Florida Friendly Landscaping ™in Community Associations

Legally SpeakingJuly 30, 2019

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Pre-2009 Statute

FS 720.3075(4)

Homeowners' association documents, includingdeclarations of covenants, articles ofincorporation, or bylaws, entered after October1, 2001, may not prohibit any property ownerfrom implementing Xeriscape or Florida-friendlylandscape, as defined in s. 373.185(1), on his orher land.

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2009 StatuteFS 720.3075(4)

(a) The Legislature finds that the use of Florida-friendlylandscaping and other water use and pollution preventionmeasures to conserve or protect the state’s water resourcesserves a compelling public interest and that the participation ofhomeowners’ associations and local governments is essentialto the state’s efforts in water conservation and water qualityprotection and restoration.

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This means this statute was passed as a matter of public policy and is applied retroactively to all Declarations

FS 720.3075(4)

(b) Homeowners’ association documents, includingdeclarations of covenants, articles of incorporation, or bylaws,may not prohibit or be enforced so as to prohibit any propertyowner from implementing Florida-friendly landscaping, asdefined in s. 373.185, on his or her land or create anyrequirement or limitation in conflict with any provision of part IIof chapter 373 or a water shortage order, other order,consumptive use permit, or rule adopted or issued pursuant topart II of chapter 373.

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WARNING: Do not get creative with this

FS 373.185

(1)(b) “Florida-friendly landscaping” means quality landscapes thatconserve water, protect the environment, are adaptable to local conditions,and are DROUGHT TOLERANT. The principles of such landscaping includeplanting the right plant in the right place, efficient watering, appropriatefertilization, mulching, attraction of wildlife, responsible management of yardpests, recycling yard waste, reduction of stormwater runoff, and waterfrontprotection. Additional components include practices such as landscapeplanning and design, soil analysis, the appropriate use of solid wastecompost, minimizing the use of irrigation, and proper maintenance.

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FS 373.185

(3)(b) A deed restriction or covenant may not prohibit or be enforced so asto prohibit any property owner from implementing Florida-friendlylandscaping on his or her land or create any requirement or limitation inconflict with any provision of part II of this chapter or a water shortageorder, other order, consumptive use permit, or rule adopted or issuedpursuant to part II of this chapter.

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This is what happens when you get creative with the statute

Sable Ridge Homeowners Ass’n, Inc. v Bruno, Pasco County Case No. 2010-CC-000126:

“As to Count II, in which the Brunos seek declaratoryrelief regarding the implementation of a Floridafriendly landscape in their development. Chapter373.185, Florida Statutes, is clear and unambiguous.It clearly prohibits a deed restriction or covenant toprohibit a property owner from implementing aFlorida friendly landscape.” – Judge William C.Sestak

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City and County OrdinancesCounties and some cities have begun adopting ordinances incorporating theFFL statutes:

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Counties Cities

Alachua Ft. Lauderdale

Hernando New Port Richey

St. John’s Hallandale Beach

Broward Cape Coral

Palm Beach Cocoa

Miami-Dade Boca Raton

Seminole Winter Park

Collier Orlando

Lake Marco Island

Orange Town of Surfside

Citrus Jacksonville

Osceola Viera

These are just some of the counties and cities

WHAT DOES IT ALL MEAN

Homeowners association (HOA) covenants, restrictions andordinances may not prohibit Florida-Friendly Landscaping™practices.

Does not invalidate HOA architectural controlcommittees or landscaping committees. It does applyreasonable limits.

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Prohibits HOA mandates that require:

• Water-wasting practices such as overwatering of plantsor inappropriate site design.

• Inappropriate placement of plants such that regularirrigation is required to keep the plants healthy.

• Excessive or improper fertilization.

• Excessive use of pesticides.

• Violation of water management district water userestrictions.

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Forbids 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 suitable to the site (wrong plant, wrong place).

• Swales or rain gardens, waterfront buffers or other protective practices.

• Composting bins, rain barrels, etc.

