SENATE BILL 23-178
BY SENATOR(S) Jaquez Lewis and Will, Marchman, Priola, Bridges,
Buckner, Coleman, Cutter, Exum, Fields, Ginal, Gonzales, Hansen,
Hinrichsen, Kolker, Moreno, Roberts, Sullivan, Fenberg;
also REPRESENTATIVE(S) McCormick and Lindsay, Amabile, Bird,
Boesenecker, Brown, Dickson, Froelich, Hamrick, Herod, Jodeh, Kipp,
Martinez, McLachlan, Michaelson Jenet, Ortiz, Parenti, Ricks, Sirota,
Snyder, Titone, Valdez, Velasco, Weissman, Willford, Woodrow,
McCluskie.
C
ONCERNING REMOVING BARRIERS TO WATER -WISE LANDSCAPING IN
COMMON INTEREST COMMUNITIES
.
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. In Colorado Revised Statutes, 38-33.3-106.5, amend
(1)(i)(I)(A); and add (1)(i.5) as follows:
38-33.3-106.5. Prohibitions contrary to public policy - patriotic,
political, or religious expression - public rights-of-way - fire prevention
- renewable energy generation devices - affordable housing - drought
prevention measures - child care - definitions. (1) Notwithstanding any
provision in the declaration, bylaws, or rules and regulations of the
NOTE: This bill has been prepared for the signatures of the appropriate legislative
officers and the Governor. To determine whether the Governor has signed the bill
or taken other action on it, please consult the legislative status sheet, the legislative
history, or the Session Laws.
________
Capital letters or bold & italic numbers indicate new material added to existing law; dashes
through words or numbers indicate deletions from existing law and such material is not part of
the act. association to the contrary, an association shall not prohibit any of the
following:
(i) (I) (A) 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, including a limited common
element or property owned by the unit owner. Associations may adopt and
enforce design or aesthetic guidelines or rules that apply to nonvegetative
turf grass and drought-tolerant vegetative landscapes or regulate the type,
number, and placement of drought-tolerant plantings and hardscapes that
may be installed on a unit owner's property or on a limited common element
or other property for which the unit owner is responsible. An association
may restrict the installation of nonvegetative turf grass to rear yard locations
only. T
HIS SUBSECTION (1)(i)(I)(A), AS AMENDED BY SENATE BILL 23-178,
ENACTED IN 2023, APPLIES ONLY TO A UNIT THAT IS A SINGLE-FAMILY HOME
THAT SHARES ONE OR MORE WALLS WITH ANOTHER UNIT AND DOES NOT
APPLY TO A UNIT THAT IS A DETACHED SINGLE
-FAMILY HOME.
(i.5) (I) T
HE USE OF XERISCAPE, NONVEGETATIVE TURF GRASS , OR
DROUGHT
-TOLERANT OR NONVEGETATIVE LANDSCAPES TO PROVIDE GROUND
COVERING TO PROPERTY FOR WHICH A UNIT OWNER IS RESPONSIBLE
,
INCLUDING A LIMITED COMMON ELEMENT OR PROPERTY OWNED BY THE UNIT
OWNER AND ANY RIGHT
-OF-WAY OR TREE LAWN THAT IS THE UNIT OWNER 'S
RESPONSIBILITY TO MAINTAIN
. ASSOCIATIONS MAY ADOPT AND ENFORCE
DESIGN OR AESTHETIC GUIDELINES OR RULES THAT APPLY TO
DROUGHT
-TOLERANT VEGETATIVE OR NONVEGETATIVE LANDSCAPES OR TO
VEGETABLE GARDENS OR THAT REGULATE THE TYPE
, NUMBER, AND
PLACEMENT OF DROUGHT
-TOLERANT PLANTINGS AND HARDSCAPES THAT
MAY BE INSTALLED ON PROPERTY THAT IS SUBJECT TO THE GUIDELINES OR
RULES
; EXCEPT THAT THE GUIDELINES OR RULES MUST :
(A) N
OT PROHIBIT THE USE OF NONVEGETATIVE TURF GRASS IN THE
BACKYARD OF A UNIT OWNER
'S PROPERTY;
(B) N
OT UNREASONABLY REQUIRE THE USE OF HARDSCAPE ON MORE
THAN TWENTY PERCENT OF THE LANDSCAPING AREA OF A UNIT OWNER
'S
PROPERTY
;
(C) A
LLOW A UNIT OWNER AN OPTION THAT CONSISTS OF AT LEAST
EIGHTY PERCENT DROUGHT
-TOLERANT PLANTINGS; AND
PAGE 2-SENATE BILL 23-178 (D) NOT PROHIBIT VEGETABLE GARDENS IN THE FRONT , BACK, OR
SIDE YARD OF A UNIT OWNER
'S PROPERTY. AS USED IN THIS SUBSECTION
(1)(i.5), "VEGETABLE GARDEN" MEANS A PLOT OF GROUND OR AN ELEVATED
SOIL BED IN WHICH POLLINATOR PLANTS
, FLOWERS, OR VEGETABLES OR
HERBS
, FRUITS, LEAFY GREENS, OR OTHER EDIBLE PLANTS ARE CULTIVATED.
