First Regular Session
Seventy-fourth General Assembly
STATE OF COLORADO
INTRODUCED
LLS NO. 23-0801.01 Richard Sweetman x4333
SENATE BILL 23-178
Senate Committees House Committees
Local Government & Housing
A BILL FOR AN ACT
C
ONCERNING REMOVING BARRIERS TO WATER -WISE LANDSCAPING IN101
COMMON INTEREST COMMUNITIES .102
Bill Summary
(Note: This summary applies to this bill as introduced and does
not reflect any amendments that may be subsequently adopted. If this bill
passes third reading in the house of introduction, a bill summary that
applies to the reengrossed version of this bill will be available at
http://leg.colorado.gov
.)
Under current law, a unit owners' association (association) of a
common interest community may not prohibit the use of xeriscape,
nonvegetative turf grass, or drought-tolerant vegetative landscapes to
provide ground covering to property for which a unit owner is
responsible. There is, however, an exception authorizing an association
to adopt and enforce design or aesthetic guidelines or rules that apply to
SENATE SPONSORSHIP
Jaquez Lewis and Will, Marchman, Priola
HOUSE SPONSORSHIP
McCormick,
Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.
Capital letters or bold & italic numbers indicate new material to be added to existing law.
Dashes through the words or numbers indicate deletions from existing law. nonvegetative turf grass and drought-tolerant vegetative landscapes or to
regulate the type, number, and placement of drought-tolerant plantings
and hardscapes that may be installed on a unit owner's property, on a
limited common element, or on other property for which the unit owner
is responsible.
The bill states that an association's guidelines or rules must:
! Not prohibit the use of nonvegetative turf grass in the
backyard of a unit owner's property;
! Not unreasonably require the use of hardscape on more
than 20% of the landscaping area of a unit owner's
property;
! Allow a unit owner an option that consists of at least 80%
drought-tolerant plantings; and
! Not prohibit vegetable gardens in the front, back, or side
yard of a unit owner's property.
The bill also requires an association to permit the installation of at
least 3 garden designs that are preapproved by the association for
installation in front yards within the common interest community. To be
preapproved, a garden design must adhere to the principles of water-wise
landscaping and emphasize drought-tolerant and native plants.
The bill allows a unit owner who is affected by an association's
violation of the new requirements to bring a civil action to restrain further
violation and to recover damages in an amount equal to actual damages
plus $500, plus any other damages, costs, and reasonable attorney fees.
Be it enacted by the General Assembly of the State of Colorado:1
SECTION 1. In Colorado Revised Statutes, 38-33.3-106.5,2
amend (1)(i) as follows:3
38-33.3-106.5. Prohibitions contrary to public policy -4
patriotic, political, or religious expression - public rights-of-way - fire5
prevention - renewable energy generation devices - affordable6
housing - drought prevention measures - child care - definitions.7
(1) Notwithstanding any provision in the declaration, bylaws, or rules8
and regulations of the association to the contrary, an association shall not9
prohibit any of the following:10
(i) (I) (A)
The use of xeriscape, nonvegetative turf grass, or11
SB23-178-2- drought-tolerant vegetative OR NONVEGETATIVE landscapes to provide1
ground covering to property for which a unit owner is responsible,2
including a limited common element or property owned by the unit owner3
AND ANY RIGHT-OF-WAY OR TREE LAWN THAT IS THE UNIT OWNER 'S4
RESPONSIBILITY TO MAINTAIN. Associations may adopt and enforce design5
or aesthetic guidelines or rules that apply to nonvegetative turf grass and
6
drought-tolerant vegetative
