Monday, March 22, 2010

What landscaping plan must your HOA approve?

Last year the Florida Legislature passed SB 2080 which amended Section 373.185 of the Florida Statutes to encourage Floridians to plant “Florida Friendly” landscaping. Part of these changes impact homeowners’ associations and specifically any architectural control provisions regarding approved landscaping for the community.

Homeowners’ association covenants, restrictions, and ordinances may not prohibit Florida-Friendly Landscaping practices.

These changes do not invalidate HOA architectural control committees or landscaping committees but they do apply reasonable limits to those committees that did not previously exist.

The new law prohibits HOA landscaping restrictions that require:

• water-wasting practices such as overwatering of plants or inappropriate site design
• inappropriate placement of plants that require regular irrigation to keep the plants healthy
• excessive or improper fertilization
• excessive use of pesticides
• violation of South Florida Water Management District water use restrictions

The law now also forbids HOA prohibitions on:

-the reasonable and appropriate use of mulch
-plants attractive to wildlife such as butterfly or hummingbird gardens or other non-nuisance wildlife
-attractive, well suited plants in the landscape in favor of other plants that are less well suited to -the site (wrong plant, wrong place)
-swales or rain gardens, waterfront buffers or other protective practices
composting bins or rain barrels, etc.

This does not mean that your HOA cannot impose reasonable limits on Florida-friendly landscaping such as requirements that the landscaping be well maintained or be situated on a particular portion of the lot such as a backyard, side area or screened area where appropriate. It does mean that your HOA cannot deny landscaping plans that meet the definition of xeriscaping under this Statute. Please speak with your association attorney if you are presented with a landscaping plan from an owner and you are not sure if it falls within the protected category of Florida Friendly landscaping.

Model Florida-Friendly Covenants are included in the “Florida Friendly Guidance Models for Ordinances, Covenants, and Restrictions” publication available from the Department of Environmental Protection at http://www.dep.state.fl.us/water/nonpoint/pubs.htm.

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