BILL ANALYSIS Ó
AB 2561
Page 1
Date of Hearing: April 30, 2014
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 2561 (Bradford) - As Amended: April 24, 2013
SUBJECT : Personal and entrepreneurial agriculture:
restrictions.
SUMMARY : Limits the ability of local governments, landlords,
and homeowners' associations to restrict the growing of edible
plant crops, except as specified. Specifically, this bill :
1)Eliminates the ability of a city, county, or city and county
to prohibit personal agriculture, community agriculture, or
entrepreneurial agriculture (as defined below), but allows a
city, county or city and county, to, by ordinance, adopt the
following restrictions on any of these agricultural activities
in a residential or commercial zone:
a) 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;
b) Restrictions on the cultivation and placement of plants
that may interfere with a public sidewalk;
c) Restrictions on structure for community gardening that
do not meet the same building standards applicable to
accessory structures within the zone;
d) Retail sales at the side 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 number 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; and,
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e) Restrictions on odor, noise, and dust caused by growing
produce and that cause a nuisance.
2)Specifies that each land use zone within a city, county, or
city and county shall be considered zoned for personal,
community, and entrepreneurial agriculture by right, unless a
local governmental agency, city council, or board of
supervisors determines that growing plant crops for human
consumption in 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.
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 (only
applies to residential real property that is improved with, or
consisting of, a building containing more than two units that
are intended for human habitation):
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 removing dead plant material
and weeds;
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, or block access to
utility panels; and,
d) The placement of the containers does not cause water or
other damage to the property.
4)Allows, if the containers are to be placed on top of grass, a
landlord to require the tenant to replant grass prior to
vacating the property.
5)Requires the cultivation of plant crops on the rental property
other than that which is contained in portable containers to
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be subject to approval from the landlord.
6)Allows a landlord to prohibit personal agriculture or any sort
by tenants on common areas.
7)Allows a landlord to 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 personal
agriculture, with the exception of container plants on paved
areas. Prohibits the security deposit from exceeding the cost
of anticipated restoration costs in the event that the tenant
does not restore the landscaping.
8)Allows a landlord to require the tenant to enter into a
written agreement regarding the payment of any excess water
and waste collection bills arising from the tenant's personal
agriculture activities.
9)Specifies that a landlord has a right to periodically inspect
any area where the tenant is engaging in personal agriculture
to ensure compliance.
10)Specifies that a landlord may not prevent tenants from the
off-site donation of products derived from personal
agriculture.
11)Specifies that any provision of a governing document, for
purposes of existing law related to common interest
developments and homeowners' associations, to be void and
unenforceable if it does either of the following:
a) Effectively prohibits or unreasonably restricts the use
of a homeowner's front or back yard for personal
agriculture; or,
b) Effectively prohibits or unreasonably restricts a
homeowner from the off-site sale or donation of produce
grown on the homeowner's property.
12)Provides, for 11), above, the following:
a) This section does not apply to provisions that impose
reasonable restrictions on the use of a homeowner's yard
for personal agriculture;
b) Defines "reasonable restrictions" to mean restrictions
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that do not significantly increase the cost of engaging in
personal agriculture or significantly decrease its
efficiency;
c) Specifies that this section applies only to yards that
are designated for the exclusive use of the homeowner; and,
d) Specifies that 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.
13)Defines the following terms:
a) "Common area" to mean an area of the property that is
shared with other tenants;
b) "Community agriculture" to mean 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 use by those cultivating the land;
c) "Entrepreneurial agriculture" to mean a use of land
managed by a public entity, nonprofit organization,
business entity, individual, or group of individuals to
cultivate edible plant corps for the purpose of sale or
donation;
d) "Private area" to mean an outdoor area of the property
that is for the exclusive use of a tenant;
e) "Personal agriculture" to mean a use of land where an
individual cultivates edible plant crops for personal use
or donation; and,
f) "Plant crop" to mean any crop in its raw or natural
state, which comes from a plant. It shall not include
marijuana or any other unlawful crops or substances.
14)Makes a number of findings and declares that it is the policy
of the state to promote and remove obstacles to increased
community access to fresh fruit and vegetables.
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15)Specifies that these findings are all matters of statewide
concern.
EXISTING LAW :
1)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.
2)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.
3)Regulates the terms and conditions of residential tenancies,
and generally requires landlords to keep the rental units in a
condition fit for occupancy.
