Q&A: The drought doesn’t mean your HOA has to look like a wasteland

Question: Our homeowner association near Santa Clarita has a problem that most of the other associations around us don’t seem to share. Our association board appears to go out of its way not to approve drought-resistant landscaping or makes it difficult for owners to pick out plants. Several dozen of our 500 or so homeowners have stopped watering because of the drought. Trees, shrubs and lawns are completely dead. Most of the dead grass has even disappeared and all that is left at many properties is just dirt.

When it gets windy the dust and dead grass go everywhere. If it should rain, mud flows down driveways and sidewalks. We look like a wasteland. It drags down the whole community. Our board says it can’t do anything because California state law says boards can’t require owners to water. What are we supposed to do?

Answer: Just because there’s a drought doesn’t mean your association has to look like a wasteland. There is a long history of regulating the outward appearance of homes and landscape in common interest developments. Recent drought laws change the rules but do not deprive an association of its power to reasonably regulate the landscape.

It’s true that a board cannot impose a fine or assessment against an owner for reducing or eliminating the watering of vegetation or lawns during any period for which the governor or local government has declared a drought emergency. But the new laws also encourage the planting of succulents and similar drought-resistant vegetation.

Civil Code Section 4735 says that governing documents, including architectural or landscaping guidelines or policies, are void and unenforceable if they prohibit the use of low water-using plants, artificial turf or synthetic surfaces that resemble grass, or if they restrict compliance with water-conservation laws or ordinances.

But the law does not prohibit an association from applying reasonable landscaping rules established in its governing documents, provided that those rules fully conform to the limitations noted in the law. In fact, if these association rules do not exist, the board has a duty to create guidelines and assist owners with finding responsible solutions for replacing their dead lawns. Certainly the association should be able to come up with a theme that’s in keeping with the image of the development as a whole.

The board also has to take action with regard to the dead vegetation and mud flows. In addition to obvious aesthetic issues, dead vegetation is a fire hazard and mud flows can cause a safety risk — both of which are a liability for the association. Once the association has knowledge of a potentially dangerous condition, it has a duty to act.

Turning a blind eye to a potentially uncomfortable situation — thinking that it will solve itself — is never a good solution. It is up to the board to provide leadership in this area, which is not difficult. It can lend support to owners by encouraging them to plant drought-tolerant plants as a long-term solution. Couple low-water plants with dry-bed gardens and the task of ridding the development of a dead grass wasteland becomes a creative endeavor bringing the community together.

If an association or its residents think they need more expertise, here are some resources:

>The Los Angeles Department of Public Works has a “smart gardening” website at https://dpw.lacounty.gov/epd/sg/plants.cfm.

> The Metropolitan Water District of Southern California offers water-wise gardening and other tips at https://www.bewaterwise.com.

>For something more intensive, consider a practical horticultural and gardening program aimed at homeowners. UCLA Extension offers a certificated program. For more details visit https://bit.ly/2fMO0O9.

One warning for boards. They need to know that titleholders who have installed water-efficient landscaping in response to a state of emergency can’t be required to remove it upon the conclusion of the state of emergency.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.