Bills Aim to Douse HOAs' Xeriscaping Restrictions

Last January, as the Texas drought wore on, an Austin-area homeowners association called the Woods of Brushy Creek made a big change to its landscaping policies. No longer would homeowners be required to have grass covering the entire front yard. Instead, they could request permission to cover most of the yard with drought-resistant plants, a technique known as xeriscaping.

“You can see the writing on the wall, that there are so many people moving [to Texas] and there is only going to be so much water,” said Debra Johnson, who works for Goodwin Management and serves as the association’s property manager.

Like the Woods at Brushy Creek, a small but rising number of homeowners groups are easing requirements for installing turf, and now two Texas lawmakers are trying to ensure that the trend goes statewide. Two bills, Senate Bill 198 and House Bill 449, by Sen. Kirk Watson and Rep. Dawnna Dukes, both Austin Democrats, would prevent HOAs from restricting xeriscaping. It’s an issue that has received rising attention as the drought continues.

HB 449 "gives the average individual the opportunity to be conscious of water conservation through xeriscaping, and it allows them to do their part," Dukes said.

HOA requirements to use grass are “very widespread,” said David Foster, the state program director for Texas Clean Water Action. Most HOAs, he said, "limit the ability of a homeowner to xeriscape.”

Outdoor watering accounts for an average of 50 percent to 80 percent of a home’s water use, according to the Texas Water Development Board. HOA residents must abide by local watering restrictions, meaning that lawns often turn brown during severe droughts like the current one.

The Legislature has tightened environmental controls on HOAs before. Last session, for example, lawmakers passed a law that prevented the associations from banning solar panels.

In 2003, then-state Rep. Robert Puente introduced a bill that would have dealt with concerns about homeowners associations and xeriscaping; however, the version that passed did not contain a ban on xeriscaping restrictions, and another attempt in 2005 did not pass. (Puente is now president of the San Antonio Water System.)

Dukes said she was "cautiously optimistic" about the legislation's chance of passage, given the huge water needs of the state. But Sen. Glenn Hegar, R-Katy, appears to be leaning against legislative action on HOAs and xeriscaping. Speaking on a water panel organized by StateImpact Texas, Hegar said, “Sometimes it’s most important to deal with it on the local levels rather than us to deal with it." He added that concerned homeowners could take matters into their own hands by becoming HOA board members and voting on the issue.

Dukes’ bill, which is more detailed than Watson’s measure, would prevent municipalities and counties (as well as HOAs) from restricting xeriscaping. However, Dukes could not provide an example of a municipality that has such restrictions in place, and her office said that the bill's language was modeled on xeriscaping laws in Arizona and Florida. A somewhat related example comes from Dallas, in which a homeowner was barred by city planners in 2009 from using artificial turf, rather than natural grass, in front of his historic bungalow.

Scott Norman, executive director of the Texas Association of Builders, said that although his organization had not taken a position on the legislation, it was “conceptually” supportive of it, although some language in Dukes’ bill concerned him.

“There’s a balance,” Norman said. “Obviously there’s a need in these drought times to do things to conserve water, and our organization is certainly supportive of those.” The builders’ group also strongly supports funding the state water plan to build necessary infrastructure for future growth, Norman said. (Gov. Rick Perry also expressed support for new water funding on Tuesday in his State of the State address.)

A key problem, according to San Antonio water officials, is that some HOAs forced residents to add new grass even as drought restrictions tightened. Karen Guz, the water conservation director for the San Antonio Water System, wrote in an email:

The attitude of the HOAs was that if the homeowners had taken enough care to start with, then their lawns would not need replacing. Some HOAs were willing to wait until the drought broke and others flat out did not care. They informed the homeowner that if they did not take care of it, the HOA would and charge them for it. This put homeowners in a tight spot as drought rules did not provide a variance for laying new sod for purely aesthetic reasons during drought. New sod requires a lot of water to get started before it can survive drought-restricted days and times.

San Antonio requires that all builders must allow homeowners the option of using 50 percent or less grass, Guz said, adding that “we have used this provision to discourage a neighborhood that has recently tried to go to 70 percent turf required."

In HOAs that have changed their ordinances, the process has often been gradual. At 2009, Avery Ranch, a community of more than 4,000 homes in North Austin, decided to allow up to 75 percent of lawns to use xeriscaping. But homeowners must apply to a designated committee to get permission — a “variance” — to adopt the technique. Robert Beyer, a resident and master gardener, urged the community to adopt drought-friendly changes in 2009. “The facts are there. Water is running out. We cannot afford to waste water,” he said.

Steve Roebuck, the president of the homeowners group at Avery Ranch, said that about two to three requests come in each week to xeriscape and that the change has been "well-received." But the community still requires 25 percent of the front lawn to have sod.

“We didn’t really want to go full xeriscape in the front yard because we still wanted to keep a Texas look and not an Arizona look,” Roebuck said. The HOA also recently relaxed its rules against dead grass and weeds in yards, but it is tightening them up again after yards grew "worse," Roebuck said. "We’re trying to keep our values up out here, and traditionally we’ve done that," he added.

Denise Hickey, a spokeswoman for the North Texas Municipal Water District, said that focus group surveys of HOA residents and board members last fall revealed some tensions between the two groups, which hindered efforts to advance water education.

HOA residents, she said, worried that suggesting water-efficiency improvements could result in retaliation, or a “nasty-gram,” from board members about their own landscaping. Board members, for their part, feared that even moderate water-education efforts would be construed as a move toward new rules.

As a result, there was a “strong reluctance on either side to reach out or try to include any water-efficiency measures,” Hickey said.

The issue has had far-reaching effects.

“I have a friend that if he has a dead spot in the yard, he will get a nasty-gram,” Hickey said.

StateImpact Texas contributed reporting.