4)Creates an implied covenant of quiet enjoyment in every lease,
requiring that the tenant shall not be disturbed in his or her
possession by the landlord.
5)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.
6)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.
7)Defines, for existing law related to homeowners' associations,
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the term "governing documents" to mean the declaration and any
other documents, such as bylaws, operating rules, articles of
incorporation, or articles of association, which govern the
operation of the common interest development or association.
8)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.
FISCAL EFFECT : This bill is keyed fiscal.
COMMENTS :
1)Purpose of this bill . This bill limits the ability of local
governments, landlords, and homeowners' associations to
restrict the growing of edible plant crops, except in
specified circumstances, in order to empower individuals to
grow food at home, on vacant lots, and in their communities.
The bill is sponsored by the Sustainable Economies Law Center.
2)Author's statement . According to the author, "This bill seeks
to ensure that people have the ability to grow edible fruits
and vegetables at home for personal use. This Act will
increase access to fresh produce for all Californians,
especially those in low income areas. Just like the rest of
the nation, California is experiencing a rising epidemic of
obesity related illnesses. 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. AB 2561 empowers individuals to grow food at home on a
small scale, which will lead to positive economic, health, and
environmental outcomes.
"I have made amendments that eliminate entrepreneurial
agriculture, limit personal agriculture only to one-and
two-unit properties, and require a tenant's plants to be
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confined to an outdoor area for the tenant's exclusive use.
These amendments also ensure that HOA's may impose reasonable
restrictions but may not effectively prohibit or unreasonably
restrict personal agriculture. This bill simply allows
families and individuals the freedom to grow produce on land
that they own or rent. This bill will provide healthy options
to people with limited access to fresh produce."
3)Additional background . The April 19, 2014 Judiciary
Committee analysis lists the following as additional
information submitted by 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."
4)Concerns from local government associations . An oppose unless
amended letter jointly authored by the League of California
Cities, American Planning Association of California,
California State Association of Counties, and Rural County
Representatives of California, notes that "of specific concern
is Section 4 of the bill specifically related to local
government zoning?it would mandate that community agriculture
(community gardeners), entrepreneurial agriculture (onsite
sales in residential and commercial zones) and personal
agriculture (produce grown for the homeowners' own use) be
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authorized in the entire city or county 'by right.'"
a) Health and safety protection not included . The joint
letter notes that "unlike the cottage food producer
requirements, the bill includes no health and safety
requirements to ensure the produce is health and free of
contamination?the bill does not specify a method to
identify the producer of food sold or donated in the event
of contamination or other health issues."
b) By right means no ability to apply restrictions on
home-based produce sales . The joint letter says that "if a
use is permitted by right, without a requirement that the
landowner notify the city or county they are selling
produce on their property, the city and county will not
know of such sales?as a result, even the limited types of
restrictions authorized in the bill could not be applied to
protect those eating the produce or producer's neighbors."
c) Food not subject to existing local ordinances . The
joint letter points out that "the restrictions authorized
in the bill do not allow a city or county to regulate the
safety of the produce being sold; traffic impacts including
commercial deliveries and pickups; structures such as
storage areas or produce stands, signage or lighting for
entrepreneurial or personal agriculture; or identify which
property owners are now selling produce out of their homes,
community gardens, or commercial establishments."
d) No landowner approval for community gardens . The joint
letter says that "usually community gardens are authorized
by local agencies with the approval of the property owner
on vacant lots?this bill would allow community gardens to
be managed on any property in the city or county,
residential or commercial, without local approval, and
strangely without a requirement that the landowner be
notified and grant permission."
e) Suggested amendments . The joint letter asks that the
author strike section 4 of the bill and replace with a new
section 4 that would allow, on or after January 1, 2016, if
allowed by a local ordinance and with the approval of the
landowner, a person or organization to grow, donate, and
sell produce grown in their yard, as long as it complies
with any requirements imposed by the local ordinance
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regulating food production and sales in residential areas.
The new section 4 would require agricultural products to
comply with existing law, require labelling, require
signage of the community food producer, and require the
food producer, if the product is being sold, to register as
a cottage food operator or with the local city or county
health enforcement office. The new section 4 would also
require, for a person who maintains a garden for personal
use or donation at their residence, the person to comply
with applicable land use and zoning restrictions, as
specified.