(II) F
OR THE PURPOSES OF THIS SUBSECTION (1)(i.5), EACH
ASSOCIATION SHALL SELECT AT LEAST THREE PREPLANNED WATER
-WISE
GARDEN DESIGNS THAT ARE PREAPPROVED 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
, AS DEFINED IN SECTION 37-60-135 (2)(l), WHICH EMPHASIZE
DROUGHT
-TOLERANT AND NATIVE PLANTS , OR BE PART OF A WATER
CONSERVATION PROGRAM OPERATED BY A LOCAL WATER PROVIDER
. EACH
GARDEN DESIGN MAY BE SELECTED FROM THE
COLORADO STATE UNIVERSITY
EXTENSION
PLANT SELECT ORGANIZATION'S "DOWNLOADABLE DESIGNS "
LIST OR FROM A MUNICIPALITY, UTILITY, OR OTHER ENTITY THAT CREATES
SUCH GARDEN DESIGNS
. AN ASSOCIATION SHALL CONSIDER A UNIT OWNER 'S
USE OF ONE OF THE GARDEN DESIGNS SELECTED BY THE ASSOCIATION TO BE
PREAPPROVED AS COMPLYING WITH THE ASSOCIATION
'S AESTHETIC
GUIDELINES AND SHALL ALLOW A UNIT OWNER TO USE REASONABLE
SUBSTITUTE PLANTS WHEN A PLANT IN A DESIGN ISN
'T AVAILABLE. EACH
ASSOCIATION SHALL POST ON ITS PUBLIC WEBSITE
, IF ANY, INFORMATION
CONCERNING PREAPPROVALS OF GARDEN DESIGNS
.
(III) E
XCEPT AS DESCRIBED IN SUBSECTION (1)(i.5)(IV) OF THIS
SECTION
, IF AN ASSOCIATION KNOWINGLY VIOLATES THIS SUBSECTION
(1)(i.5), A UNIT OWNER WHO IS AFFECTED BY THE VIOLATION MAY BRING A
CIVIL ACTION TO RESTRAIN FURTHER VIOLATION AND TO RECOVER UP TO A
MAXIMUM OF FIVE HUNDRED DOLLARS OR THE UNIT OWNER
'S ACTUAL
DAMAGES
, WHICHEVER IS GREATER.
(IV) B
EFORE A UNIT OWNER COMMENCES A CIVIL ACTION AS
DESCRIBED IN SUBSECTION
(1)(i.5)(III) OF THIS SECTION, THE UNIT OWNER
SHALL NOTIFY THE ASSOCIATION IN WRITING OF THE VIOLATION AND ALLOW
THE ASSOCIATION FORTY
-FIVE DAYS AFTER RECEIPT OF THE NOTICE TO CURE
THE VIOLATION
.
