BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2104
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          Date of Hearing:   March 26, 2014

               ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT
                                   Ed Chau, Chair
                AB 2104 (Gonzalez) - As Introduced:  February 20, 2014
           
          SUBJECT  :   Common interest developments: water-efficient  
          landscapes 

           SUMMARY  :  Specifies that architectural or landscaping guidelines  
          or policies and decisions of a board of directors in a common  
          interest development (CID) that apply to specific homeowners are  
          void if they prohibit the use of low water-using plants and  
          other water conservation measures.  Specifically,  this bill  :  

          1)Specifies that architectural or landscaping guidelines or  
            policies and decisions by the board of directors that apply to  
            a specific homeowner are void and unenforceable if they:

             a)   prohibit the use of low water-using plants;  

             b)   restrict compliance with a water-efficient landscape  
               ordinance adopted by a local government; 

             c)   prevent a homeowner from complying with a water-saving  
               ordinance adopted by a local agency; or  

             d)   prohibit replacement of existing turf with low  
               water-using plants.

           EXISTING LAW  

          1)Defines the governing documents to mean the declaration, any  
            other documents such as the bylaws, operating rules of the  
            association, articles of incorporation, or articles of  
            association, which govern the operation of the CID or  
            homeowners association (HOA). (Civil Code Section 4150) 

          2)Makes the governing documents of a CID void and unenforceable  
            if they do any of the following:

             a)   Prohibit or include conditions that have the effect of  
               prohibiting low water-using plants as a group;

             b)   Restrict compliance with a water-efficient landscape  








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               ordinance adopted by a local government; or

             c)   Prohibit compliance with any regulation or restriction  
               on the use of water due to severe water shortage.    (Civil  
               Code Section 4735) 


           FISCAL EFFECT  :   None. 

           
          COMMENTS  :  

           Background  :  There are over 49,000 CIDs in the state that range  
          in size from three to 27,000 units. CIDs make up over 4.9  
          million housing units which represents approximately one quarter  
          of the state's housing stock.  CIDs include condominiums,  
          community apartment projects, housing cooperatives, and planned  
          unit developments.  They are characterized by a separate  
          ownership of dwelling space coupled with an undivided interest  
          in a common property, covenants and conditions that limit the  
          use of common area, separate ownership interests, the management  
          of common property, and enforcement of restrictions by a HOA.  
          CIDs are governed by the Davis Stirling Act as well as the  
          governing documents of the HOA including bylaws, declaration,  
          and operating rules.  Existing law provides protections to  
          homeowners who wish to install landscaping that includes low  
          water-using plants. 

          Under existing law the governing documents of a CID cannot  
          prohibit a homeowner from installing low water-using plants as a  
          group.  In addition, CIDs cannot prevent a homeowner from  
          installing landscaping that complies with a city's or county's  
          water-efficient landscape ordinance or from complying with any  
          restrictions on watering that a city or county adopts in  
          response to severe water shortages. 

           Drought emergency  :  In the beginning of this year, due to record  
          low rainfall, the governor declared a drought emergency. The  
          governor's declaration called on residents to voluntarily reduce  
          water consumption by 20 percent.   When state law was added to  
          clarify that a HOA's governing documents cannot prohibit a  
          homeowner from installing low water-using plants or complying  
          with local water saving ordinances, California was also  
          suffering from a drought. The Assembly Water Parks and Wildlife  
          analysis from AB 1061 (Lieu) (2001) Chaptered 501 states:    








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               "California currently suffers from a drought, and many  
               water agencies are considering mandatory water rationing as  
               early as this summer.  In both the short term and long  
               term, Californians will need to conserve water to maintain  
               water supply reliability for a growing population and a  
               fluctuating or diminishing water supply.  Because  
               landscaping can reflect about half of a resident's water  
               use, water-efficient landscaping is critical to long-term  
               water supply reliability.  According to 2007 California  
               Community Association Statistics, approximately 11 million  
               - or about 1/3 of - Californians live in CIDs.  They  
               therefore account for a significant portion of the  
               landscaping in California."

           The purpose of this bill  : According to the author,  
          "notwithstanding the clear intent of the law to promote water  
          conservation some HOAs have skirted these rules by: a) adopting  
          less formal policies that have the same effect as the prohibited  
          policies, e.g. requiring homeowners to keep existing  
          water-intensive lawns or keep a certain percentage of their  
          property covered by lawn; and/or b) denying individual  
          homeowners' requests for approval to install drought-tolerant  
          plants on their properties or to replace existing  
          water-intensive lawns with drought-tolerant plants on the  
          grounds that it would not be consistent with the character of  
          the neighborhood.   These actions are allegedly justified  
          because they are not part of the "governing documents" of the  
          CID. 

