First Regular Session
Seventy-fourth General Assembly
STATE OF COLORADO
ENGROSSED
This Version Includes All Amendments Adopted
on Second Reading in the House of Introduction
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
Amended 2nd Reading
April 3, 2023
SENATE SPONSORSHIP
Jaquez Lewis and Will, Marchman, Priola
HOUSE SPONSORSHIP
McCormick and Lindsay,
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
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 TO
7
VEGETABLE GARDENS or THAT regulate the type, number, and placement8
of drought-tolerant plantings and hardscapes that may be installed on a9
unit owner's property or on a limited common element or other property10
for which the unit owner is responsible. An association may restrict the11
installation of nonvegetative turf grass to rear yard locations only.12
PROPERTY THAT IS SUBJECT TO THE GUIDELINES OR RULES ; EXCEPT THAT13
THE GUIDELINES OR RULES MUST:14
(A) N
OT PROHIBIT THE USE OF NONVEGETATIVE TURF GRASS IN15
THE BACKYARD OF A UNIT OWNER 'S PROPERTY;16
(B) N
OT UNREASONABLY REQUIRE THE USE OF HARDSCAPE ON17
MORE THAN TWENTY PERCENT OF THE LANDSCAPING AREA OF A UNIT18
OWNER'S PROPERTY;19
(C) A
LLOW A UNIT OWNER AN OPTION THAT CONSISTS OF AT LEAST20
EIGHTY PERCENT DROUGHT -TOLERANT PLANTINGS; AND21
(D) N
OT PROHIBIT VEGETABLE GARDENS IN THE FRONT , BACK, OR22
SIDE YARD OF A UNIT OWNER'S PROPERTY. AS USED IN THIS SUBSECTION23
(1)(i), "
VEGETABLE GARDEN" MEANS A PLOT OF GROUND OR AN ELEVATED24
SOIL BED IN WHICH POLLINATOR PLANTS , FLOWERS, OR VEGETABLES OR25
HERBS, FRUITS, LEAFY GREENS, OR OTHER EDIBLE PLANTS ARE26
CULTIVATED.27
178
-3- (II) FOR THE PURPOSES OF THIS SUBSECTION (1)(i), EACH1
ASSOCIATION SHALL SELECT AT LEAST THREE PREPLANNED WATER -WISE2
GARDEN DESIGNS THAT ARE PREAPPROVED FOR INSTALLATION IN FRONT3
YARDS WITHIN THE COMMON INTEREST COMMUNITY . TO BE PREAPPROVED,4
A GARDEN DESIGN MUST ADHERE TO THE PRINCIPLES OF WATER -WISE5
LANDSCAPING, AS DEFINED IN SECTION 37-60-135 (2)(l), WHICH6
EMPHASIZE DROUGHT-TOLERANT AND NATIVE PLANTS , OR BE PART OF A7
WATER CONSERVATION PROGRAM OPERATED BY A LOCAL WATER8
PROVIDER. EACH GARDEN DESIGN MAY BE SELECTED FROM THE9
C
OLORADO STATE UNIVERSITY EXTENSION PLANT SELECT10
ORGANIZATION'S "DOWNLOADABLE DESIGNS " LIST OR FROM A11
MUNICIPALITY, UTILITY, OR OTHER ENTITY THAT CREATES SUCH GARDEN12
