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No, Your Crazy Homeowners Association Can't Ban Drought-Tolerant Landscaping

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Native and drought tolerant landscaping at a house in Silver Lake. (Photo by Jeremy Levine via the Creative Commons on Flickr)
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Few things bring out the crazies like a homeowners association, those wacky neighborhood "governing" bodies that love to dictate lawn length, paint colors and the contents of lengthy email listservs. In the past, we've covered how L.A. HOAs have tried to block bike lanes, coastal beach access, construction on the Target Husk, and even the Westside Subway Extension (the Beverly Hills Homeowners Association, various Malibu HOAs, the La Mirada Homeowners Association, and the Comstock Hills Homeowners Association, respectively).

Fun stuff all around, but now they've really crossed the line. In a Q&A column in the Sunday paper, the L.A. Times responded to a reader asking for advice on the environmentally-unfriendly antics of their local HOA:

Question: We live in Los Angeles and in an effort to conserve water we filled out an application asking our board for approval to remove our existing grass and plant a drought-resistant landscape. We received a letter back that shocked us. It said: “The board has denied your application for plantings in your front yard because our HOA is not a desert and succulents and cactus are not approved for primary front yard focal points. We do not want New Mexico, Arizona or Nevada desert landscape. The plan has to be ‘pretty.’ By way of example, we've included several different property addresses that have approved landscaping.”

According to the reader's letter, the approved landscapes of the HOA board in question "look like something out of a fantasy theme park complete with trellis walkways, garden gnomes, fake butterflies and dry water beds." There are lots of labor and water-intensive options, but nothing drought-resistant on the menu.

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For context, Los Angeles has made a major push over the past few years to encourage residents to trade their thirsty lawns for more drought-tolerant options. In 2009, the L.A. Department of Water and Power announced a rebate program where they would literally pay people to rip out their lawns and replace them with a more drought-friendly option. As of Summer 2015, about 2,600 L.A. residents and nearly 60 companies had taken the LADWP up on their offer, according to the L.A. Times. The switchover effort has grown to such a scale that a veritable industry of we'll-take-your-lawn-out-for-you landscapers has sprung up in the Southland. All this is a roundabout way of saying that sure, we live in a free country and it's your house and your lawn, but it's still pretty hard to make a blanket argument in 2016 Los Angeles against drought-tolerant landscaping.

Luckily, it looks like the law is on the letter writer's side: under Civil Code section 4735(a), a provision of governing documents or architectural guidelines is "void and unenforceable if it prohibits the use of low-water-using plants, including to replace existing turf." Score one for the planet!

Unfortunately, according to the column's co-writers (arbitrator/mediator Donie Vanitzian and business and intellectual property lawyer Zachary Levine), the frustrated homeowner will still have to follow proper wackadoodle HOA procedure if their governing board requires pre-approval for landscaping changes—but even if the effort is cumbersome, the homeowner ultimately can't be prevented from planting some form of drought-resistant landscaping. As the Times' legal eagles explain, although the HOA board doesn't have to approve those damn New Mexico/Arizona/Nevada-style succulents (quelle horreur!), "there are other drought-resistant plants available to you and the board cannot veto them all. To do so would be to render 4735(a) ineffective, which is beyond the powers of your board and your association."

Tellingly, this isn't even the first time Vanitzian has addressed drought-tolerant landscape-hating HOAs in her column. Last summer, another reader wrote in, asking for advice because their HOA was trying to fine them for letting their lawn go brown (this HOA thought drought-resistant vegetation was an affront to the neighborhood's "theme of luxury homes"). Turns out that same handy-dandy section of Civil Code section 4735(a) also applies to this situation, as Vanitzian explained:

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The law is clear: A homeowners association shall not impose a fine or assessment against an owner for reducing or eliminating watering vegetation or lawns during any period for which either the governor or local government has declared a local or state emergency because of drought.

In summation: no, your HOA can't prevent you from planting any and all drought-tolerant landscaping; no, your HOA can't fine you for not watering your lawn during a historic drought; yes, your HOA can probably still make your life miserable.