First Regular Session
Seventy-fourth General Assembly
STATE OF COLORADO
REVISED
This Version Includes All Amendments Adopted
on Second Reading in the Second House
LLS NO. 23-0801.01 Richard Sweetman x4333
SENATE BILL 23-178
Senate Committees House Committees
Local Government & Housing Transportation, Housing & Local Government
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
HOUSE
Amended 2nd Reading
April 24, 2023
SENATE
3rd Reading Unamended
April 4, 2023
SENATE
Amended 2nd Reading
April 3, 2023
SENATE SPONSORSHIP
Jaquez Lewis and Will, Marchman, Priola, Bridges, Buckner, Coleman, Cutter, Exum,
Fenberg, Fields, Ginal, Gonzales, Hansen, Hinrichsen, Kolker, Moreno, Roberts, Sullivan
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)(I)(A); and add (1)(i.5) 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 landscapes to provide ground covering to1
property for which a unit owner is responsible, including a limited2
common element or property owned by the unit owner. Associations may3
adopt and enforce design or aesthetic guidelines or rules that apply to4
nonvegetative turf grass and drought-tolerant vegetative landscapes or5
regulate the type, number, and placement of drought-tolerant plantings6
and hardscapes that may be installed on a unit owner's property or on a7
limited common element or other property for which the unit owner is8
responsible. An association may restrict the installation of nonvegetative9
turf grass to rear yard locations only. THIS SUBSECTION (1)(i)(I)(A), AS10
AMENDED BY SENATE BILL 23-178, ENACTED IN 2023, APPLIES ONLY TO11
A UNIT THAT IS A SINGLE-FAMILY HOME THAT SHARES ONE OR MORE12
WALLS WITH ANOTHER UNIT AND DOES NOT APPLY TO A UNIT THAT IS A13
DETACHED SINGLE-FAMILY HOME.14
(i.5) (I) THE USE OF XERISCAPE, NONVEGETATIVE TURF GRASS, OR15
DROUGHT-TOLERANT OR NONVEGETATIVE LANDSCAPES TO PROVIDE16
GROUND COVERING TO PROPERTY FOR WHICH A UNIT OWNER IS17
RESPONSIBLE, INCLUDING A LIMITED COMMON ELEMENT OR PROPERTY18
OWNED BY THE UNIT OWNER AND ANY RIGHT -OF-WAY OR TREE LAWN THAT19
IS THE UNIT OWNER'S RESPONSIBILITY TO MAINTAIN. ASSOCIATIONS MAY20
ADOPT AND ENFORCE DESIGN OR AESTHETIC GUIDELINES OR RULES THAT21
APPLY TO DROUGHT-TOLERANT VEGETATIVE OR NONVEGETATIVE22
LANDSCAPES OR TO VEGETABLE GARDENS OR THAT REGULATE THE TYPE,23
NUMBER, AND PLACEMENT OF DROUGHT-TOLERANT PLANTINGS AND24
HARDSCAPES THAT MAY BE INSTALLED ON PROPERTY THAT IS SUBJECT25
TO THE GUIDELINES OR RULES; EXCEPT THAT THE GUIDELINES OR RULES26
MUST:27
178
-3- (A) NOT PROHIBIT THE USE OF NONVEGETATIVE TURF GRASS IN1
THE BACKYARD OF A UNIT OWNER 'S PROPERTY;2
(B) N
OT UNREASONABLY REQUIRE THE USE OF HARDSCAPE ON3
MORE THAN TWENTY PERCENT OF THE L ANDSCAPING AREA OF A UNIT4
OWNER'S PROPERTY;5
(C) A
LLOW A UNIT OWNER AN OPTION THAT CONSISTS OF AT LEAST6
EIGHTY PERCENT DROUGHT -TOLERANT PLANTINGS; AND7
(D) N
OT PROHIBIT VEGETABLE GARDENS IN THE FRONT , BACK, OR8
