BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2561 (Bradford)
As Amended May 28, 2014
Hearing Date: June 24, 2014
Fiscal: No
Urgency: No
TMW
SUBJECT
Personal Agriculture: Restrictions
DESCRIPTION
This bill would require a landlord to permit a tenant to
participate in personal agriculture in portable containers, if
certain conditions are met.
This bill would void any provision of a governing document of a
common interest development that effectively prohibits or
unreasonably restricts the use of a homeowner's back yard for
personal agriculture.
(This analysis reflects author's amendments to be offered in
Committee.)
BACKGROUND
In California, common interest developments (CIDs) are governed
by the Davis-Stirling Common Interest Development Act
(Davis-Stirling Act). Owners of separate property in CIDs have
an undivided interest in the common property of the development
and are subject to the CIDs covenants, conditions, and
restrictions. CIDs are also governed by a homeowners
association (HOA), which is run by volunteer directors that may
or may not have prior experience managing an association. The
Davis-Stirling Act establishes the rules and regulations
governing the operation of a CID and the respective rights and
duties of an HOA and its members.
Separately, existing law regulates the terms and conditions of
(more)
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residential tenancies and provides specified tenant protections
in the use of the rental property. This bill would add to the
Davis-Stirling Act and landlord-tenant law protections for a CID
homeowner or tenant to grow edible crops for personal use or
donation.
This bill was heard by the Senate Transportation and Housing
Committee on June 17, 2014, and passed out on a vote of 10-1.
CHANGES TO EXISTING LAW
Existing law regulates the terms and conditions of residential
tenancies and generally requires a landlord to keep a rental
unit in a condition fit for occupancy. (Civ. Code Sec. 1940 et
seq.)
Existing law 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. (Civ. Code Sec. 1927;
Pierce v. Nash (1954) 126 Cal.App.2d 606, 612.)
Existing law 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 Civ. Proc. Sec. 1950.5 (a)-(e).)
Existing law , the Davis-Stirling Common Interest Development Act
(Davis-Stirling Act), establishes the rules and regulations
governing the operation of a common interest development (CID)
and the respective rights and duties of a homeowners'
association (HOA) and its members. (Civ. Code Sec. 4000 et
seq.)
Existing law permits the governing board of an HOA to adopt
operating rules that apply generally to the management and
operation of the CID or the conduct of the business and affairs
of HOA, provided that the rule is within the authority of the
board to make, does not conflict with the HOA's articles,
bylaws, or governing law, and is reasonable. (Civ. Code Secs.
4340, 4350.)
Existing law limits the authority of an HOA or the governing
documents of a CID to regulate the use of a member's separate
interest. (Civ. Code Sec. 4700 et seq.)
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Existing law makes a provision of the CID governing documents
void and unenforceable if it does any of the following:
prohibits, or includes conditions that have the effect of
prohibiting, the use of low water-using plants as a group; or
has the effect of prohibiting or restricting compliance with
either of the following: (1) a water-efficient landscape
ordinance adopted or in effect, as specified, or (2) any
regulation or restriction on the use of water adopted, as
specified. (Civ. Code Sec. 4735(a).)
Existing law does not prohibit an association from applying
landscaping rules established in the governing documents, to the
extent the rules fully conform with the above requirements.
(Civ. Code Sec. 4735(b).)
This bill would require a landlord to permit a tenant to
participate in personal agriculture in portable containers
approved by the landlord in the tenant's private area if the
following conditions are met:
the tenant regularly removes any dead plant material and
weeds, with the exception of straw, mulch, compost, and any
other organic materials intended to encourage vegetation and
retention of moisture in soil, unless the landlord and tenant
have a preexisting or separate agreement regarding garden
maintenance where the tenant is not responsible for removing
or maintaining plant crops and weeds;
the plant crops will not interfere with the maintenance of the
rental property;
the placement of the portable containers does not interfere
with any tenant's parking spot; and
the placement and location of the portable containers may be
determined by the landlord, however, the portable containers
may not create a health and safety hazard, block doorways, or
interfere with walkways or utility services or equipment.
