Virginia Progressives Statements on HB528, Conservation Landscapes and HOAs.
VAProgressives bullet point draft: HB528: an excellent bill with a fatal flaw.
HB528 set out to define and protect "managed conservation landscaping" and to prohibit unreasonable restrictions on it.
It positively defined the term as a "planned, intentional, and maintained" practice with the purpose of meeting four conservation goals, and negatively as not including turf grass left unattended for the purpose of returning to a natural state.
A version was circulated prior to hearing in subcommittee. Every change was unrelated to, or degraded, the conservation goals of the bill and shored up the potential for abuse of landscaping for exclusionary housing practices. That version should be rejected.
Fatal flaw in HB528.
These lines transform the bill from protecting a practice of residents, to enshrining and protecting a new power for HOAs and all Virginia lawn enforcers:
22 "Managed conservation
23 landscaping" does not include turf grass lawns left unattended for the purpose of returning to a natural
24 state.
A natural state is marked as something that can be treated as a nuisance in and of itself, and a person can be judged for the effort they exerted rather than the end they achieved.
The mention of turf grass turns this into a lawn ordinance, nullifying the remaining protections.
The protections will fail, as stronger protections already do in Harrisonburg.
This line will open enforcers to severe pressure from residents, making up 3% of people in Harrisonburg surveys, who Burr et al. (2021) described as:
"… these participants both experienced and exerted social control, through direct and indirect confrontation, with the intent to return nonconforming yards to compliance with neighborhood norms."
A Harrisonburg zoning inspector has quoted the Assistant City Attorney to say:
"planned intentional and maintained areas … was intended for gardens and intentionally planted flowers and …, not so much just natural growth."
This was enforced by the zoning inspector as:
"[cut everything down] either under 12 inches or at 12 inches, regardless of what we classify the grass as, then that's a good plan to deal with."
Harrisonburg's City Attorney compared endorsing No Mow May, the most well known of "planned, intentional, and maintained" landscape practices, to endorsing reckless driving in a construction zone.
The past Harrisonburg City Manager explained why staff ignored the letter of their ordinance:
"City Council asked us to enforce a lawn ordinance, and there is a traditional way of doing that."
Such enforcement is a documented barrier to adoption of conservation landscaping practices, consistent with a single-digit adoption rate of storm water best management practices by Harrisonburg residents despite financial incentives.
Solutions:
Revert to the bill as introduced.
On line 21, change "and" (vi) to "or (vi)."
Strike the full sentence on lines 22 to 24 in the bill as introduced.
Replace with "In a dispute over "planned, intentional, and maintained," presumption shall be in favor of the occupant."
Delete "or" on line 33 and add to line 44 "or (v) cannot be shown to have been met without appeal to the discretion of the enforcer."
Cited Sources
Andrea Burr, Damon M. Hall, Nicole Schaeg, Wildness and Wild Spaces in Residential Yards: Changing Neighborhood Norms to Support Pollinator Populations November 2021 Sustainability 13(22):12861 10.3390/su132212861
VA Progressives Statement to VA Housing Commission Working Group
Greetings Chairman Bulova, members of the House of Delegates, member of the Senate, Governor Appointed members and stakeholder members. Thank you for the opportunity to appear before the Local Land Use and Community Living Work Group.
My name is Jimmy Blackford. I am speaking on behalf of VA Progressives.
Our concern is for the one million Virginians who live under prohibitions imposed by Home Owners Associations. Some of these citizens will wish to employ their own yards and gardens in the worthy goal of promoting environmental health and reducing environmental damage>>>For all of us. To such residents, HB 528 is the most exciting bill to come out of this session.
But we are disappointed to point out that there are two lines under consideration that will allow this bill to do just the opposite.
Lines 22-24:
22 "Managed conservation 23 landscaping" does not include turf grass lawns left unattended for the purpose of returning to a natural 24 state.
This part of the bill will allow HOA enforcers and overly meddlesome neighbors to easily throw up bureaucratic barriers to yard tenders who want to plant grasses, native shrubs, pollinators and ground cover in their own yards. We would hope that all of us thank and encourage such gardeners for their stewardship of the environment.
I really want to drill down on what we regard as business overreach. Why, did you know that the plants in question do not even need to be within view from outside the property? Such plants could be out of sight from the street at all hours, yet still be found in violation.
So many plantings that all of us would regard as harmless and beneficial could be restricted because a very tidy neighbor or an HOA official could cite and expunge these well-conceived plants as (to quote the troublesome provision) "growing out for the purpose of becoming natural."
The phrases "becoming natural" and "left unattended" are vague. What about a plant "left unattended" for a mere weekend? You see how these phrases give objectionably wide latitude to HOA inspectors and overly-involved citizens who gain great contentment from lodging complaints?
Even more, we don't know what the sanctions will be.
Will a healthy-earth homeowner be required to cut back the offending Beauty Berry bush? Will the offending renter be ordered to cut down their American Hop Hornbeam? Will a gardener be told to dig up at the roots that blackberry shrub growing unmanicured and unattached to a trellis? The soccer enthusiast…the aspiring baseball little leaguer who protects from erosion their large neatly-cut lawn with a thin strip of tall-grass rain barrier?
These are questions that are thrown up by those troublesome words "…left unattended and allowed to grow out for the purpose of returning to a natural state." Yet all we can figure out is if you're in an HOA, you just have to keep your yard . . . "unnatural" . . .
I suppose it's too much to ask the HOAs themselves to encourage their homeowners to employ natural landscaping. In the meantime, we just think it's a little bit silly for the neighborhood busybody to snoop into a resident's yard to sniff out growth that's becoming natural.
So in order to encourage environmentally beneficial yards and to discourage unnecessary and obtrusive barriers to how some Virginians choose to tend their yards, we ask that you not allow into HB 528 lines 22 through 24."
VA Progressives