BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    THIRD READING


          Bill No:  AB 2104
          Author:   Gonzalez (D), et al.
          Amended:  8/12/14 in Senate
          Vote:     21

           
           SENATE TRANSPORTATION & HOUSING COMMITTEE  :  10-0, 6/10/14
          AYES:  DeSaulnier, Gaines, Cannella, Galgiani, Hueso, Lara, Liu,  
            Pavley, Roth, Wyland
          NO VOTE RECORDED:  Beall

           ASSEMBLY FLOOR  :  75-2, 4/3/14 - See last page for vote


           SUBJECT  :    Common interest developments:  low-water-using  
          plants

           SOURCE :     Conference of California Bar Associations


           DIGEST  :    This bill clarifies that existing law voiding common  
          interest development (CID) 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.

           Senate Floor Amendments  of 8/12/14 resolve chaptering conflicts  
          with AB 2100 (Campos) and add Senator Nielsen as a coauthor.

           ANALYSIS  :    A 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  
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          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  
          (Davis-Stirling 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 voids CID prohibitions  
          against using low-water-using plants as replacement of existing  
          turf. 

          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.  This bill  
          further states clearly that homeowners are permitted to replace  
          water-intensive lawns with aesthetic drought-tolerant  
          landscaping.  

           Background
           
          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.

           Comments

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          According to the author's office, 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." 

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   Local:  
           No

           SUPPORT  :   (Verified  8/13/14)

          Conference of California Bar Associations (source)
          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 
          City of Chula Vista
          Coastal Environmental Rights Foundation
          Councilmember Patricia Aguilar, 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
          San Diego County Water Authority
          Sierra Club California
          Surfrider Foundation
          TreePeople
          Western Center on Law and Poverty

           ASSEMBLY FLOOR  :  75-2, 4/3/14
          AYES:  Achadjian, Alejo, Ammiano, Atkins, Bigelow, Bloom,  
            Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian  

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            Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,  
            Dababneh, Dahle, Daly, Dickinson, Eggman, Fong, Fox, Frazier,  
            Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gray,  
            Hagman, Hall, Harkey, Roger Hernández, Holden, Jones,  
            Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein,  
            Mansoor, Medina, Melendez, Mullin, Muratsuchi, Nazarian,  
            Nestande, Olsen, Pan, Patterson, Perea, V. Manuel Pérez,  
            Quirk, Quirk-Silva, Rendon, Ridley-Thomas, 


            Rodriguez, Salas, Skinner, Stone, Ting, Wagner, Waldron,  
            Weber, Wieckowski, Wilk, Williams, Yamada, John A. Pérez
          NOES:  Allen, Donnelly
          NO VOTE RECORDED:  Gorell, Grove, Vacancy


          JA:d  8/13/14   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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