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RichardK9
(Florida)

Posts:2

08/10/2010 11:53 AM
I am implementing a Florida-Friendly landscape design in my front yard. In effect, I am replacing the sod from the street up to the front of my house with Florida Friendly plants. The landscape plan was designed by a certified horticulturist from a local nursery and the plan was submitted to the HOA Architectural Review Board as required by the CCR. I received a letter from the property mgmt company that states: "Your application for Architectural Change has been denied. Accordingly, you have not been given the approval to proceed with the following project: Florida Friendly Landscaping Your application has been denied as the Architectural Review Board is requesting further information. Per your Board of Directors, please submit an irrigation reduction plan and resubmit your ARB application with the information requested. Please resubmit the enclosed application with the required changes based on the ARC guidelines found in your Covenants and Restrictions." (1)First and foremost, there is NO WORDING in the CCR that requires a homeowner to submit an irrigation reduction plan for ANY landscape change - much less a Florida Friendly one. (2)Two, how much or how little water I use as a homeowner is none of the HOA's concern. It would be akin to requiring a electricity reduction plan when deciding whether to approve an application for the installation of solar panels. The assumption here is that I need to reduce my water consumption - an assumption that is incorrect based on an already low consumption level verified by the city's water conservation coordinator. (3)Three, to enforce the submittal of an irrigation reduction plan does not fall under the Florida Statute 720 which states that: The authority of an association or any architectural, construction improvement, or other such similar committee of an association to review and approve plans and specifications for the location, size, type, or appearance of any structure or other improvement on a parcel, or to enforce standards for the external appearance of any structure or improvement located on a parcel, 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. (4)And finally: 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. The bottom line is, in defiance of the HOA ARC I have begun and almost completed the entire landscaping project. I am planning to attend the next Board Meeting to air my objection to their denial based on what I've written above. In your opinion, am I within my rights and should the board capitulate on this matter? Richard

DonnaS
(Tennessee)

Posts:5671

08/10/2010 12:16 PM
Richard, I think that you have them in a place where they won't be seeing any daylight. It looks like you have done your homework. You have all of the parts of the Statutes regarding what they may not do. I bet that the ARC and Management company are not remembering the addition of #3035 in 2008 720;3035 "1) The authority of an association or any architectural, construction improvement, or other such similar committee of an association to review and approve plans and specifications for the location, size, type, or appearance of any structure or other improvement on a parcel, or to enforce standards for the external appearance of any structure or improvement located on a parcel, 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.

SureshD

Posts:0

08/10/2010 12:28 PM
I must be honest and reluctantly admit I would probably do the same thing you are doing as I feel my HOA does not have a clue SOMETIMES as to the limit of their authority. You seem to have [most of] your "ducks in a row". As I understand the 720 statutes (and might be wrong) newly added legislation says that IF the HOA has not set standards for FFL (Fla. friendly landscape) then they have little (no?) authority to limit what can be done. There may however be some local (city, county) rules that may come into play but hopefully your certified horticultural designer is aware of and included them. Not sure of their "irrigation reduction plan" tactic. A Google search provided no "hits" on that phrase so it does'nt seem to be something that is a REQUIRED part of the process unless it is in your HOA docs. The HOA authority in this case (if any) would seem to be limited to a lot/parcel appearance issue ONLY. Who knows how the BOD will react. You are supposed to get approval BEFORE starting but it is not going to effect your rights to FFL if you are correct in the statute interpretation. This may have them feeling at a loss of control so just be sure to have all the relevant documents with you and present them in a factual manner as opposed to adversarial (even though it is an adversarial process).

PeterB1
(Florida)

Posts:254

08/10/2010 1:03 PM
Richard, I think you are in the right... In fact if not in your approach. However, I will present an argument that a property manager might dream up. According to FL Statute 373.185(1)(b), "...“Florida-friendly landscape” means quality landscapes that conserve water...". Therefore, the manager says - I want to see that this landscape saves water. Prove it to me! I certainly don't agree, but a Board might easily (too easily) accept the statements from the property manager. Thanks for saving our water peter

DonnaS
(Tennessee)

Posts:5671

08/10/2010 1:47 PM
Richard, Your landscape architect should be able to give an estimate in the reduction of water useage by his installation of water saving landscape. Personally, I think that the ARC are just making you jump thru hoops but rather than prolong a battle with them, get a letter drafted from the landscaper and hope that this committee sees the light and gives you approval. Sometimes it is easier to give just a small inch that get entrenched for a long, costly battle. (I am a Master Gardener who specializes in water runoff control up here in Tn. I have the 1st yard in the entire State that was certified in the Water Quality Districts "Yards Done Right" program so I am totally in your court on this)