DESIGNS. AN ASSOCIATION SHALL CONSIDER A UNIT OWNER 'S USE OF ONE13
OF THE GARDEN DESIGNS SELECTED BY THE ASSOCIATION TO BE14
PREAPPROVED AS COMPLYING WITH THE ASSOCIATION 'S AESTHETIC15
GUIDELINES AND SHALL ALLOW A UNIT OWNER TO USE REASONABLE
16
SUBSTITUTE PLANTS WHEN A PLANT IN A DESIGN ISN 'T AVAILABLE. EACH17
ASSOCIATION SHALL POST ON ITS PUBLIC WEBSITE , IF ANY, INFORMATION18
CONCERNING PREAPPROVALS OF GARDEN DESIGNS .19
(III) E
XCEPT AS DESCRIBED IN SUBSECTION (1)(i)(IV) OF THIS20
SECTION, IF AN ASSOCIATION KNOWINGLY VIOLATES THIS SUBSECTION21
(1)(i),
A UNIT OWNER WHO IS AFFECTED BY THE VIOLATION MAY BRING A22
CIVIL ACTION TO RESTRAIN FURTHER VIOLATION AND TO RECOVER UP TO
23
A MAXIMUM OF FIVE HUNDRED DOLLARS OR THE UNIT OWNER 'S ACTUAL24
DAMAGES, WHICHEVER IS GREATER.25
(IV) B
EFORE A UNIT OWNER COMMENCES A CIVIL ACTION AS26
DESCRIBED IN SUBSECTION (1)(i)(III) OF THIS SECTION, THE UNIT OWNER27
178
-4- SHALL NOTIFY THE ASSOCIATION IN WRITING OF THE VIOLATION AND1
ALLOW THE ASSOCIATION FORTY-FIVE DAYS AFTER RECEIPT OF THE NOTICE2
TO CURE THE VIOLATION.3
(B) (V) This subsection (1)(i), as amended by House Bill 21-1229,4
enacted in 2021, does not apply to an association that includes time share5
units, as defined in section 38-33-110 (7).6
(II) (VI) This paragraph (i) SUBSECTION (1)(i) does not supersede7
any subdivision regulation of a county, city and county, or other8
municipality.9
(VII) N
OTHING IN THIS SUBSECTION (1)(i) SHALL BE CONSTRUED10
TO PROHIBIT OR RESTRICT THE AUTHORITY OF ASSOCIATIONS TO :11
(A) A
DOPT BONA FIDE SAFETY REQUIREMENTS CONSISTENT WITH12
APPLICABLE LANDSCAPE CODES OR RECOGNIZED SAFETY STANDARDS FOR13
THE PROTECTION OF PERSONS AND PROPERTY ;14
(B) P
ROHIBIT OR RESTRICT CHANGES THAT INTERFERE WITH
THE15
ESTABLISHMENT AND MAINTENANCE OF FIRE BUFFERS OR DEFENSIBLE16
SPACES; OR17
(C) P
ROHIBIT OR RESTRICT CHANGES TO EXISTING GRADING ,18
DRAINAGE, OR OTHER STRUCTURAL LANDSCAPE ELEMENTS NECESSARY19
FOR THE PROTECTION OF PERSONS AND PROPERTY .20
(VIII) N
OTWITHSTANDING ANY PROVISION OF THIS SECTION TO THE21
CONTRARY, THIS SUBSECTION (1)(i) APPLIES ONLY TO A UNIT THAT IS A
22
SINGLE-FAMILY DETACHED HOME AND DOES NOT APPLY TO :23
(A) A
UNIT THAT IS A SINGLE-FAMILY ATTACHED HOME THAT
24
SHARES ONE OR MORE WALLS WITH ANOTHER UNIT ; OR25
(B) A
CONDOMINIUM.
