Both Chapter 373, Florida Statutes, regarding Florida’s water resources, and Chapter 720, Florida Statutes, regarding homeowners’ associations, provide for the use of Florida-friendly landscaping in promoting the efficient and clean use of water resources. “Florida-friendly landscaping,” otherwise known as “xeriscaping,” means using low-maintenance plants and environmentally sustainable practices to save residents money and to protect Florida’s natural resources by creating quality landscapes that conserve water, protect the environment, are adaptable to local conditions, and are drought tolerant. The principles of Florida-friendly 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 storm water 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. But this does not entitle a homeowner to ignore their community’s architectural approval provisions.
Both Chapters 373 and 720, Florida Statutes, provide that a covenant cannot prohibit or be enforced so as to prohibit any owner from implementing Florida-friendly landscaping on their land or create any requirement or limitation in conflict with any water consumption provision, rule, or regulation. Occasionally, a homeowner may interpret this language to mean that their homeowners’ association cannot enforce the landscaping covenants set out in their community’s declaration. However, this is simply not the case.
Let’s get something straight, the Florida-friendly landscaping provisions of Chapters 373 and 720, Florida Statutes, do not prohibit a homeowners’ association from enforcing its architectural review and approval procedures as proscribed by its declaration of covenants, nor do they prohibit a community association from limiting or prohibiting the use of certain landscaping materials, including the use of turf alternatives, for example, rock lawns and wooden decks, in furtherance of its obligations to promote the ascetic quality and value of its community.
In fact, the Florida-Friendly Landscaping Model Covenants, Conditions and Restrictions for New and Existing Community Associations, prepared by the University of Florida, Department of Environmental Horticulture for the Florida-Friendly Landscaping Program, in conjunction with the Florida Department of Environmental Protection, proposes model covenants, conditions, and restrictions which require owners to obtain the prior written approval of the homeowners’ association prior to the installation of any landscaping, including Florida-friendly landscaping.
This being the case, in a homeowners’ association which requires that an owner obtain the approval of the homeowners’ association to make architectural changes to their lot, an owner who wishes to install landscaping, even Florida-friendly landscaping, on their lot must first obtain the approval of the homeowners’ association. Failing to get the approval of the homeowners’ association before installing the landscaping could lead to the removal of the unapproved landscaping, fines, common area use right suspensions, and individual assessments, causing unnecessary grief and expense to both the owner and the homeowners’ association.
While the Florida-friendly landscaping legislation came into being in 2009, these laws apply retroactively. 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.
Although the Florida-friendly landscaping laws have been effective for many years now, and have retroactive application, some homeowners’ associations have not yet adopted landscaping standards which take Florida-friendly landscaping principles into consideration. If your community has not done so, then the Board should consult its lawyer to further discuss incorporating Florida-friendly landscaping into your governing documents.