WHAT HAPPENS IF THE WELL RUNS DRY?

An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

Published March 31, 2008

Judge John Marshall Kest from the Circuit Court of the Ninth Judicial Circuit in and for Osceola County made it real easy on himself. In his ruling he avoided any mention of Florida-friendly landscaping or the serious problems our state has with trying to preserve water. His ruling just referred to violations of the Master Declaration of Covenants, Conditions, Restrictions, Easements and Reservations and he ordered the homeowner to cease and desist from altering his landscaping without approval and shall return the landscaping at his home to either (A) its approved condition prior to his unapproved changes or (B) another condition approved in writing by the DRB. Easy way for the judge to avoid controversy!

Actually, even if the ruling is correct according the CC&Rs, it makes very little sense considering the constant drought Florida experiences. Let's make it very clear: We raped Mother Nature and took more water from our water reserves than could be replaced! PERIOD! We are allowing an unlimited amount of new housing developments, knowing full well that our water reserves don't hold up. For years you could read in the media a report about water shortages and watering restrictions next to a report that the county commissioner approved a new community with 1000 homes. Common sense? Definitely not! Stupidity? Most likely YES!

The same homeowner, now forced to resod his yard with St. Augustine grass, known as the biggest water-gobbler of all, will receive in a little while a violation letter for "brown spots on the lawn" from the same homeowners' association board that forced him to remove his water-saving landscape.

Even Florida's legislature took note and passed FS 720.3075 (4):

(4) Homeowners' association documents, including declarations of covenants, articles of incorporation, or bylaws, entered after October 1, 2001, may not prohibit any property owner from implementing Xeriscape or Florida-friendly landscape, as defined in s. 373.185(1), on his or her land.

This provision tries to conserve water through Xeriscaping or engaging in Florida Friendly Landscaping, but only for CC&Rs entered after October 2001. Everybody else who lives in a mandatory homeowners' association, where a board lacks common sense, will have to continue to waste water by the truckload -- even trying to disregard county water restrictions in order to avoid receiving nasty violation letters and expensive fines from the HOA board. County fines are normally much less expensive than association fines. And since owners are forced to pick the lesser of two evils, they will most likely violate county restrictions!

The press release from the homeowner involved in trying to preserve water says it best -- nothing needs to be added! Common sense is dead!

PRESS RELEASE

Water Conservation Loses in Court. Who will fill the well?

Michael G. Di Marco, March 21, 2008

The Ninth Circuit Court ruled yesterday the Mr. Di Marco’s Florida Friendly landscape changes were a violation of the covenants of Kissimmee Bay Community Association. Since Mr. Di Marco did not apply for nor receive approval for the changes he must return the property to its condition before work began or to a condition approved by his Homeowners Association (HOA). This despite the fact Mr. Di Marco informed the HOA of his plans including details required in an application and the law restricts HOAs from prohibiting Florida Friendly landscaping. Regardless of the HOAs prohibition through action the court refused to exercise its inherent power to consider the ecological effects, consider the evidence of selective enforcement and use its power to invalidate HOA rules that are ambiguous, unreasonable, or violative of state policy.

While rainfall for the year is near normal, Osceola County still needs over a foot of rain to erase the current drought. Water Conservation took top priority for the Legislature in 2001, one of the worst fire seasons for North Florida on record, acting through legislation to protect homeowners wishing to help conserve water through Xeriscaping or engaging in Florida Friendly Landscaping. The question is, “How hard is the legislature willing to fight to protect our most vital resource, water?” Mr. Di Marco is now in debt for tens of thousands of dollars in legal fees and the costs for landscaping. His well has run dry. Will the state fight to fill the well for us all?