 

Dear Mr. Richardson,

My community is implementing a drought tolerant landscape project. The project includes the removal of all turf to be replaced by drought tolerant plantings and removal of hundreds of mature healthy trees. Many have written letters of protest, but the board attorneys say the board can implement any landscaping plan without homeowner approval. Do they have the right to cut down a tree that is healthy and not a danger?

Sincerely,

K.V., Oceanside

 

Dear K.V.,

Technically, unless there is limiting language in the CC&Rs (there probably isn’t), the board can implement major changes in the common area landscaping so long as it is within its spending authority. However, this may be a classic example of a board and lawyer asking “can we?” but missing the question “should we?” Boards can never go wrong by consulting and informing their communities on major projects greatly affecting the members, even when they are not legally required to do so. At a town hall meeting, the board might discover they were completely misreading the association membership – or it is also possible you could discover that not that many neighbors are in opposition. Boards: Look for opportunities to show the community you are concerned about their input. The alternative could be upheaval in the community – but that will not bring the trees back.

Sincerely,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.