Amended in Assembly April 24, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2561

Introduced by Assembly Member Bradford

February 21, 2014

An act to add Sections 1940.10 and begin delete 4356 end delete begin insert 4750 end insert to the Civil Code, and to add Article 2.10 (commencing with Section 65892) to Chapter 4 of Division 1 of Title 7 of the Government Code, relating to land use.

LEGISLATIVE COUNSEL’S DIGEST

AB 2561, as amended, Bradford. Personal and entrepreneurial agriculture: restrictions.

(1) Existing law regulates the terms and conditions of residential tenancies, and prohibits a landlord from interfering with a tenant’s quiet enjoyment of the premises.

This bill would require a landlord to permit a tenant to participate in personal agriculture begin delete or entrepreneurial agriculture end delete in portable containers in the tenant’s private area, as defined, as long as specified conditions are met.

(2) Existing law, the Davis-Stirling Common Interest Development Act, defines and regulates common interest developments and authorizes the governing board of the homeowners’ association that manages the development to adopt and amend the operating rules for the development.

This bill would make void any provision of begin delete the end delete begin insert a end insert governing begin delete documents end delete begin insert document end insert of a common interest development that begin delete prohibits end delete begin insert effectively prohibits or unreasonably restricts end insert the use of a homeowner’s front or back yard for personal agriculture or begin delete entrepreneurial agriculture or prohibits end delete a begin delete homeowner from the end delete begin insert homeowner’s end insert off-site begin delete sale or end delete donation of produce grown on the homeowner’s property.

(3) The Planning and Zoning Law requires the legislative body of a city or county to adopt a comprehensive, long-term general plan that includes various elements, including a land use element that designates the proposed general distribution and general location and extent of the uses of the land for housing, business, industry, open space, including agriculture, natural resources, recreation, and enjoyment of scenic beauty, education, public buildings and grounds, solid and liquid waste disposal facilities, and other categories of public and private uses of land.

This bill would provide that a city, county, or city and county may not prohibit personal agriculture, a community garden, or entrepreneurial agriculture, as defined, within its jurisdiction, begin delete notwithstanding a zoning ordinance to the contrary, but may subject these activities to specified requirements end delete begin insert but may, by ordinance, adopt specified restrictions end insert . This bill would also require each land use zone within a city, county, or city and county to be considered zoned for begin insert personal, community, and end insert entrepreneurial agriculture begin insert by right end insert , unless a local governmental agency, city council, or board of supervisors determines that growing plant crops for human consumption within a particular area within its jurisdiction would pose a significant public health risk. By increasing the duties of local officials, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) California industrial agriculture is at risk due to water
shortages, soil degradation, pollution, environmental, and structural
threats to the San Francisco Bay Delta, and the rising cost of oil.
Providing Californians with the capacity to feed themselves and
their communities would drastically improve local food security
and mediate the risks of water, soil, environmental, or fuel-related
crises.

(b) Although California is the “bread basket” of the United
States and has regions of climate and land ideal for agriculture, a
significant amount of California’s food is grown hundreds or
thousands of miles from where it is consumed. This results in high
transportation costs, energy consumption, and lost economic
opportunity for our state. Even food grown in the heart of
California’s farming region is expensive to disperse to the rest of
the state due to rising fuel costs.

(c) California is no exception to rising obesity and
obesity-related diseases in the United States. Two-thirds of
American adults and nearly one-third of American children are
obese or overweight, putting them at risk for developing chronic
diseases, including diabetes, heart disease, or cancer. In California,
one in every nine children, one in three teens, and over one-half
of adults are already overweight or obese. This epidemic affects
virtually all Californians. Many of these health conditions are
preventable and curable through lifestyle choices that include
consumption of healthy fresh foods.

(d) One of every $10 dollars spent on health care in the United
States goes toward treating diabetes and its complications.
Facilitating opportunities for California residents to grow and
consume fresh, healthy foods will promote lifestyles and diets that
benefit individuals and communities, as well as being a more
effective use of public moneys.