This bill would provide that the cultivation of plant crops on
the rental property other than that which is contained in
portable containers is subject to approval from the landlord.
This bill would authorize a landlord to prohibit the use of
synthetic chemical herbicides, pesticides, fungicides,
rodenticides, insecticides, or any other synthetic chemical
product commonly used in the growing of plant crops.
This bill would authorize a landlord to require the tenant to
enter into a written agreement regarding the payment of any
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excess water and waste collection bills arising from the
tenant's personal agriculture activities.
This bill would provide that a landlord has a right to
periodically inspect any area where the tenant is engaging in
personal agriculture to ensure compliance with this bill,
subject to notice requirements.
This bill would limit the above provisions only 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.
This bill would state that any provision of a governing document
of a CID is void and unenforceable if it effectively prohibits
or unreasonably restricts the use of a homeowner's backyard for
personal agriculture.
This bill would not apply to provisions in the governing
document that impose reasonable restrictions on the use of a
homeowner's yard for personal agriculture.
This bill would apply only to yards that are designated for the
exclusive use of the homeowner.
This bill would not prohibit an HOA 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 backyard.
This bill would provide the following definitions:
"reasonable restrictions" are restrictions that do not
significantly increase the cost of engaging in personal
agriculture or significantly decrease its efficiency;
"private area" means an outdoor backyard area that is on the
ground level of the rental unit;
"personal agriculture" means a use of land where an individual
cultivates edible plant crops for personal use or donation;
and
"plant crop" means any crop in its raw or natural state, which
comes from a plant that will bear edible fruits or vegetables.
It shall not include marijuana or any unlawful crops or
substances.
This bill would include legislative findings and declarations
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regarding the importance of small-scale, neighborhood-based food
enterprises.
COMMENT
1. Stated need for the bill
The author writes:
California took its first step toward enabling local
government zoning ordinances in 1863, when the state passed a
law granting San Francisco authority "to make all regulations
which may be necessary or expedient for the preservation of
the public health and the prevention of contagious diseases."
However, since these first zoning ordinances, the scope of
local zoning laws has increased to entail much more than
preservation of public health. Local zoning ordinances now
are often based on aesthetic preferences, maintaining property
values, and as some academic studies have suggested, more
recently adopted zoning laws, specifically zoning laws that
prohibit agriculture, were a strategy to keep people of low
socio-economic status out of neighborhoods.
AB 2561, The California Neighborhood Food Act [(Act)] seeks to
ensure the rights of individuals and groups to cultivate and,
in certain cases, sell edible plants even when local zoning
laws, private land covenants, or lease restrictions seek to
prohibit such activities. This Act 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.
By adding new provisions to the Government Code and the Civil
Code, the bill increases opportunities for growing fresh
produce in the following ways:
Tenants' rights: The bill would require that tenants be able
to grow produce on land they rent as long as it does not
interfere with other tenants' use of the property or create
hazards, with landlord approval. This bill would require a
landlord to permit a tenant to participate in personal
agriculture in portable containers approved by the landlord in
the tenant's private area, as defined, if certain conditions
are met.
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Homeowners' Association member rights: The bill would make it
illegal for a homeowners' association contract to prohibit the
use of private (not shared) property for growing produce and
having occasional on-site sales.
2. Prohibiting common interest development restrictions on
personal agricultural
This bill would prohibit common interest developments (CIDs)
from effectively prohibiting or unreasonably restricting
homeowners from using their backyard for personal agriculture
activities. However, this bill would not prescribe limitations
on CIDs restrictions on chemicals used on the homeowner's food
garden area.
Proponents of this bill assert that "[e]mpowering 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. This bill will increase access to fresh
produce for all Californians, regardless of their place of
residence and economic vulnerability. It will provide job
opportunities for many Californians. This bill also promotes
efficient and prudent use of water and land resources,
empowering Californians to prioritize food cultivation over
ornamental lawns and vacant lots."