5)Concerns from rental housing groups . In an oppose letter
jointly authored by the California Southern Cities Apartment
Association, East Bay Rental Housing Association, Nor Cal
Rental Property Association, and the Apartment Association of
Orange County, the following issues are raised:
a) Damage to property . The joint letter says that the
"number one concern for landlords regarding this bill is
the potential for costly damage to the property?although
the provisions in the bill state that plants must be in
'portable containers' and that the placement 'does not
cause water or other damage to the property,' those
property are vague and do nothing to sufficiently guard
against damage."
b) Additional security deposit inadequate to cover
potential damage . The joint letter says that "although the
bill allows landlords to collect additional security
deposit from a tenant?the bill does not account for current
security deposit law?it is likely landlords will not be
able to collect enough money to cover potential damage to
the property."
c) Flawed approach . The joint letter says that "rental
properties come in all shapes, sizes and conditions" and
that the "one size fits all approach is the wrong
approach." Instead, the letter says that "food crop
agriculture on rented property should be a term that is
negotiated and agreed to by contract."
6)Related legislation . There are several related bills that may
be of interest to the Committee, including the following:
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a) AB 1616 (Gatto), Chapter 415, Statutes of 2012, defined
the production and sale of certain non-potentially
hazardous foods prepared in a home kitchens as a cottage
food operation (CFO); required CFOs to be registered or
permitted; exempted CFOs from the CRFC; excluded CFOs from
specified food processing establishments and Sherman Law
requirements; required CFOs to meet specified requirements
relating to training, sanitation, preparation, labeling,
and permissible types of sales, and be subject to
inspections under specified circumstances; and, made
related requirements.
b) AB 551 (Ting), Chapter 406, Statutes of 2013, authorized
a city or county, after a public hearing, to establish by
ordinance, a Zone within its boundaries for the purpose of
entering into voluntary enforceable contracts with
landowners, for the use of vacant, unimproved, or blighted
lands for small-scale production of agriculture crops and
animal husbandry.
c) AB 1990 (Gordon) of 2014 would add a definition of
"community food producer" to code to mean "a producer of
agricultural products on land that is not zoned for
agricultural use but is otherwise in compliance with
applicable local land use and zoning restrictions,
including but not limited to, restrictions governing
personal gardens, community gardens, school gardens and
culinary gardens." The bill additionally provides that a
community food producer must meet specified requirements,
unless the local jurisdiction adopts an ordinance
regulating community food production or agricultural
production that prohibits the activity. AB 1990 is
currently pending in the Assembly Appropriations Committee.
The Committee may wish to consider whether the approach in
AB 1990 is a better fit to allow community food production
to occur, but still allow for local governments to regulate
these activities.
7)Arguments in support . Supporters argue that empowering
individuals to grow food at home, on vacant lots and in their
communities will lead to positive economic, health, and
environmental outcomes throughout the state, and that this
bill will increase access to fresh produce for all
Californians, regardless of their place of residence and
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economic vulnerability.
8)Arguments in opposition . Opponents argue that the
restrictions in the bill are too onerous and do not allow for
homeowners' associations, landlords, and local governments to
impose reasonable restrictions and health and safety
protections on the growing of plants.
9)Double-referral . This bill was heard by the Judiciary
Committee on April 22, 2014, and passed with a 6-3 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
Sustainable Economies Law Center [SPONSOR]
Center for Agroecology and Sustainable Food Systems (UC Santa
Cruz)
City Slicker Farms
Community Food and Justice Coalition
Earth Law Center
Ecological Farming Association
Mendocino County Food Policy Council
Oakland Food Policy Council
Phat Beets Produce
Planting Justice
Pirate Produce
Sacramentans for Sustainable Community Agriculture
San Francisco Urban Agriculture Alliance
Santa Barbara Food Alliance
Slow Food California
Social Justice Learning Institute
Sustainable Economies Law Center
Ubuntu Green
Virtually Green
Women Organizing Resources Knowledge & Services (WORKS)
Opposition
American Planning Association (unless amended)
Apartment Association of Orange County
California Apartment Association (unless amended)
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California Southern Cities Apartment Association
California State Association of Counties (unless amended)
Easy Bay Rental Housing Association
League of California Cities (unless amended)
Nor Cal Rental Property Association
Rural County Representatives of California (unless amended)
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958