(e) Many homeowners’ associations have rules prohibiting
homeowners from growing food in front yards or from selling food
grown on the property.

(f)  begin delete Additionally, 40 end delete begin insert Forty end insert percent of Californians live in
residences that they do not own, and may, as a result of lease
restrictions or disapproval by the landlord, face limitations on their
ability to grow food on the land where they reside.

(g) Providing Californians with increased opportunity to
participate in small-scale entrepreneurial agriculture will
supplement incomes during times of high unemployment and
underemployment and stimulate local economies.

(h) Lawncare is resource intensive, at no nutritional gain. Lawns
are the largest irrigated crop in the United States. In the urban areas
in the United States, 30 to 60 percent of residential water is used
for watering lawns. In arid and semiarid regions, this figure can
reach up to 75 percent. Annually, 67 million pounds (33,500 tons)
of synthetic pesticides are used on lawns in the United States.
Furthermore, lawnmowers use 580 million gallons of gasoline
yearly. These resources could be allocated to more productive
activities, including growing food, thus increasing access to healthy
options for low-income individuals.

(i) Gardens and agriculture on public lands help communities
increase their access to fresh fruits and vegetables, enhance urban
landscapes, motivate healthier eating, and connect neighborhoods.

begin delete

(j) Potential civil liability for misuse of community garden
facilities makes some public entities cautious about devoting public
lands to community gardens or about expanding existing gardens
to include fruit trees.

end delete begin insert

(j) It is the policy of the state to promote and remove obstacles
to increased community access to fresh fruit and vegetables and
encourage the practice of homeowners growing food in their
private yard space for personal use or for donation to others.

end insert begin insert

(k) These findings are all matters of statewide concern. The
Legislature recently identified the importance of small-scale,
neighborhood-based food enterprises throughout California in
achieving common, statewide economic, health, and environmental
goals. The Legislature acted upon this by enacting Chapter 415
of the Statutes of 2012 governing cottage food operations and the
Urban Agriculture Incentive Zones Act (Chapter 406 of the Statutes
of 2013). Legalizing the growing of produce throughout California
will enhance the positive impacts of such previous legislation.

end insert

SEC. 2.  

Section 1940.10 is added to the Civil Code, to read:

1940.10.  

(a) For begin insert the end insert purposes of this section, the following
begin delete terms are defined as follows: end delete begin insert definitions shall apply: end insert

(1) “Common area” means an area of the property that is shared
with other tenants.

(2) “Private area” means an begin insert outdoor end insert area of the property that is
for the exclusive use of a tenant.

begin insert

(3) “Personal agriculture” means a use of land where an
individual cultivates edible plant crops for personal use or
donation.

end insert begin insert

(4) “Plant crop” means any crop in its raw or natural state,
which comes from a plant. It shall not include marijuana or any
unlawful crops or substances.

end insert

(b) A landlord shall permit a tenant to participate in personal
agriculture begin delete or entrepreneurial agriculture end delete in portable containers in
the tenant’s private area as long as the following conditions are
met:

(1) The tenant regularly removes any dead plant material and
weeds, unless the landlord and tenant have a preexisting or separate
agreement regarding garden maintenance where the tenant is not
responsible for removing dead plant material and weeds.

(2) The placement of the containers does not interfere with any
tenant’s parking spot.

(3) The placement of the containers does not create a
trip-and-fall hazard, block doorways, or block access to utility
panels.

(4) The placement of the containers does not cause water or
other damage to the property.

(c) If the containers are to be placed on top of grass, a landlord
may require the tenant to replant grass prior to vacating the
property.

(d) The cultivation of begin delete food end delete begin insert plant crops end insert on the rental property
other than that which is contained in portable containers shall be
subject to approval from the landlord.

(e) A landlord may prohibit begin delete the cultivation end delete begin insert personal agriculture end insert
of any sort by tenants on common areas.

