HOAs should adopt Florida Friendly Landscaping Guidelines
There is a question as to whether HOAs are obligated to approve a plan for Xeriscaping or Florida Friendly Landscaping. Xeriscaping or Florida Friendly Landscaping are defined in more detail below, but their ultimate goal is to use native plants and landscaping techniques that minimize the need for excessive water consumption or pesticide application. Under the HOA statute, an association cannot prohibit a parcel owner from implementing a plan for Florida-friendly landscaping (“FFL"). However, such a plan is still subject to HOA approval, and the HOA can enact certain guidelines for an FFL plan. FFL guidelines should be published by the HOA. The HOA cannot unreasonably deny approval for an FFL plan, but an HOA can likely require an FFL plan meet reasonable aesthetic requirements. Under the statute, an HOA cannot prohibit a parcel owner from implementing Xeriscaping or “Florida-friendly landscaping." The operative part of the statute reads:
Homeowners’ association documents, including declarations of covenants, articles of incorporation, or bylaws, may not prohibit or be enforced so as to prohibit any property owner from implementing Florida-friendly landscaping, as defined in s. 373.185, on his or her land or create any requirement or limitation in conflict with any provision of part II of chapter 373 or a water shortage order, other order, consumptive use permit, or rule adopted or issued pursuant to part II of chapter 373. Fla. Stat. § 720.3075(4)(b) (emphasis added)
This statute was implemented in 2009 as a response to droughts in Florida that had strained the state’s water resources. In an effort to promote water conservation, the Florida legislature passed this law so that homeowners in associations could implement water-saving strategies in their landscaping. Landscaping that reduces water consumption, and is better suited to the environmental characteristics of the area, will likely be deemed to be “Florida-friendly landscaping" entitled to protection under the statute. The statutes provide a definition for “Florida-friendly landscaping:"
“Florida-friendly landscaping" means quality landscapes that conserve water, protect the environment, are adaptable to local conditions, and are drought tolerant. The principles of such 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 stormwater 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. Fla. Stat. § 373.185(1)(b)
The University of Florida, the Florida Department of Environmental Protection, Florida Yards and Neighborhoods, and the Southwest Florida Water Management District provide further guidance for Florida-friendly landscaping. The following web addresses provide some of their resources:
Since the FFL law is relatively new, there are no current appellate court cases that provide interpretive guidance. Some guidance it is found in the case law interpreting an analogous statute, Fla. Stat. § 163.04(2). That statute states that an association cannot prohibit the installation of solar panels, solar collectors, or clotheslines. The statute, and its case law suggests that an association may be able to impose some restrictions on the placement of these items, but it cannot interfere with their functionality or place unreasonable requirements on their installation. Id. See also Sorrentino v. River Run Condominium Ass'n, 925 So. 2d 1060 (Fla. 5th DCA 2006). If a court interprets the FFL statute in a similar way to how courts have interpreted the solar panel statute, an association cannot unreasonably deny a landscaping plan that conforms to FFL practices. However, an association can formulate reasonable guidelines for an FFL plan that would fit the landscaping and aesthetic standards for the community. Indeed, aesthetic concerns are part of the goals for Florida’s FFL program. See http://fyn.ifas.ufl.edu/materials/FYN\_Yard\_Recognition\_Checklist\_2010.pdf. Guidelines are also a good idea for the association since architectural and landscaping guidelines are required by the statute. The HOA statute provides that landscaping and architectural restrictions “shall be permitted only to the extent that the authority is specifically stated or reasonably inferred as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants." Fla. Stat. § 720.3035. Under this statute, a parcel owner can argue that the board or the architectural review committee cannot enforce standards if there are no published guidelines. By extension, if an HOA’s guidelines do not contemplate or allow an FFL plan, then the HOA’s absence of FFL guidelines opens the door to a parcel owner’s argument that the HOA cannot deny certain aspects of the plan. The parcel owner could argue that since Florida-friendly landscaping is allowed by the law, and since the HOA has no current FFL-compliant rules or guidelines to support a denial, any such denial falls outside of the permissible parameters of Fla. Stat. § 720.3035, which requires a denial be based upon predetermined and published guidelines. In developing guidelines and implementing a strategy to comply with the FFL statute, an association should consult with the publications previously mentioned, especially: “What to Consider for Florida-Friendly Landscaping Guidelines." available at http://fyn.ifas.ufl.edu/materials/ARB\_FFL\_consideration\_guidelines03\_23\_2011.pdf. In the absence of case law interpreting the FFL law, a judge may rely on some of the materials like this, and others circulated by the University of Florida, the Florida Environmental Protection Agency, Florida Yards and Neighborhoods, and the South Florida Water Management District. For support in writing FFL guidelines, or for specific FFL questions, the association can contact the local FYN Program office in their county, which is tasked with assisting people and organizations with the implementation of an FFL plan. Sometimes, the offices may have an individual who can speak to HOAs and other groups about Florida Friendly Landscaping. In the absence of FFL guidelines, many of the association’s current guidelines may still apply. Restrictions on the number of trees on the property for example, may be able to apply to an FFL plan. But the FFL law will likely require a balancing act between the aesthetic goals and a uniform landscaping design of the HOA on the one hand, and the environmental goals of (especially water conservation goals) of the FFL law on the other. To conclude, if a parcel owner requests an association’s approval of an FFL plan, it cannot unreasonably deny such a plan, and it cannot deny the plan because simply because it does not conform to the current landscaping requirements that may require more intensive water use to maintain. If an association has not implemented landscaping requirements that contemplate allowances for FFL plans, they should do so. In creating the guidelines, the association should consider obtaining outside help–from the materials cited in this memorandum, from the local county extension office, or from some FFL expert. Once an association has a set of guidelines, it will have to evaluate each FFL proposal so that it can harmonize aesthetic and environmental concerns.