Under Bill, Homeowners Associations Can’t Block Water Conservation

Water planners have warned that Texas cannot meet its future water needs unless it conserves more water.  The 2012 State Water Plan – the starting point for water negotiations during this legislative session – calls for about a third of the additional supplies needed by 2060 to be achieved through conservation or reuse.

That is a tall order.  To achieve it, Texas will have to cut the amount of water it uses for many purposes, including irrigation.  Like other Western states, Texas has historically accepted and even embraced cultural and aesthetic preferences for grassy lawns.  These preferences have their origins in leafier climes and are not particularly suited to places without much water.  And at a time when farmers are moving to develop drought-resistant crops and the state is distributing grants to fund the removal of water-depleting brush species, it seems only logical to take into account the demand that yards put on the state water system.

That said, many homes – especially newer suburban homes with large, thirsty lawns – are subject to homeowners’ association (HOA) rules that require yards be kept green or that prohibit the installation of drought-resistant landscaping.  The intent of these rules is understandable: to keep up property values and to ensure that a subdivision maintains its look and character.

By enforcing these rules, however, the quasi-governmental HOAs force homeowners to use large amounts of water – particularly at times when the state is at its driest and water is short all around.  A study last decade estimated that, nationally, 40 percent of new homes were under HOAS.  If the percentage in Texas is close to that, the impact of restrictive HOA rules would be considerable.

This week, State Senator Kirk Watson introduced S.B. 198, which would amend the Texas Property Code to provide that an HOA “may not include or enforce a provision in a dedicatory instrument that prohibits or restricts a property owner from … using drought-resistant landscaping or water-resistant turfing.”

Other states with water challenges have already adopted similar laws.  Florida led the way in the early 2000s by passing legislation under which “a deed restriction or covenant may not prohibit or be enforced so as to prohibit any property owner from implementing Florida-friendly landscaping on his or her land.”  Western states like California, Nevada and Colorado have since followed suit.

Texas already has a statute – Tex. Prop. Code § 202.007 – that allows HOAs to require the use of “water-conserving turf” but does not take the additional step of prohibiting HOAs from barring such use.  That is a regulatory gap S.B. 198 seeks to fill.

In fact, the bill goes further and introduces the term “drought-resistant landscaping” to compliment the term “water-conserving turf.”  Those terms are not defined in the bill or in the Property Code but presumably “drought-resistant landscaping” brings a breadth to the statute that “water-conserving turf” did not have.

The bill does have it its drawbacks, at least from a conservation perspective.  Section 202.007 expressly states that it does not “prohibit an [HOA] from regulating the installation or use of gravel, rocks or cacti.”  On one hand, this provision could be read merely to give an HOA the authority to review the exact design of “drought-resistant landscaping” with those features.  On the other hand, it could allow an HOA to regulate against many forms of “drought-resistant landscaping,” leaving homeowners with few if any practical options.

Similarly, neither Section 202.007 nor S.B. 198 define the terms “prohibit” or “restrict.”  The terms would no doubt encompass express prohibitions; it is less clear whether they would cover HOA rules that implicitly restrict.  In New Mexico, for instance, when homeowners who had xeriscaped their yards sued an HOA for continuing to charge them turf maintenance fees, the court found the charge constituted a restriction.

And definitions aside, HOAs could continue to fine homeowners who keep their grassy yards but do not water enough to prevent dead spots.  If Texas wanted to eliminate this disincentive to conserve, it could follow the lead of Colorado.  In its counterpart to Section 202.007, Colroado prohibits an HOA from taking action over dead landscaping “during a period of water use restrictions declared by the jurisdiction in which the common interest community is located.”  Once the drought has lifted, the homeowner must be given “a reasonable and practical opportunity … to reseed and revive turf grass before being required to replace it with new sod.”

More encouragingly, S.B. 198 would apply retroactively, ensuring that existing HOA rules fall within its scope.  But because of language in Section 202.007, two carveouts would remove a small but nontrivial number of homes from the ambit of S.B. 198.

The first establishes that the section does not restrict an HOA “located in a municipality in which another municipality with a population of more than one million is predominately located.”  Based on current Census estimates, HOAs in three cities – Grand Prairie, Irving and Garland – would qualify.

The second is for an HOA that “manages or regulates a development in which at least 4,000 acres of the property is subject to a covenant, condition, or restriction designating the property for commercial use, multifamily dwellings, or open space.”  This carveout would probably apply to large master-planned communities like the Woodlands and even to smaller mixed-use HOAs that the hit 4,000-acre threshold.

These drawbacks aside, S.B. 198 could liberate homeowners under restrictive HOAs to move toward drought-resistant landscaping and even participate in water-saving programs that cities like San Antonio and El Paso have offered.  And bringing HOAs around to the side of conservation could generate still more long-term savings since, unlike state and local governments, HOAs can push conservation aggressively without risking takings claims.

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