(f) With the exception of container plants on paved areas, a
landlord may choose to require an additional security deposit to
ensure that all landscaping is restored after the tenant vacates the
property or ceases to engage in begin delete food cultivation end delete begin insert personal
agriculture end insert . The security deposit shall not exceed the cost of
anticipated restoration costs in the event that the tenant does not
restore the landscaping.

(g) A landlord may require the tenant to enter into a written
agreement regarding the payment of any excess water and waste
collection bills begin delete stemming from the garden. end delete begin insert end insert begin insert arising from the tenant end insert begin insert ’s
personal agriculture activities. end insert

(h) A landlord has a right to periodically inspect begin delete the garden area end delete begin insert end insert
begin insert any area where the tenant is engaging in personal agriculture end insert to
ensure compliance with begin delete the above rules end delete begin insert this section end insert .

(i) A landlord may not prevent tenants from begin delete selling or donating
products derived from this gardening at an off-site location. end delete begin insert the
off-site donation of plant crops derived from personal agriculture
authorized under this section. end insert

begin insert

(j) This section shall only apply to residential real property that
is improved with, or consisting of, a building containing not more
than two units that are intended for human habitation.

end insert

SEC. 3.  

Section begin delete 4356 end delete begin insert 4750 end insert is added to the Civil Code, to read:

begin delete 4356. end delete
begin insert 4750. end insert   

(a)  begin delete Notwithstanding any other law, a provision of any
of the governing documents of a common interest development end delete
begin insert Any provision of a governing document, as defined in Section 4150, end insert
shall be void and unenforceable if it does either of the following:

(1)  begin delete Prohibits, or includes conditions that have the effect of
prohibiting, end delete begin insert Effectively prohibits or unreasonably restricts end insert the use
of a homeowner’s front or back yard for personal agriculture begin delete or
entrepreneurial agriculture end delete .

(2)  begin delete Prohibits, or includes conditions that have the effect of
prohibiting, end delete begin insert Effectively prohibits or unreasonably restricts end insert a
homeowner from the off-site begin delete sale or end delete donation of produce grown
on the homeowner’s property.

begin insert

(b) (1) This section does not apply to provisions that impose
reasonable restrictions on the use of a homeowner’s yard for
personal agriculture.

end insert begin insert

(2) For purposes of this section, “reasonable restrictions” are
restrictions that do not significantly increase the cost of engaging
in personal agriculture or significantly decrease its efficiency.

end insert begin delete

(b)

end delete

begin insert (c) end insert  This section applies only to yards that are designated for the
exclusive use of the homeowner.

begin delete

(c) This section shall not prohibit a homeowners’ association
from applying rules and regulations restricting on-site sale of
agricultural products.

end delete begin delete

(d) This section shall not prohibit a homeowners’ association
from applying rules and regulations restricting the hours of
operation and the number of visitors to gardens within the
homeowners’ association. These rules and regulations shall be
reasonable and not undermine the ability of the homeowner to
operate the personal agriculture or entrepreneurial agriculture to
operate efficiently. Rules and regulations that restrict the hours of
operation, number of visitors, and the frequency of visits shall not
be substantially different from similar restrictions affecting hours
of operation, or visitors to homeowner activities, such as outdoor
birthday parties or recreational activities.

end delete begin delete

(e)

end delete

begin insert (d) end insert  This section shall not prohibit a homeowners’ association
from applying rules and regulations requiring that dead plant
material and weeds, with the exception of straw, mulch, compost,
and other organic materials intended to encourage vegetation and
retention of moisture in the soil, are regularly cleared from the
front yard.

begin insert

(e) For the purposes of this section, the following definitions
shall apply:

end insert begin insert

(1) “Personal agriculture” means a use of land where an
individual cultivates edible plant crops for personal use or
donation.

end insert begin insert

(2) “Plant crop” means any crop in its raw or natural state,
which comes from a plant. It shall not include marijuana or any
unlawful crops or substances.

end insert

SEC. 4.  

