BILL ANALYSIS Ó
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: AB 2104
SENATOR MARK DESAULNIER, CHAIRMAN AUTHOR: gonzalez
VERSION: 4/1/14
Analysis by: Mark Stivers FISCAL: no
Hearing date: June 10, 2014
SUBJECT:
Common interest developments: low-water-using plants
DESCRIPTION:
This bill clarifies that existing law voiding common interest
development prohibitions on the use of low-water-using plants
covers guidelines and policies and also voids prohibitions
against using low-water-using plants as replacement of existing
turf.
ANALYSIS:
A common interest development (CID) is a real property
development that includes all of the following: (1) separate
ownership of a lot or unit coupled with an undivided interest in
common property, (2) covenants, conditions, and restrictions
that limit use of both the common area and separate ownership
interests, and (3) management of common property and enforcement
of restrictions by a community association, which a board of
directors, generally elected, governs. Condominiums, planned
unit developments, stock cooperatives, community apartments, and
many resident-owned mobile home parks all fall under the CID
umbrella.
The Davis-Stirling Common Interest Development Act is the
principal law that governs CIDs in California. Among other
things, the Davis-Stirling Act provides that any provision of
the governing documents is void and unenforceable if it
prohibits or has the effect of prohibiting the use of
low-water-using plants as a group, or if it prohibits compliance
with a public water-efficient landscape ordinance or water use
regulation.
This bill clarifies that the law voiding CID prohibitions on the
use of low-water-using plants covers architectural or
landscaping guidelines and policies and also voids CID
AB 2104 (GONZALEZ) Page 2
prohibitions against using low-water-using plants as replacement
of existing turf.
COMMENTS:
1.Purpose of the bill . According to the author, notwithstanding
state law's clear intent to promote water conservation by
voiding CID governing document provisions prohibiting
low-water-using plants, some CIDs have circumvented the law by
adopting less formal policies that have the same effect.
These CIDs justify their actions by alleging that the policies
are not part of the "governing documents."
This bill reinforces the intent of existing law by making
clear that CIDs cannot use the artifice of placing
prohibitions against the use of drought-tolerant landscaping
in guidelines, policies, or ad hoc decisions of the board of
directors, instead of in the governing documents of the CID
per se. The bill further states clearly that homeowners are
permitted to replace water-intensive lawns with aesthetic
drought-tolerant landscaping. This is particularly timely
given the current drought emergency.
2.Declaratory of existing law . Informal CID policies that a
board or committee may use to arrive at decisions derive from
the powers vested with the board in the governing documents of
the CID. As a result, such policies are an extension of the
governing documents and therefore covered by existing law.
This bill simply clarifies the issue with express language to
assist lay directors in interpreting the law. Ultimately,
this bill is declaratory of existing law.
3.Chaptering conflicts . This bill has chaptering conflicts with
SB 992 (Nielsen) and AB 2100 (Campos). The author will need
to resolve these conflicts before final passage.
Assembly Votes:
Floor: 75-2
H&CD: 7-0
RELATED LEGISLATION:
SB 992 (Nielsen) prohibits a CID from imposing a fine or
assessment against an owner for yard maintenance issues related
to under-watered plants and lawns during a drought emergency.
AB 2104 (GONZALEZ) Page 3
In the Assembly Housing and Community Development Committee.
AB 2100 (Campos) prohibits a CID from imposing a fine or
assessment against an owner for reducing or eliminating watering
of vegetation or lawns during a drought emergency. Set for
hearing on June 17 in this committee.
POSITIONS: (Communicated to the committee before noon on
Wednesday, June 4,
2014.)
SUPPORT: Conference of California Bar Associations
7th Generation Advisors
Association of California Water Agencies
Association of Professional Landscape Designers
Bay-Friendly Landscaping and Gardening Coalition
California Association of Realtors
California Landscape Contractors Association
California League of Conservation Voters
California Native Plant Society
California Rural Legal Assistance Foundation
Coastal Environmental Rights Foundation
Councilmember Patricia Aguilar, City of Chula
Vista
Councilmember Mary Salas, City of Chula Vista
Desert Water Agency
Dirk Poeschel Land Development Services, Inc.
East Bay Municipal Utility District
EcoLandscape California
Environment California
Heal the Bay
Natural Resources Defense Council
Planning and Conservation League
The River Project
San Diego County Water Authority
Sierra Club California
Surfrider Foundation
TreePeople
Western Center on Law and Poverty
OPPOSED: None received.