BILL ANALYSIS Ó
AB 2561
Page 1
Date of Hearing: April 22, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2561 (Bradford) - As Introduced: February 21, 2014
As Proposed to be Amended
SUBJECT : PERSONAL AGRICULTURE: RESTRICTIONS IN RESIDENTIAL
PROPERTY
KEY ISSUE : SHOULD RESIDENTS OF COMMON INTEREST DEVELOPMENTS AND
TENANTS IN CERTAIN TYPES OF RENTAL PROPERTY BE ABLE TO GROW
FRESH FRUITS AND VEGETABLES FOR PERSONAL USE IN THEIR PRIVATE
OUTDOOR SPACE, SUBJECT TO REASONABLE RESTRICTIONS BY THEIR
HOMEOWNER'S ASSOCIATION OR LANDLORD, RESPECTIVELY?
SYNOPSIS
This bill seeks to enact the Neighborhood Food Act, legislation
intended to remove obstacles to the practice of growing edible
fruits and vegetables in urban and suburban residential
neighborhoods for personal and community use or consumption.
This bill is sponsored by the Sustainable Economies Law Center
(SELC), a nonprofit group based in Oakland whose mission is to
encourage communities to develop their own sustainable sources
of food, housing, energy, and jobs. Specifically, the bill
seeks to ensure that residents of CID's and tenants in certain
kinds of rental properties may participate in "personal
agriculture" activities-growing fruits and vegetable plants at
home for personal use-subject to reasonable restrictions but not
completely prohibited by their homeowner's association (HOA) or
landlord.
Proposed amendments eliminate authority for entrepreneurial
agriculture in CIDs and in rental property altogether. With
respect to rental property only, the proposed amendments limit
personal agriculture to one-and two-unit properties, and require
a tenant's plants to be confined to an outdoor area for the
tenant's exclusive use, if any. With respect to CIDs only, the
proposed amendments further clarify the use of reasonable
restrictions upon personal agriculture by the HOA. Although the
author and opponent continue to dialogue on the bill, the
proposed amendments reflected in this analysis have apparently
not yet caused any of the opponents to remove their opposition.
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Due to time constraints, amendments accepted by the author will
be taken in the Local Government Committee.
SUMMARY : Seeks to ensure the ability of residents in common
interest developments and tenants in one- or two-unit rental
property to grow edible fruits and vegetables at home for
personal use, subject to reasonable restrictions. Specifically,
this bill :
1)Makes Legislative findings about the environmental,
nutritional, economic and public health-related benefits
associated with increased participation in growing fresh
plant-based foods on the land where one resides.
2)Defines "personal agriculture" to mean a use of land where an
individual cultivates edible plant crops for personal use or
donation, excluding marijuana or any other unlawful plants.
With respect to residential rental property:
3)Requires a landlord to permit a tenant to participate in
personal agriculture in portable containers in the tenant's
private area as long as the following conditions are met:
a) 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 such removal.
b) The placement of the containers does not interfere with
any tenant's parking spot.
c) The placement of the containers does not create a
trip-and-fall hazard, block doorways, block access to
utility panels or cause water or other damage to the
property.
4)Preserves the right of a landlord to periodically inspect any
area where the tenant is engaging in personal agriculture, and
to enter into a written agreement for the payment of excess
water and trash bills, among other things.
5)Limits application of these provisions only to residential
rental property consisting of a single building with one or
two dwelling units.
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With respect to residential property within a common interest
development (CID):
6)Provides that any provision of a governing document of a CID
that effectively prohibits or unreasonably restricts the
homeowner from using his or her front or back yard for
personal agriculture, or from the off-site sale or donation of
produce grown on the property, shall be void and
unenforceable.
7)Permits CID's to impose "reasonable restrictions" on the use
of a homeowner's yard for personal agriculture, defined as
restrictions that do not significantly increase the cost of
engaging in personal agriculture or significantly decrease its
efficiency.
8)Limits application of these provisions only to yards that are
designated for the exclusive use of the homeowner.
With respect to the restriction of personal agriculture by
cities and counties:
9)Provides that cities and counties shall not prohibit personal
agriculture, community agriculture, or entrepreneurial
agriculture, as defined, within their jurisdiction, but that
they may, by ordinance, adopt certain restrictions on any of
these agricultural activities in a residential or commercial
zone.
10)Specifies a number of types of restrictions that may be
adopted by ordinance, including reasonable restrictions
relating to nuisance prevention, public safety hazards,
applicable building standards, and retail visitors to the
property.
