SB23-178: To Veg, or Not to Veg? That is the Question.
Filed Under Legislation
Posted June 1, 2023
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Now that SB23-178 has been signed into law and has become part of the Colorado Common Interest Ownership Act (effective August 9, 2023), the predominant question is “what does this mean for my community?”
To start, if your community is a condominium community or townhome community with shared walls, the new law does not change anything for your association. Although your community must still comply with the laws already in existence allowing owners to install xeriscaping on their properties, you will not be subject to the changes in the law discussed in this article.
On the other hand, if your community is a single-family detached form of housing, the new law applies to your association.
First and foremost, the new law expands owners’ rights to install xeriscaping on property the owner is responsible to maintain, including limited common elements, right-of-ways, and tree lawns. Associations, however, may prohibit xeriscaping on property that is maintained by the association (regardless of whether such property is owned by the owner). The determining factor as to whether an owner may xeriscape property is whether the owner is responsible for the maintenance of said property and not necessarily ownership.
Additionally, associations must allow owners to plant vegetable gardens in the front-yards, side-yards, and backyards of their homes. Associations must also adopt three pre-approved garden designs, (pulled from the Colorado State University’s downloadable designs, from a municipality, or from the website of another entity creating such designs). The preapproved designs may be used by owners without going through the association’s architectural approval process.
The three pre-approved plans must be posted on the association’s website so that owners can readily access them. Although the statute does not provide actual URL’s where the garden designs may be found, we have included links to two sources that appear to contain such designs. However, because the legislation is not entirely clear on this issue, we recommend associations conduct further research on this topic.
Additionally, the new law creates more restrictions affecting an association’s ability to adopt rules governing installation of xeriscaping, which include the following:
• Associations cannot require use of hardscape on more than 20% of the landscaping;
• Associations must provide an option consisting of at least 80% drought-tolerant plantings; and
• Associations must continue to allow artificial turf in backyards (this was already in the statute).
So, what does all of this mean for you? If you are a single-family detached community, and you currently have a xeriscaping policy, the policy will need to be rewritten to comply with the new law.
If you are a single-family detached community that does not currently have a xeriscaping policy, you are not required to adopt one, but you are still required to post three preapproved garden plans on your website. As such, you are better off adopting a policy addressing this component; otherwise, the association will not have control over xeriscaping in the community.
