Goodbye (Ornamental) Grass

Handling turf conversions to drought tolerant landscapes.

By John Baumgardner, Esq.

Despite this year’s drumbeat of storms, California, and the Western United States, have been experiencing a “megadrought” that stretches back to 2000. Although the replenishing of reservoirs and historic snowpacks is a welcome sight, recent above-average rain years have been followed by historic dry periods. This atmospheric whiplash between wet and dry is expected to continue into the near future. The ongoing and predicted future scarcity of useable water has led the California Legislature, State Water Resources Control Board, and local water districts to implement new rules regarding residential landscaping to conserve water usage.

On May 24, 2022, the State Water Resources Control Board adopted an emergency water conservation regulation in response to the current drought that prohibited the watering of non-functional, ornamental grass. Although this regulation did not apply to residential properties, the State Water Resources Control Board explicitly informed homeowners associations that this new regulation applied to any non-functional, ornamental grass in common areas.

Local water districts also passed extensive regulations on watering. For example, the City of Sacramento passed a watering ordinance that limited landscape watering with sprinklers to two days a week between March 1 through October 31. The City of Sacramento’s ordinance excluded, among other things, watering by drip irrigation, watering with a hose and spray nozzle, and watering of potted plants. Similar water restrictions were implemented by other water districts including the City of San Diego, the Los Angeles Department of Water and Power, and the Santa Clara Valley Water District. Other water districts, including the San Francisco Public Utilities Commission, implemented specific percentages of system-wide water reductions without limiting the types of water usage.

How Does This Affect Homeowners Associations?

Outside of landscaping on individual lots owned by the homeowners as their separate interest, many homeowners associations have significant common area grass that would be considered non-functional under the state’s definition. Non-functional, ornamental grass includes “grass [not] regularly used for recreation or community activities.” Mowable grasses in medians, along parkways, and other narrow strips of grass would likely fall under the state’s definitions. Additionally, even non-ornamental grass areas may continue to be subjected to previously imposed water restrictions and/or to more significant future restrictions.

Associations must consider their obligations for maintaining common area landscaping under these new regulations and ordinances as well as their governing documents. Pursuant to Civil Code §4775, an “association is responsible for repairing, replacing, and maintaining the common area.” Governing documents may also increase these obligations by requiring an association to keep the common area in “a first class condition.”

(See Sands v. Walnut Gardens Condominium Assn. Inc. (2019) 35 Cal.App.5th 174.) Even though an association may be following the required water regulations, homeowners may be less accepting of dead grass than the state.

Replacement Options

In light of these obligations, an association should investigate potential long-term solutions as well as the costs and benefits of its current landscaping. First, an association should evaluate how the community uses its common area landscaping (i.e. recreation, community events, or merely ornamental). This will assist the association in identifying potential replacement options, landscape design, and membership outreach regarding the changes.

If the grass is merely ornamental, it will be subjected to the strictest restrictions imposed by the state and local water districts. For these ornamental grass areas, an association may be eligible for grants to replace the existing grass.

The City of Sacramento offers turf conversion rebates to homeowners associations up to $50,000 at $1.50 per square foot. In order to qualify, the converted area must contain at least 60% plant coverage of drought tolerant groundcovers, shrubs, and trees. Similarly, the Los Angeles Department of Water and Power will provide a rebate of $3 - $5 per square foot for turf replaced with “California Friendly plants,” mulch, rain capture features, and drip irrigation.

If an association’s grass is used mainly for recreation, a drought tolerant landscape with significant plant coverage will likely be incompatible with the current usage. Although these rebates can help offset the costs of removing ornamental turf, it is important to note that most of the turf conversion rebates offered do not allow for the installation of artificial turf. However, there may be additional benefits and cost savings associated with artificial turf including reduced water bills, potential reduction of landscaping costs, and a consistent appearance year-round.

Funding Options

An association should also identify a funding plan for any landscape conversion before executing a contract. Many landscaped areas within an association are common area components that should be included in the reserve budget. If the landscaping project can be covered by the association’s reserves, no vote of the membership is required unless one is specified by the governing documents. Importantly, Civil Code §5510 provides that reserve funds may only be expended for maintenance and repairs of components that the association is obligated to maintain and repair and for which the reserve fund was established. Therefore, you should consult with legal counsel prior to using such funds for a new landscaping design/project that may include capital improvements. If the project costs exceed the reserves and are in excess of 5% of the association’s annual budgeted gross expenses, then a membership vote would be required to pass a special assessment to cover the landscape project costs.

Regardless of whether a membership vote is required, it is important to educate the membership about the project and potential benefits and cost savings going forward. Identifying these benefits will help to assuage community concerns, allow for membership input, and reduce potential conflict after the conversion has already been implemented. Associations should also rely upon their trusted vendors (landscapers, contractors, general counsel, CPA) to assist the board and membership throughout the entire process, including budgeting for ongoing maintenance and future replacement costs. Proactive planning can help associations meet the state’s goals of conserving water and introducing drought tolerant plants while keeping communities in a first-class condition.

John F. Baumgardner, Esq., is the primary attorney in Chapman & Intrieri, LLP’s Roseville, California office and has been with the firm since 2014. His practice focuses on representing homeowners associations in general counsel matters, construction defect disputes, general civil litigation, and revision of governing documents.