BILL ANALYSIS                                                                                                                                                                                                    






           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.