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Does not prohibit reasonable limits on Florida-friendly landscaping, such as requirements to be well maintained, or limit 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.

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Not Florida Friendly

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The Confusion

• St. Augustinegrass, Zoysiagrass, Bermudagrass, Centipedegrass, and Bahaiagrass are all listed in the Florida Plant Selection Guide as grasses found in Florida

• HOA lawyers interpret this as these grasses are FFL and will grow anywhere

• HOA lawyers ignore the notations on the guide indicating the drought tolerance, disease tolerance, pest tolerance

• HOA lawyers ignore other publications indicating the need for more water, pesticides, herbicides and fertilizers to maintain most of the grasses

• HOA lawyers are still insisting on St. Augustinegrass with some allowing Zoysiagrass

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The Problem

• HOA lawyers are usually not horticulturalists or biology majors or even gardeners

• Litigation is expensive• Litigation is time-consuming• Litigation does nothing to foster goodwill among

HOA members and the Board of Directors, but it makes HOA lawyers money

• HOA lawyers want your HOA’s business so they are publishing articles stating the FFL statutes are “developing” or “vague and ambiguous,” hoping your HOA will hire them

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Additional Cases

New ruling from the Fifth District Court of Appeals in the case ofBendo v. Silver Woods Community Association:

The HOA could not force the owner to comply with theirdemands for landscaping.

In this case the Declarations did not have any provisionsrequiring approval for landscaping or requirements to use onlycertain types of grasses. The HOA was relying only on generallanguage requiring the HOAs permission. Court said it was toovague.

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Sorrentino v. River Run Condo. Ass’n925 So. 2d 1060; 2006 Fla. App.

• Case is about skylights, which are protected under FS 163

• Homeowners did not get association’s permission

• Court ruled the skylights were protected

• Court also ruled the homeowners should have gottenpermission, but since no damage was done the associationcould not seek to have them removed

• Court said if the association had doubts about the skylights itshould have investigated further before denying application

“…lawsuit was filed by the Association after it was put on notice that the devices hadbeen installed and were protected by section 163.04, and that under the terms of thestatute it could not arbitrarily refuse permission to install them.”

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Upcoming Cases

• Haille Plantation (Gainesville)

HOA hired a new management company whodecided it would go after homeowners with FFLdespite those owners having implemented FFL overten years ago. The HOA will have a problem withwaiver, estoppel and the statute of limitations. Maynever reach the issue of FFL, but this is somethingHOAs need to watch out for when hiring newmanagement companies.

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Educating the Legal Community

They Just Don’t Get It –

• Mindset that a plant designated as FFL for one region is FFL for the wholestate

• Mindset that if a plant or grass grows well on one lot in the community (oreven a portion of a lot) it’s good for every lot in the whole neighborhood

Sample plant lists and designs for four Florida Regions —North, North Central, South Central, and South:

• FFL Book Zone 8A-8B

• FFL Book Zone 9A

• FFL Book Zone 9B

• FFL Book Zone 10

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• Utility location and building easements • Areas of sun, shade, and part shade • Views from the house, street and the neighbors • Direction of water flow • Low areas and high points • Soil characteristics (type) • Vegetation to keep • Exotic, invasive vegetation to remove

• Location of gutter/downspouts • Location of irrigation heads • House type (architecture) • Color and materials of house and hardscape • Window and door locations, height of windows • Depth of building overhangs • Circulation routes • Maintenance problems (inaccessible areas, bare spots, erosion, etc.)

NEED TO LOOK AT THE FACTORS AND UNDERSTAND THE FACTORS

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fyn.ifas.ufl.edu/professionals/services.htm

ADOPT Florida-Friendly Landscaping Model Covenants, Conditions and Restrictions for New and Existing

Community Associations.

SOLUTION TIP #1

http://fyn.ifas.ufl.edu/community_association_kit.htm

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SOLUTION: TIP #2

Educate your homeowners, the managers

and the board of directors

Litigation is expensive, so be proactive and implement policies and procedures for avoiding litigation

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