QUESTION: I know we are in a drought but what can we do when owners let their lawns die and weeds grow?
ANSWER: Normally, you would hold hearings and fine members. But with the current drought emergency, your options are limited.
Weeds. You still have the power to require the removal of dead plants and weeds. This is consistent with another statute, Civil Code § 4750(e), which allows an association to require the removal of dead plant material and weeds from personal gardens. In Discount Inn, Inc. v. City of Chicago (Sept. 2015; No. 14-3678, Seventh Circuit ), Circuit Judge Posner addressed weed restrictions and free speech defenses:
...high weeds can conceal illegal activities, obscure dangerous debris, harbor rodents, serve as a breeding ground for mosquitoes and West Nile Virus and contribute to allergies and breathing difficulties.... Weeds also tend to spread and in spreading kill plants that are valued for beauty, fragrance, nutritional value, etc.
...Unmanaged invasive plant species are largely synonymous with “weeds.” Weeds interfere with other plants and other horticultural and environmental goals by ”competing with the desired plants for the resources that a plant typically needs, namely, direct sunlight, soil nutrients, water, and (to a lesser extent) space for growth; providing hosts and vectors for plant pathogens, giving them greater opportunity to infect and degrade the quality of the desired plants; providing food or shelter for animal pests...; offering irritation to the skin or digestive tracts of people or animals, either physical irritation via thorns, prickles, or burs, or chemical irritation via natural poisons or irritants in the weed… ; causing root damage to engineering works such as drains, road surfaces, and foundations, blocking streams and rivulets.”
[Plaintiff argued that allowing weeds to grow on his lot was a free speech issue and protected by the Constitution--requiring the removal or weeds violated the free-speech clause of the First Amendment.] But the plaintiff’s claim that the free-speech clause insulates all weeds from public control is ridiculous. It’s not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or in- tends or aspires to exhibit them in museums or flower shows. Its weeds have no expressive dimension. The plaintiff just doesn’t want to be bothered with having to have them clipped.
...Allowing weeds to grow tall cannot, in and of itself, be regarded as creating works of art.
Taken to its logical extreme, the plaintiff’s defense of the weed would preclude any efforts by local governments to prevent unsightly or dangerous uses of private property. Homeowners would be free to strew garbage on their front lawn, graze sheep there, and broadcast Beethoven’s Fifth Symphony 24 hours a day through outdoor loudspeakers—all in the name of the First Amendment.
Dead Lawns. Boards cannot fine owners for reducing or eliminating the watering of lawns during any period for which the governor or local government has declared a drought emergency. (Civ. Code § 4735.)
Lawn Replacement. Can you force the removal of dead turf and require its replacement with different landscaping? There is no clear answer but probably not. Even when a lawn turns brown and looks dead, most will bounce back when watered. If an association were to order the removal of brown turf, a judge could deem it contrary to the spirit of the anti-fining statute and conclude the association was penalizing the person for conserving water.
Vendor Discounts. Medium and larger associations should consider having arrangements with their vendors to make available to the owners acceptable plant material at wholesale or marginally above. This eases the burden on those owners who want to remove turf and install drought tolerant landscaping. Vendors may be willing to do weekend presentations to members on the available materials that will enhance the owners property while meeting the new HOA guidelines and standards. Such programs may also be helpful to make owners switching to drought tolerant material more knowledgeable about how best to successfully install and maintain their new landscaping.
Recommendation: Associations should adopt standards that describe the types of low-water plants allowed, so as to preserve aesthetics in the community. In addition, boards can recommend permissible alternatives, such as hardscapes, wood chips, crushed rock, etc. As more people remove their lawns and install drought tolerant landscaping, members with dead lawns may be more inclined to join in.
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