(V) N
OTHING IN THIS SUBSECTION (1)(i.5) SHALL BE CONSTRUED TO
PROHIBIT OR RESTRICT THE AUTHORITY OF ASSOCIATIONS TO
:
PAGE 3-SENATE BILL 23-178 (A) ADOPT BONA FIDE SAFETY REQUIREMENTS CONSISTENT WITH
APPLICABLE LANDSCAPE CODES OR RECOGNIZED SAFETY STANDARDS FOR
THE PROTECTION OF PERSONS AND PROPERTY
;
(B) P
ROHIBIT OR RESTRICT CHANGES THAT INTERFERE WITH THE
ESTABLISHMENT AND MAINTENANCE OF FIRE BUFFERS OR DEFENSIBLE
SPACES
; OR
(C) PROHIBIT OR RESTRICT CHANGES TO EXISTING GRADING ,
DRAINAGE, OR OTHER STRUCTURAL LANDSCAPE ELEMENTS NECESSARY FOR
THE PROTECTION OF PERSONS AND PROPERTY
.
(VI) N
OTWITHSTANDING ANY PROVISION OF THIS SECTION TO THE
CONTRARY
, THIS SUBSECTION (1)(i.5) APPLIES ONLY TO A UNIT THAT IS A
SINGLE
-FAMILY DETACHED HOME AND DOES NOT APPLY TO :
(A) A
UNIT THAT IS A SINGLE-FAMILY ATTACHED HOME THAT SHARES
ONE OR MORE WALLS WITH ANOTHER UNIT
; OR
(B) A CONDOMINIUM.
SECTION 2. In Colorado Revised Statutes, 37-60-126, amend
(11)(b)(IV); and add (11)(a)(III) and (11)(a.5) as follows:
37-60-126. Water conservation and drought mitigation planning
- programs - relationship to state assistance for water facilities -
guidelines - water efficiency grant program - definitions - repeal.
(11) (a) (III) T
HIS SUBSECTION (11)(a), AS AMENDED BY SENATE BILL
23-178, ENACTED IN 2023, APPLIES ONLY TO A UNIT THAT IS A
SINGLE
-FAMILY HOME THAT SHARES ONE OR MORE WALLS WITH ANOTHER
UNIT AND DOES NOT APPLY TO A UNIT THAT IS A DETACHED SINGLE
-FAMILY
HOME
.
(a.5) (I) A
NY SECTION OF A RESTRICTIVE COVENANT OR OF THE
DECLARATION
, BYLAWS, OR RULES AND REGULATIONS OF A COMMON
INTEREST COMMUNITY
, ALL AS DEFINED IN SECTION 38-33.3-103, AND ANY
RULE OR POLICY OF A SPECIAL DISTRICT
, AS DEFINED IN SECTION 32-1-103
(20),
THAT PROHIBITS OR LIMITS XERISCAPE , PROHIBITS OR LIMITS THE
INSTALLATION OR USE OF DROUGHT
-TOLERANT VEGETATIVE OR
NONVEGETATIVE LANDSCAPES
, REQUIRES CULTIVATED VEGETATION TO
PAGE 4-SENATE BILL 23-178 CONSIST WHOLLY OR PARTIALLY OF TURF GRASS , OR PROHIBITS THE USE OF
NONVEGETATIVE TURF GRASS IN THE BACKYARD OF A RESIDENTIAL
PROPERTY IS HEREBY DECLARED CONTRARY TO PUBLIC POLICY AND
, ON THAT
BASIS
, IS UNENFORCEABLE. THIS SUBSECTION (11)(a.5) DOES NOT PROHIBIT
COMMON INTEREST COMMUNITIES OR SPECIAL DISTRICTS FROM ADOPTING
AND ENFORCING DESIGN OR AESTHETIC GUIDELINES OR RULES THAT APPLY
TO DROUGHT
-TOLERANT VEGETATIVE OR NONVEGETATIVE LANDSCAPES OR
REGULATE THE TYPE
, NUMBER, AND PLACEMENT OF DROUGHT -TOLERANT
PLANTINGS AND HARDSCAPES THAT MAY BE INSTALLED ON PROPERTY THAT
IS SUBJECT TO THE GUIDELINES OR RULES
; EXCEPT THAT THE GUIDELINES OR
RULES MUST
:
(A) N
OT PROHIBIT THE USE OF NONVEGETATIVE TURF GRASS IN THE
BACKYARD OF A RESIDENTIAL PROPERTY
;
(B) N
OT UNREASONABLY REQUIRE THE USE OF HARDSCAPE ON MORE
THAN TWENTY PERCENT OF THE L ANDSCAPING AREA OF A UNIT OF A
COMMON INTEREST COMMUNITY
