Cisterns Water systems in a POA

Texas statute clearly states that a POA cannot restrict a system or a water system however it can dictate where the system is located the size the color and how it can be camouflaged. What do you think restriction means then? Does it mean that our POA is charging a 200 and $ Application fee? I believe that we are being restricted but the POA disagrees. I’m not sure where to go from here? I think it’s imperative that our citizens have water systems as we have water issues in our area where at times we have no water. People can’t even flush their toilets. Our water bill is over $200 a month For the average home. Not less than $167 per month for a single person. Can somebody please advise me what to do? Thank you.

JoC8, I am aware that Texas statutes prohibit HOAs from restricting owners from using certain drought resistant features. But I am not aware of any other Texas statute that is relevant to water use. Can you cite the statute?

I don’t have the time to volunteer to take over something so I can be as dishonest to somebody else. We have laws for a reason. We have a lower income portion in our community that live in trailers. They can’t afford to spend a $200 application fee $90 on a cistern and then however, much it cost to put the fencing around it to camouflage it. It’s ridiculous, especially when we have such bad water issues. And the law allows us to have a cistern.

The water department is separate from POA. My point was everybody here should have a cistern water rain barrel because there are times we can’t even flush our toilet toilets. I’m not sure correlates with what you’re talking about.

What exactly would you consider a restriction then? A rain barrel only cost $90! Why should anyone pay $200 to have an application to buy one? Paying a $200 application fee to put in a $90 barrel seems a bit restrictive and price prohibitive. The statue goes on to state that the POA can dictate the color the size the location and the aesthetic surrounding the barrel. So what exactly is the law indicating a restriction and preventing the POA from doing?

Application and administrative fee.

I would write the board a just-the-facts, emotion-free letter, asserting that this fee seems to be a restriction in violation of TPC.

If you want a draft of what I would write, ask.

If the board does not provide a good reason for the fee, then the next step would be to threaten a lawsuit. That's not trivial. You would also want a lawyer to do it for you.

It appears that the statute does allow the Association to have some restrictions on the rain barrel. I also expect your governing documents require prior approval for exterior changes. Therefore, the Association is simply following their procedures for you to obtain approval.

If the Association denies your request for a reason not mentioned in the statute, that would be a violation of the statute.

Per that section of the statute (the applicable part):

Sec. 202.007. CERTAIN RESTRICTIVE COVENANTS PROHIBITED. (a) A property owners' association may not include or enforce a provision in a dedicatory instrument that prohibits or restricts a property owner from:

(2) installing rain barrels or a rainwater harvesting system;

(b) A provision that violates Subsection (a) is void.

(d) This section does not:

(6) require a property owners' association to permit a rain barrel or rainwater harvesting system to be installed in or on property if:

(A) the property is:

(i) owned by the property owners' association;

(ii) owned in common by the members of the property owners' association; or

(iii) located between the front of the property owner's home and an adjoining or adjacent street; or

(B) the barrel or system:

(i) is of a color other than a color consistent with the color scheme of the property owner's home; or

(ii) displays any language or other content that is not typically displayed by such a barrel or system as it is manufactured;

(7) restrict a property owners' association from regulating the size, type, and shielding of, and the materials used in the construction of, a rain barrel, rainwater harvesting device, or other appurtenance that is located on the side of a house or at any other location that is visible from a street, another lot, or a common area if:

(A) the restriction does not prohibit the economic installation of the device or appurtenance on the property owner's property; and

(B) there is a reasonably sufficient area on the property owner's property in which to install the device or appurtenance; or

(8) prohibit a property owners' association from requiring an owner to submit a detailed description or a plan for the installation of drought-resistant landscaping or water-conserving natural turf for review and approval by the property owners' association to ensure, to the extent practicable, maximum aesthetic compatibility with other landscaping in the subdivision.

(d-1) A property owners' association may not unreasonably deny or withhold approval of a proposed installation of drought-resistant landscaping or water-conserving natural turf under Subsection (d)(8) or unreasonably determine that the proposed installation is aesthetically incompatible with other landscaping in the subdivision.

Of course, you could always pay an attorney for a legal opinion.

The wording in the statute and case law both indicate boards have to be 'reasonable' when exercising their discretionary authority.

I think this comes down to whether $200 is reasonable. This means the board has to explain the basis for the $200 application fee. If they pulled the number from thin air, then this will not do. The HOA cannot bill for directors' or ARC members' time, since they are volunteers. If for some reason an attorney has to be involved in a review of the rain barrel, then the HOA might be justified. If the manager has to give each application considerable time, then the fee might be reasonable. But so far, I doubt either of these possible explanations for the application fee are true. It sounds like some board member got the hare-brained idea that charging a sizable application fee would relieve the HOA board and ARC of a lot of work. The $200 fee may be a fund-raiser for the HOA that is wholly inappropriate (since it is a non-profit).

We shall see.

I believe the courts would say a high enough application fee is a de facto prohibition.

I do not think much of a board that makes water conservation in Texas so difficult. My contempt goes even deeper given that the legislature has spoken and enacted TPC 202.007.

I completely agree. The entire statute has to do with conserving water, whether in landscaping or in barrels. Shame on this POA.