EXISTING LAW :
1)Regulates the terms and conditions of residential tenancies,
and generally requires landlords to keep the rental units in a
condition fit for occupancy. (Civil Code Section 1940 et
seq.)
2)Creates an implied covenant of quiet enjoyment in every lease,
requiring that the tenant shall not be disturbed in his or her
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possession by the landlord. (Civil Code Section 1927; Pierce
v. Nash (1954) 126 Cal.App.2d 606, 612.)
3)Regulates the purposes for which a renter's security deposit
may be used, including, but not limited to, compensating the
landlord for default on payment of rent, cleaning or repairing
rented property, exclusive of normal wear and tear, or
remedying future obligations under the rental agreement, as
specified. (Code of Civil Procedure Section 1950.5 (a)-(e).)
4)Permits the governing board of a homeowners' association to
adopt operating rules that apply generally to the management
and operation of the common interest development or the
conduct of the business and affairs of the association,
provided that the rule is within the authority of the board to
make, does not conflict with the association's articles,
bylaws, or governing law, and is reasonable. (Civil Code
Sections 4340 and 4350.)
5)Provides specified limits to the authority of an association
or the governing documents to regulate the use of a member's
separate interest, including provisions relating to the
display of signs, the installation of solar energy systems,
racial restrictions, and modification to property to
accommodate a disability. (Civil Code Section 4700 et seq.)
6)Requires the legislative body of each county and city to adopt
a comprehensive, long-term general plan, prepared by the local
planning agency, for the physical development of the county or
city, and of any land outside its boundaries which in the
planning agency's judgment bears relation to its planning.
(Government Code Section 65300.)
7)Requires the general plan to include a number of 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. (Government
Code Section 65302(a).)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
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COMMENTS : This bill seeks to enact the Neighborhood Food Act,
legislation intended to remove obstacles to the practice of
growing edible fruits and vegetables in urban and suburban
residential neighborhoods for personal and community use or
consumption. Specifically, the bill seeks to ensure that
residents of CID's and tenants in certain kinds of rental
properties may participate in "personal agriculture"
activities-growing fruits and vegetable plants at home for
personal use-subject to reasonable restrictions but not
completely prohibited by their homeowner's association (HOA) or
landlord.
Stated Need for the Bill. This bill is sponsored by the
Sustainable Economies Law Center (SELC), a nonprofit group based
in Oakland whose mission is to support grassroots economic
empowerment and encourage communities to develop their own
sustainable sources of food, housing, energy, and jobs.
According to the author:
Most city and county zoning laws contain numerous detailed
restrictions related to landscaping in residential and
other city zones in addition to restrictive ordinances
regarding "home occupations." Additionally, many vacant
lots in residential zones are not zoned as agricultural and
so using them as community gardens technically violates
city codes in many cities. This creates unnecessary and
illogical barriers to converting vacant land into community
gardens or small commercial fruit and vegetable gardens.
Finally, landlord-tenant leases and HOA contracts often
don't allow the cultivation of food on residential
property, whether for personal or commercial use.
The common home occupation restrictions and lack of proper
zoning for agriculture or gardens is especially problematic
for gardeners who wish to sell produce grown in residential
zones, even just a few baskets of produce to friends and
neighbors, or even when taking all produce offsite to sell.
These zoning laws frequently render many vegetable, fruit
and herb gardens illegal and are sometimes enforced against
community gardens and other micro-enterprise gardens in
residential zones.
While piecemeal efforts have moved extremely incrementally
at local levels to change these laws, this bill seeks to
remove these legal barriers and make growing food
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accessible to all Californians with one piece of common
sense legislation. Empowering individuals to grow food at
home, on previously vacant lots and in community gardens on
a small scale, will lead to positive economic, health, and
environmental outcomes throughout the state.
Proposed amendments eliminate entrepreneurial agriculture, limit
personal agriculture only to one-and two-unit properties, and
require a tenant's plants to be confined to an outdoor area for
the tenant's exclusive use, if any. As currently in print, this
bill requires landlords to permit tenants in any residential
rental property to engage in personal and entrepreneurial
agriculture in any area of the property that is for the
exclusive use of the tenant, as long as certain conditions are
met. By definition, property for the exclusive use of the
tenant includes the indoor dwelling area (bedrooms, kitchens,
bathrooms, etc.), meaning that the bill would require personal
agriculture to be permitted indoors in single-family homes and
apartments in multiunit buildings as well. In some properties,
there may be a private balcony, patio, or outside yard area that
is for the exclusive use of the tenant, but that would typically
be found in single-family homes and not multiunit apartment
buildings. As currently in print, in addition to personal
agriculture, the bill also requires landlords to permit
entrepreneurial agriculture, defined as "cultivation of edible
plant crops for the purpose of sale or donation."
