Xeriscape: Rocks, Wood Chips, and Cacti? Absolutely Not.

Let's face it. Colorado has a drier climate than, say, Florida. We live in a semiarid state and throughout history it has seen its share of droughts. Legislators certainly had this in mind when they passed S.B. 100 which, in part, stifles the ability of associations to prohibit or limit Xeriscape.

But what is Xeriscape exactly? The new statute describes Xeriscape as follows:

Xeriscape means the application of the principles of Landscape planning and design, soil analysis and improvement, appropriate plant selection, limitation of turf area, use of mulches, irrigation efficiency, and appropriate maintenance that results in water use efficiency and water-saving practices.

What is clear in this definition is that Xeriscape does not equal a couple truckloads of rock and wood chips dumped in a heap on the front yard of a property. Xeriscaping seems to be more of a method than a style, but it can be aesthetically pleasing, as well. If you have your doubts, just visit the Denver Botanic Gardens. Or check out examples of Xeriscaping at either the Denver Water website or the Colorado Water Wise website.

While we can be assured that Xeriscape is often aesthetically pleasing, S.B. 100 has still left associations in the lurch by seemingly not allowing much of an opportunity to regulate Xeriscaping on properties. The Act states that any section of a restrictive covenant that prohibits or limits Xeriscape shall be unenforceable. The Act defines "restrictive covenant" as:

Any covenant, restriction, bylaw, executive board policy or practice, or condition applicable to real property for the purpose of controlling land use, but does not include any covenant, restriction, or condition imposed on such real property by any governmental entity.

In addition, the Act defines an Executive Board Policy or Practice as follows:

Any additional procedural step or burden, financial or otherwise, placed on a unit owner who seeks approval for a landscaping change by the executive board of a unit owners' association, as defined in section 38-33.3-103, C.R.S., and not included in the existing declaration or bylaws of the association.

The Act further specifies that, without limitation, the following are all considered to be an Executive Board Policy or Practice:

1. An architect's stamp;
2. Preapproval by an architect or landscape architect retained by the executive board;
3. An analysis of water usage under the proposed new landscape plan or a history of water usage under the unit owner's existing landscape plan; and
4. The adoption of a landscape change fee.

I set forth all these definitions not to bore you, but rather to make a point. Remember the definition of Xeriscape? Xeriscape is not defined by how it looks--it is defined by how it works. So imagine that Joe Homeowner has Xeriscape installed on his property and the association, though it has no problem with Xeriscape, does not approve of the particular layout of Joe's Xeriscape due to its aesthetic quality. How can the Board, as lay people who we assume are not familiar with the ways Xeriscape works in various terrains, tell Joe that he has not installed proper landscaping without limiting his Xeriscape in violation of the Act? Joe's property might not look as nice as some other Xeriscaped properties, but that could be due to the particular nature of the soil and land on Joe's property. It would seem that the Board may have to hire an expert--perhaps from Denver Water--to examine the property to determine whether it is, in fact, Xeriscape. And if it is Xeriscape, and the land is being used to meet the definition of Xeriscaping, it is possible that the property will have to stay as is.

May the association have an expert review the plan? May the association put the cost for this expert back on the homeowners? Again, it does not seem as though the Board will be equipped to determine whether the proposed plan is actually Xeriscape. Unfortunately, the statute is not clear on what the association may do. It specifically includes items like preapproval by an architect or landscape architect retained by the executive board and the adoption of a landscape change fee as Executive Board Policies or Practices, which means that any use of an expert or a fee must not limit the ability of a homeowner to Xeriscape his or her property. Exactly what "limit" means may have to be explored in more detail by the courts.