OR NONVEGETATIVE landscapes or regulate7
the type, number, and placement of drought-tolerant plantings and8
hardscapes that may be installed on a unit owner's property or on a limited
9
common element or other property for which the unit owner is10
responsible. An association may restrict the installation of nonvegetative11
turf grass to rear yard locations only. PROPERTY THAT IS SUBJECT TO THE12
GUIDELINES OR RULES; EXCEPT THAT THE GUIDELINES OR RULES MUST :13
(A) N
OT PROHIBIT THE USE OF NONVEGETATIVE TURF GRASS IN14
THE BACKYARD OF A UNIT OWNER 'S PROPERTY;15
(B) N
OT UNREASONABLY REQUIRE THE USE OF HARDSCAPE ON16
MORE THAN TWENTY PERCENT OF THE LANDSCAPING AREA OF A UNIT17
OWNER'S PROPERTY;18
(C) A
LLOW A UNIT OWNER AN OPTION THAT CONSISTS OF AT LEAST19
EIGHTY PERCENT DROUGHT -TOLERANT PLANTINGS; AND20
(D) N
OT PROHIBIT VEGETABLE GARDENS IN THE FRONT , BACK, OR21
SIDE YARD OF A UNIT OWNER'S PROPERTY. AS USED IN THIS SUBSECTION22
(1)(i), "
VEGETABLE GARDEN" MEANS A PLOT OF GROUND OR AN ELEVATED23
SOIL BED IN WHICH POLLINATOR PLANTS , FLOWERS, OR VEGETABLES OR24
HERBS, FRUITS, LEAFY GREENS, OR OTHER EDIBLE PLANTS ARE25
CULTIVATED.26
(II) F
OR THE PURPOSES OF THIS SUBSECTION (1)(i), EACH27
SB23-178
-3- ASSOCIATION SHALL SELECT AT LEAST THREE PREPLANNED WATER -WISE1
GARDEN DESIGNS THAT ARE PREAPPROVED FOR INSTALLATION IN FRONT2
YARDS WITHIN THE COMMON INTEREST COMMUNITY . TO BE PREAPPROVED,3
A GARDEN DESIGN MUST ADHERE TO THE PRINCIPLES OF WATER -WISE4
LANDSCAPING, AS DEFINED IN SECTION 37-60-135 (2)(l), AND EMPHASIZE5
DROUGHT-TOLERANT AND NATIVE PLANTS. EACH GARDEN DESIGN MAY BE6
SELECTED FROM THE COLORADO STATE UNIVERSITY EXTENSION PLANT7
S
ELECT ORGANIZATION'S "DOWNLOADABLE DESIGNS " LIST OR FROM A8
MUNICIPALITY, UTILITY, OR OTHER ENTITY THAT CREATES SUCH GARDEN9
DESIGNS. AN ASSOCIATION SHALL CONSIDER A UNIT OWNER 'S USE OF ONE10
OF THE GARDEN DESIGNS SELECTED BY THE ASSOCIATION TO BE11
PREAPPROVED AS COMPLYING WITH THE ASSOCIATION 'S AESTHETIC12
GUIDELINES. EACH ASSOCIATION SHALL POST ON ITS PUBLIC WEBSITE , IF13
ANY, INFORMATION CONCERNING PREAPPROVALS OF GARDEN DESIGNS .14
(III) E
XCEPT AS DESCRIBED IN SUBSECTION (1)(i)(IV) OF THIS15
SECTION, IF AN ASSOCIATION KNOWINGLY VIOLATES THIS SUBSECTION16
(1)(i),
A UNIT OWNER WHO IS AFFECTED BY THE VIOLATION MAY BRING A17
CIVIL ACTION TO RESTRAIN FURTHER VIOLATION AND TO RECOVER :18
(A) D
AMAGES IN AN AMOUNT EQUAL TO ACTUAL DAMAGES PLUS19
FIVE HUNDRED DOLLARS PLUS ANY OTHER DAMAGES ;20
(B) C
OSTS; AND21
(C) R
EASONABLE ATTORNEY FEES .22
(IV) B
EFORE A UNIT OWNER COMMENCES A CIVIL ACTION AS23
DESCRIBED IN SUBSECTION (1)(i)(III) OF THIS SECTION, THE UNIT OWNER24
SHALL NOTIFY THE ASSOCIATION OF THE VIOLATION AND ALLOW THE25
ASSOCIATION FORTY-FIVE DAYS TO CURE THE VIOLATION.26
(B)
(V) This subsection (1)(i), as amended by House Bill 21-1229,27
SB23-178
-4- enacted in 2021, does not apply to an association that includes time share1
units, as defined in section 38-33-110 (7).2
(II) (VI) This paragraph (i) SUBSECTION (1)(i) does not supersede3
any subdivision regulation of a county, city and county, or other4
municipality.5
(VII) N
OTHING IN THIS SUBSECTION (1)(i) SHALL BE CONSTRUED6
TO PROHIBIT OR RESTRICT THE AUTHORITY OF ASSOCIATIONS TO :7
(A) A
DOPT BONA FIDE SAFETY REQUIREMENTS CONSISTENT WITH8
APPLICABLE LANDSCAPE CODES OR RECOGNIZED SAFETY STANDARDS FOR9
THE PROTECTION OF PERSONS AND PROPERTY ;10
(B) P
ROHIBIT OR RESTRICT THE ESTABLISHMENT AND11
MAINTENANCE OF FIRE BUFFERS OR DEFENSIBLE SPACES ; OR12
(C) P
ROHIBIT OR RESTRICT CHANGES TO EXISTING GRADING ,13
DRAINAGE, OR OTHER STRUCTURAL LANDSCAPE ELEMENTS NECESSARY14
FOR THE PROTECTION OF PERSONS AND PROPERTY .15
(VIII) N
OTWITHSTANDING ANY PROVISION OF THIS SECTION TO THE16
CONTRARY, THIS SUBSECTION (1)(i) APPLIES ONLY TO UNITS THAT ARE17
SINGLE-FAMILY DWELLINGS, AS DEFINED IN SECTION 38-45-101 (7).18