Article 2.10 (commencing with Section 65892) is
added to Chapter 4 of Division 1 of Title 7 of the Government
Code, to read:

 

Article 2.10.  Personal begin delete and Entrepeneurial end delete begin insert , Community, and
Entrepreneurial end insert Agriculture

 

65892.  

(a) For purposes of this article, the following definitions
shall apply:

(1) “Community begin delete garden” end delete begin insert agriculture end insert begin insert ” end insert means a use of land
managed by a public entity, nonprofit organization, person, or
group of individuals to cultivate edible plant crops for donation
or for personal use by those cultivating the land.

(2) “Entrepreneurial agriculture” means a use of land managed
by a public entity, nonprofit organization, business entity,
individual, or group of individuals to cultivate edible plant crops
for the purpose of sale or donation.

(3) “Personal agriculture” means a use of land where an
individual cultivates edible plant crops for personal use or donation
begin delete as an accessory or a primary use of property end delete .

(4) “Plant crop” means any crop in its raw or natural state, begin delete which end delete
comes from a plant. It shall not include marijuana or any begin delete other end delete
unlawful crops or substances.

(b) A city, county, or city and county shall not prohibit personal
agriculture, begin delete a end delete community begin delete garden, end delete begin insert agriculture, end insert or entrepreneurial
agriculture within its begin delete jurisdiction, notwithstanding a zoning
ordinance to the contrary. end delete begin insert jurisdiction. end insert However, a city, county,
or city and county may, by ordinance, adopt the following
restrictions on any of these agricultural activities in a residential
or commercial zone:

(1) Reasonable restrictions pertaining to the presence of dead
plant material in a front yard, except that a city, county, or city
and county shall not restrict the use of dead plant material to be
used as ground cover, mulch, or compost.

(2) Restrictions on the cultivation and placement of plants that
may interfere with a public sidewalk.

(3) Restrictions on structures for community gardening that do
not meet the same building standards applicable to accessory
structures within the zone.

begin delete

(4) Retail sales at the site where plant crops are grown and all
other public use of the site or number of retail visitors. The
restrictions on hours of retail sales operation shall be reasonable
and not undermine the ability of the community garden,
entrepreneurial agriculture, or personal agriculture to operate
efficiently. Rules and regulations that restrict the number of retail
visitors, and the frequency of these visits, shall not be substantially
different from similar restrictions affecting the number of visitors
to other on-site activities, such as garage sales or holiday picnics.

(5) Restrictions on commercial deliveries and pickups that may
be limited to no less than once per day. On-site sales shall not be
considered commercial pickups.

end delete begin insert

(4) Retail sales at the site of the place where plant crops are
grown and all other public use of the site may be limited by certain
hours or days of operation or numbers of visitors on the premises.
Such hours or days of retail sales operation shall be reasonable
and not undermine the ability of the site to operate efficiently.
Rules and regulations that restrict the number of retail visitors,
and the frequency of such visits, shall not be substantially different
from similar restrictions affecting number of visitors to site
activities such as garage sales or holiday picnics.

end insert begin delete

(6)

end delete

begin insert (5) end insert  Restrictions on odor, noise, and dust caused by growing
produce and that begin delete affect home occupancy or end delete cause a nuisance.

(c) Each land use zone within a city, county, or city and county
shall be considered zoned for begin insert personal, community, and end insert
entrepreneurial agriculture begin insert by right end insert , unless a local governmental
agency, city council, or board of supervisors determines that
growing plant crops for human consumption begin delete witin end delete begin insert in end insert a particular
area within its jurisdiction would pose a significant public health
risk. If growing crops in a particular area is determined to present
a public health risk, this area shall be clearly delineated on a map
and the public health risk specific to that area shall be documented.
The map and documentation of any specific public health risk shall
be available to the general public.

SEC. 5.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.