Legislative Update - What is Xeriscape?
LEGISLATIVE UPDATE
 
    The 2006 Legislature passed several bills affecting community associations. However, the most significant changes were contained in House Bill 391 which was vetoed by Governor Bush on June 27, 2006. The reasons for his veto, and a review of the bills which did become law, will be the subject of our next issue of The Association E-Lawyer.
 
WHAT IS XERISCAPE?
 
    Xeriscape (pronounced zera-scape) derives from the Greek word 'Xeros' meaning dry. Due to the Florida droughts over the past few years, there is great concern as to what our water supply will be like in 10 to 20 years. Water has become a precious commodity that must be conserved. In 2001, in response to the growing concern over Florida’s water supply, the legislature created §720.3075(4), Florida Statutes, directed specifically to Homeowners’ Associations. This law states:
(4)  'Homeowners’ association documents, including declarations of covenants, articles of incorporation or bylaws, entered after October 1, 2001, may not prohibit any property owners from implementing Xeriscape or Florida friendly landscape, as defined in s 373.185(1), on his or her land.'
    §373.185, Florida Statutes, defines Xeriscape or Florida friendly landscape as follows:
'quality landscapes that conserve water and protect the environment and are adaptable to local conditions and which are drought tolerant. The principles of Xeriscape include planning and design, appropriate choices of plants, soil analysis which may include the use of solid waste compost, efficient irrigation, practical use of turf, appropriate uses of mulches and proper maintenance.'
    The first response to such a law is the fear that now homeowners can fill their front yard with gravel and cacti. THIS IS NOT XERISCAPE. In fact, one article available from the Georgia Water Wise Council does not recommend gravel, marble chips or volcanic rock because they absorb and re-radiate heat and are unnatural in appearance.
 
    Xeriscape, instead, is a package of 7 common sense steps or principles. These principles are listed in Florida’s definition of Xeriscape and include:
 
1. Plan and Design
2. Appropriate Plant Selection
3. Soil Analysis
4. Practical Turf Areas
5. Efficient Irrigation
6. Use of Mulches
7. Appropriate Maintenance
 
    1) Plan and Design
 
    The plan and design includes, but is not limited to, incorporating shade into the design and establishing water zones. Shade keeps the landscape cooler and reduces water loss. The landscape should be divided into three water-use zones: high (regular watering), moderate (occasional watering) and low (natural rainfall) to reduce overall water use.
 
    2) Appropriate Plant Selection
 
    Appropriate plant selection means choosing plants that are not only compatible with the design, but also compatible with Florida’s environment. Placement of the plants is also extremely important. For example, plants requiring more water should be placed together and in areas that stay moist, and plants that are more drought tolerant should be placed together in areas that naturally stay drier.
 
    3) Soil Analysis
 
    The soil should be tested to determine if the soil structure and drainage needs to be improved (such as sand in Florida). The goal in soil analysis is to create an ideal soil environment for the expanding root system.
   
    4) Practical Turf Areas
 
    Turf or grass is beneficial to the environment because it reduces runoff and erosion while recharging the ground. It also absorbs dust and other air pollutants and produces oxygen. However, grass is a big user of water so it is generally recommended that it be limited to areas where children and pets play. Florida typically has two types of grass, Bahia and St. Augustine. While Xeriscaped yards can and often do include St. Augustine grass, the Program Coordinator for Florida Yard and Neighborhoods from the University of Florida Institute of Food and Agricultural Sciences recommends Bahia over St. Augustine because it is more drought resistant.
 
    5) Efficient Irrigation
 
    Efficient irrigation includes such things as having a sprinkler system that can water plants in zones; thereby plants with different watering needs can be irrigated separately. A micro-irrigation system is highly recommended because this system applies water directly and slowly to the root, which minimizes evaporation of the water and run-off.

    All homeowners should be aware of the state laws, local ordinances and regulatory agencies that govern water usage. Florida is divided into five Water Management Districts. The St. Johns River Water Management District (SJRWMD) covers central and east Florida from Vero Beach to Jacksonville. The Southwest Florida Water Management District (SWFWMD) covers 16 counties in central and west Florida. The South Florida Water Management District (SFWMD) covers all of South Florida but includes portions of Orange, Osceola and Polk counties. These agencies have considerable power with regard to water systems and usage.

    Currently, the SJRWMD and the SWFWMD limit lawn and landscape watering to just two days per week and prohibit watering between the hours of 10:00 am and 4:00 pm. There are several exceptions to these restrictions including, but not limited to: watering new lawn and plant materials, irrigating with reclaimed water, and using low volume or micro-irrigation systems. Keep in mind that many local governments have more restrictive regulations, such as Tampa and unincorporated Hillsborough County where irrigating is currently limited to just ONE day per week. These regulations change frequently depending on the season and current rainfall totals. The SFWMD only enacts its water shortage restrictions when a drought has been declared, but most areas of the District are restricted by county or municipal ordinances. Further, Florida law requires that newly installed irrigation systems include a rain sensor that will override the regular sprinkle cycle when adequate rainfall has occurred.

    6) Use of Mulches
 
    Mulching is considered one of the most beneficial landscape practices because it prevents evaporative water loss and reduces the need for supplemental irrigation. The best mulches for Xeriscape are pine straw, pine-bark, mini-nuggets, and shredded hardwood mulch or chips.
 
    7) Appropriate Maintenance
 
    A properly Xeriscaped lawn should require less maintenance, but this does not mean no maintenance. The Association can still enforce its deed restrictions, rules and regulations that pertain to lawn maintenance, except where doing so would require an owner to violate state laws or local or district ordinances.
 
    Conclusion:
 
    What does all this mean for the Association? It means that Xeriscaping should not be feared. Xeriscaped lawns can be lush and beautiful and are not a desert type landscape. It also means that Associations cannot prohibit homeowners from implementing a Xeriscape plan that includes all seven (7) steps listed above, unless the prohibition was in the governing documents prior to October 1, 2001.
 
    For additional information regarding Xeriscape, please visit the website for the St. Johns River Water Management District at http://sjr.state.fl.us , the Southwest Florida Water Management District at www.swfwmd.state.fl.us , or the South Florida Water Management District at www.sfwmd.gov . Many of these agencies are happy to come out to communities and give presentations regarding proper irrigation and water conservation.
 
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne, Tampa and Palm Coast, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition was prepared by Elizabeth A. Lanham-Patrie, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice. The opinions expressed herein are as of the date hereof, and this law firm undertakes no obligation to advise the Association of subsequent changes in the law.
©2006 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached Toll Free at 1-800-395-6235 or locally at 407-660-1040.
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