RichardK9
(Florida)

Posts:2

08/10/2010 2:04 PM
First, thank you Donna, Suresh, and Peter for weighing in. Peter, If indeed the property manager is thinking in those terms, I happen to agree with the sentiment. I do not agree however with the manner in which this, and a host of other issues have been handled by my HOA. So yes, I have an axe to grind and I've chosen this stage on which to do it. In short, the president of the HOA has seen fit to preside over most matters by shooting from the hip rather than under the guidance of the CCR and FLorida Statutes. Regarding the FF landscape design I submitted, it detailed every plant and its location in my yard. There's not a single plant - per my instructions to the horticulturist - that isn't drought tolerant, frost tolerant, and deer resistant (although the latter has nothing to do with FF). The majority of the plants will produce blooms so as to attract wildlife (except deer ) With regards to water consumption, I started planning for FF by first turning off my irrigation system almost a year ago. The idea was to see what sod (St. Augustine) would survive with just rainfall as a water source. Due to a combination of sun and shade exposure, and lot drainage, it soon became apparent that the sod in my front yard could not sustain itself without artificial irrigation. Thus my front yard became the site for FF. I cannot demonstrate less water consumption because I don't consume water now for outside irrigation - and haven't for almost a year. So the Board wanting proof that my landscape design will save water doesn't "hold water" from a practical as well as a legal standpoint. The "proof" they seek can simply be extracted from my choice of plants - which by their inherent characteristics, use far less water than St. Augustine grass. Finally, I grew up in the Caribbean where the only water source is that which is collected with roof gutters when it rains and fed into cisterns. I have always practiced water conservation and so I am a little perturbed by the assumption that I should be made to conserve even more.

LizC1
(Florida)

Posts:1

09/14/2010 5:44 PM
RichardK9, I experienced the same rejection letter as you did, but got my plan approved for tearing out my front yard--no grass--all FF plants after I pointed out Florida Statute 373.185 passed in 2009 that prohibits homeowner association covenants, restrictions and ordinances from prohibiting Florida-friendly landscaping practices. According to the Southwest Florida Water Management District, the law: Prohibits mandates that require: • Water-wasting practices such as overwatering of plants or inappropriate site design • Inappropriate placement of plants such that regular irrigation is required to keep the plants healthy • Excessive or improper fertilization • Excessive use of pesticides • Violation of Southwest Florida Water Management District water use restrictions. Prohibits prohibitions on: • 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 buggers or other protective practices • Composting bins or rain barrels, etc. The law does not prohibit reasonable limits on Florida-friendly landscaping such as to be well maintained or limiting particular elements of a Florida-friendly landscape – such as a butterfly garden, composting bin or rain barrel – to a backyard, side area or screened area, where feasible. My HOA required a certain percentage of my yard to be St. Augustine. That mandate is illegal under the 2009 statute. The HOA lawyer agreed with me and the HOA relented. My new (March 2010) FF yard is gorgeous!

DanielH1
(California)

Posts:481

09/15/2010 1:51 PM
Hopefully, the Board will decide not to fine and lien you. By executing your plan with the denial hanging over you, you've exposed yourself. You may win in the end but, if the Board fights you, it will certainly cause you time and trouble and possibly a good amount of money. Winning a lawsuit is often not free. You'd have been better off suing them first, quickly forcing them to approve your application and then putting in your landscaping. But, now, you've than opened yourself up so they can fine and lien you and moved the burden of proof from them ("prove that this denial is not a violation of the law") to yourself ("prove that you have the right to ignore the denial").

SureshD

Posts:0

09/15/2010 3:47 PM
Doubtful. In Florida you must go to [non-bonding] arbitration first. At that time the HOAs "eyes will be opened" and they will realize they cannot win and that THEY will pay all costs if moving forward and (nearly certainly) lose. Worst case... ~200 hundred dollars to arbitrate. There is Fla. case law for solar light tubes installed WITHOUT proir permission and similar conservation statutes prevailed. Yes he should have sought prior permission but it WILL NOT effect his rights under the statute(s).

SureshD

Posts:0

09/15/2010 4:27 PM
I wish to add that in the case law I mentioned above that the HO was forced to relocate the tubes in order to "get the HOA off their back" so they could move forward with a pending sale. The court found the HOA liable for ALL costs including litigation associated costs and the solar tube relocation. It is common to see an HOA "throw their weight around" while ignorant to the HOs rights (Fla. statutes) only to end up costing THEM dearly. The HO had moved prior to the litigation so it was of NO cost to them. Sweet!

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