SECTION 2. In Colorado Revised Statutes, 37-60-126, amend19
(11)(a) and (11)(b)(IV); and add (11)(e) as follows:20
37-60-126. Water conservation and drought mitigation21
planning - programs - relationship to state assistance for water22
facilities - guidelines - water efficiency grant program - definitions -23
repeal. (11) (a) (I) Any section of a restrictive covenant or of the24
declaration, bylaws, or rules and regulations of a common interest25
community, all as defined in section 38-33.3-103, and any rule or policy26
of a special district, as defined in section 32-1-103 (20), that prohibits or27
SB23-178
-5- limits xeriscape, prohibits or limits the installation or use of1
drought-tolerant vegetative
OR NONVEGETATIVE landscapes, requires2
cultivated vegetation to consist wholly or partially of turf grass, or3
prohibits the use of nonvegetative turf grass in the backyard of a4
residential property is hereby declared contrary to public policy and, on5
that basis, is unenforceable.6
(II) This subsection (11)(a) does not prohibit common interest7
communities or special districts from adopting and enforcing design or8
aesthetic guidelines or rules that apply to drought-tolerant vegetative or9
nonvegetative landscapes or regulate the type, number, and placement of10
drought-tolerant plantings and hardscapes that may be installed on11
property that is subject to the guidelines or rules; except that the12
guidelines or rules must:13
(A) Not prohibit the use of nonvegetative turf grass in the14
backyard of a residential property;15
(B) N
OT UNREASONABLY REQUIRE THE USE OF HARDSCAPE ON16
MORE THAN TWENTY PERCENT OF THE LANDSCAPING AREA OF A UNIT OF17
A COMMON INTEREST COMMUNITY , AS THOSE TERMS ARE DEFINED IN18
SECTION 38-33.3-103 (8) AND (30);19
(C) A
LLOW A UNIT OWNER, AS DEFINED IN SECTION 38-33.3-10320
(31),
AN OPTION THAT CONSISTS OF AT LEAST EIGHTY PERCENT21
DROUGHT-TOLERANT PLANTINGS; AND22
(D) N
OT PROHIBIT VEGETABLE GARDENS IN THE FRONT , BACK, OR23
SIDE YARD OF A UNIT OWNER'S PROPERTY. AS USED IN THIS SUBSECTION24
(11)(a)(II)(D), "
VEGETABLE GARDEN" MEANS A PLOT OF GROUND OR AN25
ELEVATED SOIL BED IN WHICH POLLINATOR PLANTS , FLOWERS, OR26
VEGETABLES OR HERBS, FRUITS, LEAFY GREENS, OR OTHER EDIBLE PLANTS27
SB23-178
-6- ARE CULTIVATED.1
(II) (III) This subsection (11)(a), as amended by House Bill2
21-1229, enacted in 2021, does not apply to an association that includes3
time share units, as defined in section 38-33-110 (7).4
(b) As used in this subsection (11):5
(IV) "Xeriscape" means the application of the principles of6
landscape planning and design, soil analysis and improvement,7
appropriate plant selection, limitation of turf area, use of mulches,8
irrigation efficiency, and appropriate maintenance that results in water use9
efficiency and water-saving practices HAS THE MEANING SET FORTH IN10
SECTION 38-33.3-103 (33).11
(e) N
OTWITHSTANDING ANY PROVISION OF THIS SECTION TO THE12
CONTRARY, THIS SUBSECTION (11) APPLIES TO A UNIT OF A COMMON13
INTEREST COMMUNITY , AS THOSE TERMS ARE DEFINED IN SECTION14
38-33.3-103
(8) AND (30), ONLY IF THE UNIT IS A SINGLE -FAMILY15
DWELLING, AS DEFINED IN SECTION 38-45-101 (7).16
SECTION 3. Act subject to petition - effective date. This act17
takes effect at 12:01 a.m. on the day following the expiration of the18
ninety-day period after final adjournment of the general assembly; except19
that, if a referendum petition is filed pursuant to section 1 (3) of article V20
of the state constitution against this act or an item, section, or part of this21
act within such period, then the act, item, section, or part will not take22
effect unless approved by the people at the general election to be held in23
November 2024 and, in such case, will take effect on the date of the24
official declaration of the vote thereon by the governor.25
SB23-178
-7-