SIDE YARD OF A UNIT OWNER'S PROPERTY. AS USED IN THIS SUBSECTION9
(1)(i.5), "VEGETABLE GARDEN " MEANS A PLOT OF GROUND OR AN10
ELEVATED SOIL BED IN WHICH POLLINATOR PLANTS , FLOWERS, OR11
VEGETABLES OR HERBS, FRUITS, LEAFY GREENS, OR OTHER EDIBLE PLANTS12
ARE CULTIVATED.13
(II) F
OR THE PURPOSES OF THIS SUBSECTION
(1)(i.5), EACH14
ASSOCIATION SHALL SELECT AT LEAST THREE PREPLANNED WATER -WISE15
GARDEN DESIGNS THAT ARE PREAPPROVED FOR INSTALLATION IN FRONT16
YARDS WITHIN THE COMMON INTEREST COMMUNITY . TO BE PREAPPROVED,17
A GARDEN DESIGN MUST ADHERE TO THE PRINCIPLES OF WATER -WISE18
LANDSCAPING, AS DEFINED IN SECTION 37-60-135 (2)(l), WHICH19
EMPHASIZE DROUGHT-TOLERANT AND NATIVE PLANTS , OR BE PART OF A20
WATER CONSERVATION PROGRAM OPERATED BY A LOCAL WATER21
PROVIDER. EACH GARDEN DESIGN MAY BE SELECTED FROM THE22
C
OLORADO STATE UNIVERSITY EXTENSION PLANT SELECT23
ORGANIZATION'S "DOWNLOADABLE DESIGNS " LIST OR FROM A24
MUNICIPALITY, UTILITY, OR OTHER ENTITY THAT CREATES SUCH GARDEN25
DESIGNS. AN ASSOCIATION SHALL CONSIDER A UNIT OWNER 'S USE OF ONE26
OF THE GARDEN DESIGNS SELECTED BY THE ASSOCIATION TO BE27
178
-4- PREAPPROVED AS COMPLYING WITH THE ASSOCIATION 'S AESTHETIC1
GUIDELINES AND SHALL ALLOW A UNIT OWNER TO USE REASONABLE2
SUBSTITUTE PLANTS WHEN A PLANT IN A DESIGN ISN 'T AVAILABLE. EACH3
ASSOCIATION SHALL POST ON ITS PUBLIC WEBSITE , IF ANY, INFORMATION4
CONCERNING PREAPPROVALS OF GARDEN DESIGNS .5
(III) E
XCEPT AS DESCRIBED IN SUBSECTION
(1)(i.5)(IV) OF THIS6
SECTION, IF AN ASSOCIATION KNOWINGLY VIOLATES THIS SUBSECTION7
(1)(i.5), A UNIT OWNER WHO IS AFFECTED BY THE VIOLATION MAY BRING8
A CIVIL ACTION TO RESTRAIN FURTHER VIOLATION AND TO RECOVER UP TO9
A MAXIMUM OF FIVE HUNDRED DOLLARS OR THE UNIT OWNER 'S ACTUAL10
DAMAGES, WHICHEVER IS GREATER.11
(IV) B
EFORE A UNIT OWNER COMMENCES A CIVIL ACTION AS12
DESCRIBED IN SUBSECTION
(1)(i.5)(III) OF THIS SECTION, THE UNIT OWNER13
SHALL NOTIFY THE ASSOCIATION IN WRITING OF THE VIOLATION AND14
ALLOW THE ASSOCIATION FORTY-FIVE DAYS AFTER RECEIPT OF THE NOTICE15
TO CURE THE VIOLATION.16
(V) NOTHING IN THIS SUBSECTION (1)(i.5) SHALL BE CONSTRUED17
TO PROHIBIT OR RESTRICT THE AUTHORITY OF ASSOCIATIONS TO :18
(A) A
DOPT BONA FIDE SAFETY REQUIREMENTS CONSISTENT WITH19
APPLICABLE LANDSCAPE CODES OR RECOGNIZED SAFETY STANDARDS FOR20
THE PROTECTION OF PERSONS AND PROPERTY ;21
(B) P
ROHIBIT OR RESTRICT CHANGES THAT INTERFERE WITH
THE22
ESTABLISHMENT AND MAINTENANCE OF FIRE BUFFERS OR DEFENSIBLE23
SPACES; OR24
(C) P
ROHIBIT OR RESTRICT CHANGES TO EXISTING GRADING ,25
DRAINAGE, OR OTHER STRUCTURAL LANDSCAPE ELEMENTS NECESSARY26
FOR THE PROTECTION OF PERSONS AND PROPERTY .27
178
-5- (VI) NOTWITHSTANDING ANY PROVISION OF THIS SECTION TO THE1
CONTRARY, THIS SUBSECTION (1)(i.5) APPLIES ONLY TO A UNIT THAT IS A2
SINGLE-FAMILY DETACHED HOME AND DOES NOT APPLY TO :3
(A) A
UNIT THAT IS A SINGLE-FAMILY ATTACHED HOME THAT
4
SHARES ONE OR MORE WALLS WITH ANOTHER UNIT ; OR5
(B) A
CONDOMINIUM.
