Q&A: California homeowners have the right to remove turf amid drought

Question: My homeowner association board in our common interest development underestimates the severity of California’s drought, and it fines and penalizes owners who comply with the state’s water restrictions.

We ripped out our water-guzzling lawn and a huge pine tree that sucked up hundreds of gallons of water and installed artificial green grass. We were immediately fined. Because we refuse to pay, the board has summoned us to a hearing. What do we do?

Answer: A hearing for the purpose you describe is bogus. Your board may choose to ignore California’s current crisis, but it cannot ignore the law.

With the recent passage of Assembly Bill 349, the California legislature recognizes that the state has the lowest snowpack ever recorded and that we are in the fourth year of a historic, prolonged and potentially devastating drought.

Many Californians are installing artificial turf in their single-family homes. Homeowners in common interest developments must be afforded a similar opportunity within appropriate design, aesthetic and drainage standards defined by their association.

Associations in common interest developments are barred from fining residents who stop watering their lawns during drought emergencies. Property owners who pursue water conservation by installing artificial grass should be encouraged, not sued or fined. If an association’s decisions are motivated by aesthetics, it makes more sense to replace browning plants with more drought- and California-appropriate landscaping.

Civil Code section 4735, part of the Assembly bill, states that any provision of the governing documents, architectural, landscaping guidelines or policies shall be void and unenforceable if it essentially prohibits the use of low-water-using plants as a group or as a replacement of existing turf or if it prohibits the use of artificial turf or any other synthetic surface that resembles grass.

The Legislature has recognized the right of an association to regulate aesthetics. But the conservation of water, especially during a severe drought, takes precedence over that right.

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

If your board members have been too preoccupied with their lush landscape to notice recent changes to the law, this hearing is your opportunity to educate them. If they will not listen to reason, show them the legislation.

The California Water Service maintains a database of helpful information and handouts. There is a call center to get clarification on regulations and report water wasters: (844) 726-8579.

If your board refuses to remove the illegal fines, you may be forced to pay under protest, then file a small claims action for reimbursement. If the fines continue, you may have to file a lawsuit seeking a court order that the penalties were imposed in violation of California law.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or [email protected].