In Nahrstedt v. Lakeside Village (1994) 8 Cal.4th 361, 372, the
California Supreme Court recognized the importance of allowing a
CID to regulate the uses of the development for the benefit of
the homeowners and stated that "[u]se restrictions are an
inherent part of any common interest development and are crucial
to the stable, planned environment of any shared ownership
arrangement. . . . The restrictions on the use of property in
any common interest development may limit activities conducted
in the common areas as well as in the confines of the home
itself." Although this bill would not prevent a CID from
restricting specified chemicals from being used in personal
agriculture areas, it would make any unreasonable provisions
unenforceable if they violated the public policy goals of
promoting gardens and community access to fresh fruits and
vegetables as declared in this bill. In this way, this bill
would balance the interests of the CID in limiting activities
within the CID, as long as those limitations did not
unreasonably interfere with the homeowner's right to grow food
created in this bill.
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3. Prohibiting restrictions on residential tenant personal
agriculture
This bill would similarly require landlords to allow tenants of
single family homes or duplexes to engage in "personal
agriculture" in portable containers approved by the landlord.
This bill would provide that a tenant's personal agriculture
activities may not interfere with maintenance of the property or
create any health or safety hazard and permit a landlord to
prohibit the use of synthetic chemicals, to charge for excess
water use or waste collection, and to periodically inspect the
personal agriculture activity.
Although commercial tenant-use restrictions in commercial
property are generally enforced, regardless of whether they are
unreasonable, residential tenants have stronger protections
regarding the use of the leased property. This bill would
provide additional tenant protection for growing edible plants
and fruit trees in containers on the property. However, this
bill also seeks to strike a reasonable balance of providing a
tenant access to edible gardening while providing the landlord
the ability to prohibit the use of specified chemicals for that
gardening, allowing the landlord to charge for excess water use
and waste collection, and authorizing inspection of the activity
upon prior tenant notice.
4. Opposition's concerns
The Community Association Institute (CAI), opposed unless
amended, asserts that amendments to this bill are necessary to
clarify the definition of "backyard" because "[p]eople may not
understand that the back yard that they see may, in fact, not be
theirs to use as it may be the HOA's "common area". Hence,
clarifying that the yard where the crops may be planted is the
"exclusive use back yard." CAI also contends that this bill
should be amended to incorporate container and chemical product
use restrictions for CIDs as the bill provides for apartments,
rather than have 50,000 HOAs attempt to promulgate these
restrictions. CAI also proposes a technical amendment to the
bill to correct an error. The Educational Community for
Homeowners, in support if amended, also requests that an HOA be
allowed to limit the use of chemical, or artificial pesticides
in order to avoid run-off into waters enjoyed by the association
or the community at large.
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5. Author's amendments
This bill was approved by the Senate Transportation and Housing
Committee on June 17, 2014. Due to procedural timing
constraints, the author agreed in that Committee to take the
following amendments in this Committee. The amendments also
include minor technical amendments.
Author's amendments :
1. On page 5, strike lines 35-37 and reletter the
subsequent subdivision
2. On page 6, lines 5-7, strike "the following definitions
shall apply: (1) "Personal" and insert ""personal""
3. On page 6, strike line 9
4. On page 6, lines 11-13, strike "does either of the
following: (1) Effectively" and insert "effectively"
5. On page 6, in line 14, remove and replace "back yard"
with "backyard"
6. On page 6, strike lines 15-17
7. On page 6, in line 34, remove and replace "front yard"
with "backyard"
Support : City Slicker Farms; Community Food and Justice
Coalition; Earth Law Center; Eastbay Area Reciprocity Network;
Ecological Farming Association; Growing Affordable Fresh Produce
for West Oakland; Phat Beets Produce; Planting Justice; San
Francisco Urban Agriculture Alliance; Santa Barbara Food
Alliance; Virtually Green
Opposition : California Apartment Association; Community
Association Institute
HISTORY
Source : Sustainable Economies Law Center
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Senate Committee on Transportation and Housing (Ayes 10, Noes 1)
Assembly Floor (Ayes 53, Noes 24)
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Assembly Committee on Local Government (Ayes 5, Noes 1)
Assembly Committee on Judiciary (Ayes 10, Noes 0)
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