Apartment associations and property owners that oppose the bill
contend that the bill unfairly grants tenants the new right to
grow as much food on the rental property as they desire,
including cultivation on a commercial scale, and that as a
result, these properties will suffer physical damage, decrease
in value, and landlords would lose control over appearance of
the property, among other things. Although the bill permits
personal agriculture only in portable containers (i.e. potted
plants) and provides that placement of the containers may not
cause water or other damage to the property, opponents contend
that provision is vague and that potted plants are still likely
to damage the property over time because they need soil and
water.
In order to try to address the concerns of apartment
associations who oppose the bill, the author proposes to amend
the bill to significantly narrow the scope of agriculture
allowed in residential rental properties. First, the proposed
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amendments eliminate entrepreneurial agriculture and clarify
that personal agriculture is permitted only for the tenant's
personal use or for donation to others. Second, the proposed
amendments limit personal agriculture only to one- and two-unit
properties, meaning that it will be permitted in single-family
homes and duplexes, but effectively excluded from large
multi-unit apartment buildings. Third, the proposed amendments
limit personal agriculture to outdoor areas for the tenant's
exclusive use-thus alleviating earlier concerns expressed by
opponents about the scope of damage to the inside of the rental
property posed by potted plants not otherwise visible without a
key to the premises. In short, the bill as proposed to be
amended allows only tenants in one- and two-unit rental
properties to engage in personal, not entrepreneurial,
agriculture in their exclusive use outdoor area and subject to
certain restrictions by the landlord. Despite the proposed
amendments, the apartment associations continue to officially
oppose the bill at the time of this analysis, although both
sides expressed intent to continue to discuss areas of
compromise.
Background on common interest developments . CIDs are multi-unit
communities characterized by the following: (1) separate
ownership of individual residential units coupled with an
undivided interest in common property; (2) covenants,
conditions, and restrictions (CC&Rs) that limit the use of both
separate interests and common property; and (3) management of
common property and enforcement of restrictions by a homeowner's
association (HOA). Under the Davis-Stirling Act, which sets
forth general rules governing common interest developments, each
individual CID is subject to rules and regulations set forth by
the HOA's "governing documents." These governing documents
include the recorded declaration and any other documents, such
as bylaws, operating rules of the association, or articles of
incorporation that govern the operation of the association.
CIDs are governed by volunteer boards of directors who are
elected by the members of the HOA and who are responsible for
interpreting the governing documents and state law. Except when
CIDs are first developed, no state agency provides ongoing
oversight to these communities. In order to amend the governing
documents, an HOA must follow the procedure outlined in their
governing documents, or if the governing documents are silent,
the process provided in state law. State law and most governing
documents require that a majority of members vote to approve an
amendment to the governing documents.
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An increasing proportion of Californians now live in CID's-by
some accounts between one-fourth and one-third of all
Californians-and it is likely CIDs represent the majority of new
housing being built in the state. Furthermore, the governing
documents of CIDs typically contain many restrictions over
aspects of use, appearance, and transferability of interest of
the property. For these reasons, this bill seeks to facilitate
the ability of homeowners in the ever-expanding CID-segment of
the population to engage in personal agriculture in their own
yards, subject to reasonable restrictions but not prohibited by
their homeowner's association.
Proposed amendments eliminate entrepreneurial agriculture and
clarify the use of reasonable restrictions in CIDs. As proposed
to be amended, this bill eliminates authority for
entrepreneurial agriculture and clarifies that personal
agriculture is permitted for the tenant's personal use or for
donation to others. The proposed amendments also state that any
provision of a CID governing document shall be void and
unenforceable if it effectively prohibits or restricts either
(1) the use of the homeowner's front or back yard for personal
agriculture, or (2) the off-site sale or donation of produce
grown on the homeowner's property. The bill does not, however,
prohibit a CID from imposing "reasonable restrictions" on the
use of a homeowner's yard for personal agriculture, which are
defined as restrictions that do not significantly increase the
cost of engaging in personal agriculture or significantly
decrease its efficiency.