          AB 2104 would reinforce the intent of existing law by making  
          clear that HOAs cannot use the artifice of placing prohibitions  
          against or restrictions on the use of drought-tolerant  
          landscaping in guidelines, policies, or ad hoc decisions by the  
          board of directors, instead of the governing documents of the  
          CID per se. It is intended to state clearly the Legislature's  
          intent that the replacement of water-intensive lawns with  
          aesthetic drought-tolerant landscaping by environmentally  
          conscious homeowners is to be permitted, not thwarted by an  
          interpretation of the law that is intentionally too narrow.   
          This reinforcement of the law is particularly timely given the  
          current drought emergency, and especially in light of recent  
          news reports of HOA's fining homeowners for under-watering their  
          lawns."  









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           Staff comments:

           The board of directors and homeowners of an HOA rely upon the  
          governing documents which provide the rules and regulations for  
          governing the HOA.  State statute defines the governing  
          documents to include the articles of incorporation and  
          declaration as well as the operating rules.  The operating rules  
          should include guidance to homeowners on which low water-using  
          plants they can use to replace existing turf and, by state law,  
          cannot prohibit a homeowner from installing low water-using  
          plants. State statute specifies that an HOA can apply  
          landscaping rules established in the governing documents to the  
          extent that the rules do not prohibit a homeowner from  
          installing low water-using plants or comply with local  
          water-saving ordinances.  

          To the extent this is unclear or that the operating rules have  
          not been updated to reflect state law, AB 2104 would clarify  
          that any architectural guidelines or policies cannot prohibit a  
          homeowner from installing low water-using plants, installing a  
          water-efficient landscape that meets a local ordinance, or  
          complying with water conservation policies adopted by a local  
          government agency.  
           
          Committee amendments: 
           
          The committee may wish to consider the following amendments to  
          clarify the author's intent. 

                (a) Notwithstanding any other law, a provision of any  
               governing documents, or architectural or landscaping  
               guidelines or policies  and decisions by the board of  
               directors applicable to a specific homeowner  , shall be void  
               and unenforceable if it does any of the following:

               (1) Prohibits, or includes conditions that have the effect  
               of prohibiting, the use of low water-using plants as a  
               group, or as a replacement of existing turf.

               (2) Has the effect of prohibiting or restricting compliance  
               with either of the following:

               (A) A water-efficient landscape ordinance adopted or in  
               effect pursuant to subdivision (c) of Section 65595 of the  
               Government Code.








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               (B) Any regulation or restriction on the use of water  
               adopted pursuant to Section 353 or 375 of the Water Code.
                
               (3) Prohibits, or includes conditions that have the effect  
               of prohibiting, the replacement of existing turf with low  
               water-using plants.
                
               (b) This section shall not prohibit an association from  
               applying landscaping rules established in the governing  
               documents, to the extent the rules fully conform with  the  
               requirements of  subdivision (a).

           Related Legislation:
          
          AB 2100 (Campos) would prohibit an HOA from fining a homeowner  
          for yard maintenance issues related to under-watered plants  
          during a period of time that the governor has declared a state  
          of emergency due to a drought. This bill is pending hearing in  
          this Committee.

          AB 1636 (Brown) would prohibit an HOA from fining a homeowner  
          who does not water his or her lawn during a period that the  
          Governor has declared a state of emergency due to a drought.  
          This bill is pending hearing in this Committee.

          SB 992 (Nielsen) would prohibit an HOA from fining a homeowner  
          for yard maintenance issues related to under-watered plants  
          during a period of time that the governor has declared a state  
          of emergency due to a drought. This bill is pending hearing in  
          Senate Transportation and Housing Committee. 

          SB 1144 (Galgiani) would prohibit an HOA from fining a homeowner  
          for yard maintenance  related to under-watered plants during a  
          period of time that the governor has declared a state of  
          emergency due to a drought. This bill is pending hearing in  
          Senate Transportation and Housing Committee. 
           

          REGISTERED SUPPORT / OPPOSITION :   

           Support 
           
          California Association of Realtors 
          California Native Plant Society 








                                                                  AB 2104
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          California Rural Legal Assistance Foundation 
          Western Center on Law and Poverty 

           Opposition 
           
          None on file. 
           
          Analysis Prepared by  :    Lisa Engel / H. & C.D. / (916) 319-2085