26
SECTION 2. In Colorado Revised Statutes, 37-60-126, amend27
178
-5- (11)(a) and (11)(b)(IV); and add (11)(e) as follows:1
37-60-126. Water conservation and drought mitigation2
planning - programs - relationship to state assistance for water3
facilities - guidelines - water efficiency grant program - definitions -4
repeal. (11) (a) (I) Any section of a restrictive covenant or of the5
declaration, bylaws, or rules and regulations of a common interest6
community, all as defined in section 38-33.3-103, and any rule or policy7
of a special district, as defined in section 32-1-103 (20), that prohibits or8
limits xeriscape, prohibits or limits the installation or use of9
drought-tolerant vegetative
OR NONVEGETATIVE landscapes, requires10
cultivated vegetation to consist wholly or partially of turf grass, or11
prohibits the use of nonvegetative turf grass in the backyard of a12
residential property is hereby declared contrary to public policy and, on13
that basis, is unenforceable.14
(II) This subsection (11)(a) does not prohibit common interest15
communities or special districts from adopting and enforcing design or16
aesthetic guidelines or rules that apply to drought-tolerant vegetative or17
nonvegetative landscapes or regulate the type, number, and placement of18
drought-tolerant plantings and hardscapes that may be installed on19
property that is subject to the guidelines or rules; except that the20
guidelines or rules must:21
(A) Not prohibit the use of nonvegetative turf grass in the22
backyard of a residential property;23
(B) N
OT UNREASONABLY REQUIRE THE USE OF HARDSCAPE ON24
MORE THAN TWENTY PERCENT OF THE LANDSCAPING AREA OF A UNIT OF25
A COMMON INTEREST COMMUNITY , AS THOSE TERMS ARE DEFINED IN26
SECTION 38-33.3-103 (8) AND (30);27
178
-6- (C) ALLOW A UNIT OWNER, AS DEFINED IN SECTION 38-33.3-1031
(31),
AN OPTION THAT CONSISTS OF AT LEAST EIGHTY PERCENT2
DROUGHT-TOLERANT PLANTINGS; AND3
(D) N
OT PROHIBIT VEGETABLE GARDENS IN THE FRONT , BACK, OR4
SIDE YARD OF A UNIT OWNER'S PROPERTY. AS USED IN THIS SUBSECTION5
(11)(a)(II)(D), "
VEGETABLE GARDEN" MEANS A PLOT OF GROUND OR AN6
ELEVATED SOIL BED IN WHICH POLLINATOR PLANTS , FLOWERS, OR7
VEGETABLES OR HERBS, FRUITS, LEAFY GREENS, OR OTHER EDIBLE PLANTS8
ARE CULTIVATED.9
(II)
(III) This subsection (11)(a), as amended by House Bill10
21-1229, enacted in 2021, does not apply to an association that includes11
time share units, as defined in section 38-33-110 (7).12
(b) As used in this subsection (11):13
(IV) "Xeriscape" means the application of the principles of14
landscape planning and design, soil analysis and improvement,15
appropriate plant selection, limitation of turf area, use of mulches,16
irrigation efficiency, and appropriate maintenance that results in water use17
efficiency and water-saving practices HAS THE MEANING SET FORTH IN18
SECTION 38-33.3-103 (33).19
(e) N
OTWITHSTANDING ANY PROVISION OF THIS SECTION TO THE20
CONTRARY, THIS SUBSECTION (11) APPLIES TO A UNIT OF A COMMON21
INTEREST COMMUNITY , AS THOSE TERMS ARE DEFINED IN SECTION22
38-33.3-103
(8) AND (30), ONLY IF THE UNIT IS A SINGLE -FAMILY23
DWELLING, AS DEFINED IN SECTION 38-45-101 (7).24
SECTION 3. In Colorado Revised Statutes, 37-60-115, amend
25
(6)(e) as follows:26
37-60-115. Water studies - rules - repeal. (6) Precipitation27
178
-7- harvesting pilot projects. (e) (I) This subsection (6) is repealed,1
effective July 1, 2026.2
(II) T
HIS REPEAL DOES NOT AFFECT OR OTHERWISE PRECLUDE
3
WATER COURTS FROM ADJUDICATING ANY APPLICATION FOR AN4
AUGMENTATION PLAN PURSUANT TO THIS SUBSECTION (6) THAT IS FILED5
PRIOR TO JULY 1, 2026.6
SECTION 4. Act subject to petition - effective date. This act7
takes effect at 12:01 a.m. on the day following the expiration of the8
ninety-day period after final adjournment of the general assembly; except9
that, if a referendum petition is filed pursuant to section 1 (3) of article V10
of the state constitution against this act or an item, section, or part of this11
act within such period, then the act, item, section, or part will not take12
effect unless approved by the people at the general election to be held in13
November 2024 and, in such case, will take effect on the date of the14
official declaration of the vote thereon by the governor.15
178
-8-