As the drought in Colorado continues, and municipalities and water districts impose even more restrictions on watering, some local governments are passing or considering ordinances limiting enforcement of covenants requiring existing grass to be watered or new grass to be installed.
The city of Colorado Springs recently adopted an emergency ordinance to further limit water use as water use may be required by covenants. The ordinance, # 02-133, adopted on August 27th provides as follows:
During any water shortage declared under this part, no water customer shall be required, whether by public or private agreement, contract or regulation, to retain existing turf grass, to install new turf grass or to irrigate existing turf grass in a manner inconsistent with this part.
The ordinance is only applicable when a drought has been declared. The city of Colorado Springs declared a drought in the early part of the summer. Because the city of Colorado Springs provides the water to owners within homeowner associations in the city, the city appears to have the authority to preclude covenant enforcement related to irrigation by the ordinances or rules and regulations they adopt.
The ordinance appears to most adversely effect new common interest communities, where front and/or backyards have not yet been installed, giving these communities a greater burden to seek to resolve the mature communities, where all owners have installed landscaping.
The shortage of water may give rise to a defense to covenant enforcement and even rule enforcement sought by a homeowners association, with the defense being the shortage of water and/or a local ordinance like the one adopted in Colorado Springs.
So far, there do not appear to be many associations that are pursuing covenant or rule violations against owners for failure to maintain grass or install new grass areas. Homeowner associations should carefully evaluate any enforcement taken against an owner for failure to use water.
Due to the effect of this ordinance on homeowner associations within the city limits of Colorado Springs, the Colorado Legislative Action Committee of the Community Associations Institute (CAI) is reviewing the ordinance and determining if political action should be taken.
If you would like more information on this ordinance, or the actions that the Colorado Legislative Action Committee of the Community Associations Institute (CAI) may take, contact Jerry Orten at jorten@ortenhindman.com.