6
SECTION 2. In Colorado Revised Statutes, 37-60-126, amend7
(11)(b)(IV); and add (11)(a)(III) and (11)(a.5) as follows:8
37-60-126. Water conservation and drought mitigation9
planning - programs - relationship to state assistance for water10
facilities - guidelines - water efficiency grant program - definitions -11
repeal. (11) (a) (III) THIS SUBSECTION (11)(a), AS AMENDED BY SENATE12
BILL 23-178, ENACTED IN 2023, APPLIES ONLY TO A UNIT THAT IS A13
SINGLE-FAMILY HOME THAT SHARES ONE OR MORE WALLS WITH ANOTHER14
UNIT AND DOES NOT APPLY TO A UNIT THAT IS A DETACHED SINGLE-FAMILY15
HOME.16
(a.5) (I) ANY SECTION OF A RESTRICTIVE COVENANT OR OF THE17
DECLARATION, BYLAWS, OR RULES AND REGULATIONS OF A COMMON18
INTEREST COMMUNITY, ALL AS DEFINED IN SECTION 38-33.3-103, AND ANY19
RULE OR POLICY OF A SPECIAL DISTRICT, AS DEFINED IN SECTION 32-1-10320
(20), THAT PROHIBITS OR LIMITS XERISCAPE, PROHIBITS OR LIMITS THE21
INSTALLATION OR USE OF DROUGHT-TOLERANT VEGETATIVE OR22
NONVEGETATIVE LANDSCAPES, REQUIRES CULTIVATED VEGETATION TO23
CONSIST WHOLLY OR PARTIALLY OF TURF GRASS, OR PROHIBITS THE USE OF24
NONVEGETATIVE TURF GRASS IN THE BACKYARD OF A RESIDENTIAL25
PROPERTY IS HEREBY DECLARED CONTRARY TO PUBLIC POLICY AND , ON26
THAT BASIS, IS UNENFORCEABLE. THIS SUBSECTION (11)(a.5) DOES NOT27
178
-6- PROHIBIT COMMON INTEREST COMMUNITIES OR SPECIAL DISTRICTS FROM1
ADOPTING AND ENFORCING DESIGN OR AESTHETIC GUIDELINES OR RULES2
THAT APPLY TO DROUGHT-TOLERANT VEGETATIVE OR NONVEGETATIVE3
LANDSCAPES OR REGULATE THE TYPE, NUMBER, AND PLACEMENT OF4
DROUGHT-TOLERANT PLANTINGS AND HARDSCAPES THAT MAY BE5
INSTALLED ON PROPERTY THAT IS SUBJECT TO THE GUIDELINES OR RULES;6
EXCEPT THAT THE GUIDELINES OR RULES MUST :7
(A) NOT PROHIBIT THE USE OF NONVEGETATIVE TURF GRASS IN8
THE BACKYARD OF A RESIDENTIAL PROPERTY ;9
(B) N
OT UNREASONABLY REQUIRE THE USE OF HARDSCAPE ON10
MORE THAN TWENTY PERCENT OF THE LANDSCAPING AREA OF A UNIT OF11
A COMMON INTEREST COMMUNITY , AS THOSE TERMS ARE DEFINED IN12
SECTION 38-33.3-103 (8) AND (30);13
(C) A
LLOW A UNIT OWNER, AS DEFINED IN SECTION 38-33.3-10314
(31),
AN OPTION THAT CONSISTS OF AT LEAST EIGHTY PERCENT15
DROUGHT-TOLERANT PLANTINGS; AND16
(D) N
OT PROHIBIT VEGETABLE GARDENS IN THE FRONT , BACK, OR17
SIDE YARD OF A UNIT OWNER'S PROPERTY. AS USED IN THIS SUBSECTION18
(11)(a.5)(II)(D), "VEGETABLE GARDEN" MEANS A PLOT OF GROUND OR AN19
ELEVATED SOIL BED IN WHICH POLLINATOR PLANTS , FLOWERS, OR20
VEGETABLES OR HERBS, FRUITS, LEAFY GREENS, OR OTHER EDIBLE PLANTS21
ARE CULTIVATED.22
(II) THIS SUBSECTION (11)(a.5) DOES NOT APPLY TO:23
(A) A UNIT OWNERS' ASSOCIATION, AS DEFINED IN SECTION24
38-33.3-103 (3), THAT INCLUDES TIME SHARE UNITS, AS DEFINED IN25
SECTION 38-33-110 (7); OR26
(B) A UNIT, AS DEFINED IN SECTION 38-33.3-103 (30), THAT IS A27
178
-7- SINGLE-FAMILY HOME THAT SHARES ONE OR MORE WALLS WITH ANOTHER1
UNIT.2
(b) As used in this subsection (11):3
(IV) "Xeriscape" means the application of the principles of4
landscape planning and design, soil analysis and improvement,5
appropriate plant selection, limitation of turf area, use of mulches,6
irrigation efficiency, and appropriate maintenance that results in water use7
efficiency and water-saving practices HAS THE MEANING SET FORTH IN8
SECTION 38-33.3-103 (33).9
10
SECTION 3. In Colorado Revised Statutes, 37-60-115, amend11
(6)(e) as follows:12
37-60-115. Water studies - rules - repeal. (6) Precipitation13
harvesting pilot projects. (e) (I) This subsection (6) is repealed,14
effective July 1, 2026.15
(II) T
HIS REPEAL DOES NOT AFFECT OR OTHERWISE PRECLUDE
16
WATER COURTS FROM ADJUDICATING ANY APPLICATION FOR AN17
AUGMENTATION PLAN PURSUANT TO THIS SUBSECTION (6) THAT IS FILED18
PRIOR TO JULY 1, 2026.19
SECTION 4. Act subject to petition - effective date. This act20
takes effect at 12:01 a.m. on the day following the expiration of the21
ninety-day period after final adjournment of the general assembly; except22
that, if a referendum petition is filed pursuant to section 1 (3) of article V23
of the state constitution against this act or an item, section, or part of this24
act within such period, then the act, item, section, or part will not take25
effect unless approved by the people at the general election to be held in26
178
-8- November 2024 and, in such case, will take effect on the date of the1
official declaration of the vote thereon by the governor.2
178
-9-