Prior to the author's proposed amendments, the bill was opposed
by homeowners' associations, including ECHO and CAI, on the
general principle that any bill that seeks to restrict an HOA's
governing documents intrudes upon the existing process of
self-governance by members that is a central characteristic of
HOAs. ECHO writes in opposition: "When a separate interest in
a common interest development is purchased, the buyer agrees to
abide by the governing documents of the HOA. Those governing
documents can be amended by a vote of the association. This
bill bypasses that process and takes away the collective voice
of the other homeowners of the association who may have
legitimate reasons for denying personal agriculture in their
neighborhood."
The Committee notes that, notwithstanding the authority for
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self-governance provided to HOAs by statute, the Legislature
over the years also has seen fit to modify or limit that
authority when thought appropriate to further other important
public policy goals. For example, the Legislature recently
approved and the Governor signed SB 209 (Corbett), Ch. 121.
Stats. 2011, to promote the ownership of electric vehicles and
the reduction in pollution that they cause, among other things.
Specifically, SB 209 rendered void and unenforceable any
provisio of an HOA's governing documents that effectively
prohibits or restricts the installation or use of an electrical
vehicle charging station by an individual owner, as specified.
Like that measure, this bill provides that HOAs retain authority
to impose reasonable restrictions, in this case upon personal
agriculture, but they may not adopt rules that would prohibit or
effectively prohibit the practice. Similar restrictions upon
HOA authority to prohibit certain practices are sprinkled
through the Civil Code, including with respect to installation
of solar energy systems (Section 714), installation of satellite
dishes or antennas (Section 4725), ownership of pets (Section
4715), and rental of the property to tenants (Section 4740),
among others.
In short, the proposed amendments seek to ensure that owners in
common interest developments may engage in personal (but not
entrepreneurial) agriculture in their exclusive outdoor yard
areas, and that HOA's may impose reasonable restrictions but may
not effectively prohibit or unreasonably restrict personal
agriculture. At the time of this analysis, the author and the
CID associations continue to engage in dialogue, but it is not
known whether these proposed amendments are sufficient to remove
their opposition.
Double referral to Assembly Local Government for analysis of
local land use issues. Should this bill pass this Committee, it
will be referred to the Assembly Local Government Committee for
consideration. For this reason, this analysis focuses only on
the landlord-tenant and CID provisions of the bill (Sections 2
and 3), while preserving the local land use issues (Section 4)
for analysis in the Local Government Committee who has
jurisdiction over such matters.
ARGUMENTS IN SUPPORT : This bill is supported by produce
companies and advocates for urban agriculture, who write in
support:
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(This bill) will increase access to fresh produce for all
Californians, regardless of their place of residence and
socioeconomic limitations. Allowing small-scale local food
production will also reduce the carbon footprint of our
food system by shortening the distance between produce and
consumer. The bill also promotes efficient, fruitful use of
water and land resources, empowering Californians to
prioritize food cultivation over ornamental lawns and
vacant lots.
ARGUMENTS IN OPPOSITION : The bill is opposed by several
apartment associations and property owners. Two of them, the
Apartment Association of Greater Los Angeles and the Santa
Barbara Rental Property Association, state:
(We) support the objectives of the author - to promote
nutrition and good eating habits in areas of the state that
have difficulty doing so. And, we agree while homegrown
fruits and vegetables may not be the answer to drought,
obesity, diabetes and health care costs, there is ample
evidence that suggests they are part of the answer. But the
Legislature's support for and enthusiasm about nutrition
and improving access to fresh fruits and vegetables does
not justify such a serious trespass as AB 2561 is on two
fundamental principles undergirding rental housing: 1)
promoting and preserving the quiet enjoyment of the
premises; and 2) protecting against damage to the physical
property and associated premises. Indeed, those principles
have been long upheld by the Legislature.
Unfortunately, rather than encouraging or providing
incentives for the creation of community gardens,
particularly in urban areas and in neighborhoods where
fruits and vegetables aren't easily accessible, AB 2561
takes a heavy-handed approach - mandating that residents be
given the right to demand of property owners that they
allow indoor and outdoor gardening, regardless of physical
limitations of properties, the impacts on other residents
and the vast potential for damage to the properties.
REGISTERED SUPPORT / OPPOSITION :
Support
Sustainable Economies Law Center (SELC) (sponsor)
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City Slicker Farms
Phat Beets Produce, Inc.
Virtually Green
Opposition
Apartment Association, California Southern Cities
Apartment Association of Greater Los Angeles
Apartment Association of Orange County
California Apartment Association (unless amended)
Community Associations Institute (CAI)
East Bay Rental Housing Association
Educational Community of Homeowners (ECHO)
Nor Cal Rental Property Association
Santa Barbara Rental Property Association
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334