, AS THOSE TERMS ARE DEFINED IN SECTION
38-33.3-103 (8) AND (30);
(C) A
LLOW A UNIT OWNER, AS DEFINED IN SECTION 38-33.3-103 (31),
AN OPTION THAT CONSISTS OF AT LEAST EIGHTY PERCENT
DROUGHT
-TOLERANT PLANTINGS; AND
(D) NOT PROHIBIT VEGETABLE GARDENS IN THE FRONT , BACK, OR
SIDE YARD OF A UNIT OWNER
'S PROPERTY. AS USED IN THIS SUBSECTION
(11)(a.5)(I)(D), "VEGETABLE GARDEN" MEANS A PLOT OF GROUND OR AN
ELEVATED SOIL BED IN WHICH POLLINATOR PLANTS
, FLOWERS, OR
VEGETABLES OR HERBS
, FRUITS, LEAFY GREENS, OR OTHER EDIBLE PLANTS
ARE CULTIVATED
.
(II) T
HIS SUBSECTION (11)(a.5) DOES NOT APPLY TO:
(A) A
UNIT OWNERS' ASSOCIATION, AS DEFINED IN SECTION
38-33.3-103 (3), THAT INCLUDES TIME SHARE UNITS, AS DEFINED IN SECTION
38-33-110 (7); OR
(B) A UNIT, AS DEFINED IN SECTION 38-33.3-103 (30), THAT IS A
SINGLE
-FAMILY HOME THAT SHARES ONE OR MORE WALLS WITH ANOTHER
UNIT
.
PAGE 5-SENATE BILL 23-178 (b) As used in this subsection (11):
(IV) "Xeriscape" means the application of the principles of
landscape planning and design, soil analysis and improvement, appropriate
plant selection, limitation of turf area, use of mulches, irrigation efficiency,
and appropriate maintenance that results in water use efficiency and
water-saving practices HAS THE MEANING SET FORTH IN SECTION
38-33.3-103 (33).
SECTION 3. In Colorado Revised Statutes, 37-60-115, amend
(6)(e) as follows:
37-60-115. Water studies - rules - repeal. (6) Precipitation
harvesting pilot projects. (e) (I) This subsection (6) is repealed, effective
July 1, 2026.
(II) T
HIS REPEAL DOES NOT AFFECT OR OTHERWISE PRECLUDE WATER
COURTS FROM ADJUDICATING ANY APPLICATION FOR AN AUGMENTATION
PLAN PURSUANT TO THIS SUBSECTION
(6) THAT IS FILED PRIOR TO JULY 1,
2026.
SECTION 4. Act subject to petition - effective date. This act
takes effect at 12:01 a.m. on the day following the expiration of the
ninety-day period after final adjournment of the general assembly; except
that, if a referendum petition is filed pursuant to section 1 (3) of article V
of the state constitution against this act or an item, section, or part of this act
within such period, then the act, item, section, or part will not take effect
unless approved by the people at the general election to be held in
PAGE 6-SENATE BILL 23-178 November 2024 and, in such case, will take effect on the date of the official
declaration of the vote thereon by the governor.
____________________________ ____________________________
Steve Fenberg
Julie McCluskie
PRESIDENT OF SPEAKER OF THE HOUSE
THE SENATE OF REPRESENTATIVES
____________________________ ____________________________
Cindi L. Markwell Robin Jones
SECRETARY OF CHIEF CLERK OF THE HOUSE
THE SENATE OF REPRESENTATIVES
APPROVED________________________________________
(Date and Time)
_________________________________________
Jared S. Polis
GOVERNOR OF THE STATE OF COLORADO
PAGE 7-SENATE BILL 23-178