BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNANCE AND FINANCE
                         Senator Robert M. Hertzberg, Chair
                                2015 - 2016  Regular 

                              
          
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          |Bill No:  |AB 1                             |Hearing    | 6/10/15 |
          |          |                                 |Date:      |         |
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          |Author:   |Brown                            |Tax Levy:  |No       |
          |----------+---------------------------------+-----------+---------|
          |Version:  |12/1/14                          |Fiscal:    |No       |
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          |Consultant|Weinberger                                            |
          |:         |                                                      |
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                        LOCAL FINES DURING A DROUGHT EMERGENCY



          Prohibits a city or county from imposing a fine for a brown lawn  
          or failure to water a lawn during a state of emergency  
          proclaimed by the Governor due to drought. 


           Background and Existing Law

           The California Emergency Services Act grants the Governor the  
          power to declare a state of emergency in cases of extreme peril  
          to life, property, or state resources.  The Act grants the  
          Governor broad powers to deal with emergencies, including  
          suspending regulatory statutes, commandeering private property  
          or personnel, and making expenditures from available funds.

          On January 17, 2014, pursuant to his powers under state law,  
          including the California Emergency Services Act, Governor Brown  
          issued a proclamation of a state of emergency due to drought  
          conditions.  On April 1, 2015, Governor Brown issued an  
          executive order in accordance with the authority granted to him  
          by the Constitution and the Emergency Services Act.  Among its  
          many provisions intended to improve government response to the  
          drought and promote water conservation, the Governor's executive  
          order:
                 Directs the State Water Resources Control Board to  
               impose restrictions to achieve a statewide 25% reduction in  
               potable urban water usage through February 28, 2016, which  







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               will require water suppliers to California's cities and  
               towns to reduce usage as compared to the amount used in  
               2013. 

                 Directs the Department of Water Resources to lead a  
               statewide initiative, in partnership with local agencies,  
               to collectively replace 50 million square feet of lawns and  
               ornamental turf with drought tolerant landscapes.

          The police power is the inherent authority of sovereign  
          governments to regulate private behavior, consistent with  
          constitutional rights and procedures.  The California  
          Constitution delegates the police power to cities and counties  
          to "make and enforce within [their] limits all local, police,  
          sanitary, and other ordinances and regulations not in conflict  
          with general laws"  (Article XI, Section 7).  Courts have  
          interpreted the police power as including the power to regulate  
          the physical of appearance of the environment within a  
          community, including ordinances that enforce aesthetic  
          standards.

          Some California residents who have stopped watering their lawns  
          or allowed their lawns to go brown reportedly are being  
          subjected to fines imposed pursuant to local ordinances that  
          specify certain aesthetic standards for front yards.  In  
          response, advocates for water conservation want the Legislature  
          to prohibit local governments from imposing such fines during a  
          period of drought emergency declared by the Governor. 


           Proposed Law

           Assembly Bill 1 prohibits a city or county, during a period for  
          which the Governor has issued a proclamation of a state of  
          emergency under state law based on drought conditions, from  
          imposing a fine under any local maintenance ordinance or other  
          relevant ordinance for a failure to water a lawn or for having a  
          brown lawn.

          AB 1 directs that a violation of its provisions is not subject  
          to specified criminal penalties. 

          The bill contains legislative findings and declarations that the  
          bill's provisions:








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                 Further the policy expressed in the California  
               Constitution requiring the state's water resources to be  
               put to beneficial use.

                 Are a matter of statewide concern.


           State Revenue Impact

           No estimate.


           Comments

           1.  Purpose of the bill  .  Some local governments have adopted  
          ordinances that that specify the condition in which residents'  
          lawns must be kept and allow the local government to impose  
          fines for failure to maintain a lawn in a prescribed way,  
          including anything that is deemed to diminish the aesthetic  
          appeal of a front yard.  Fines can range from $100 a week to a  
          flat fee of $500.  When the Governor declares a drought  
          emergency, local ordinances that penalize residents who choose  
          to conserve water by not watering their lawns or letting their  
          lawns turn brown, directly conflict with the state's water  
          conservation interests.  Last year, the Legislature passed a  
          bill prohibiting a common-interest development from imposing a  
          fine or assessment against an owner for reducing or eliminating  
          watering of vegetation or lawns during a declared drought (AB  
          2100, Campos, Chapter 164, Statutes of 2014).  AB 1 extends this  
          common-sense policy to fines imposed by local governments during  
          a declared drought-emergency.

          2.   Open to interpretation  .  AB 1 specifically prohibits local  
          governments from imposing fines under "any local maintenance  
          ordinance or other relevant ordinance for a failure to water a  
          lawn or for having a brown lawn."  The bill does not define the  
          term "maintenance ordinance," which does not appear anywhere  
          else in state law.  By specifying that fines are prohibited only  
          if they are imposed under a specific type of ordinance, AB 1's  
          language leaves open the question of whether a local government  
          could justify imposing a fine for failing to water a lawn  
          pursuant to an ordinance that is not a "maintenance ordinance"  
          or "relevant" to a maintenance ordinance.  To avoid potential  
          misinterpretation, the Committee may wish to consider amending  








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          AB 1 to clarify that a local government may not impose a fine  
          under any ordinance for failing to water a lawn during a  
          drought-emergency.

          3.   Charter cities, too  ?  AB 1 contains language declaring that  
          the bill addresses a matter of statewide concern.  This language  
          is typically used to assert that a statute applies to charter  
          cities in addition to general law cities.  However, the bill  
          does not explicitly declare that it is intended to apply to  
          charter cities.  The Committee may wish to consider amending AB  
          1 to contain a more thorough declaration regarding the statewide  
          concern addressed by the bill and the Legislature's intent that  
          the bill should apply to charter cities.

          4.   Previous legislation  .  AB 1636 (Brown) of 2014 would have  
          prohibited a city or county from enforcing any law or ordinance  
          requiring a resident to water his or her lawn during a drought  
          emergency declared by the Governor.  The bill was referred to  
          the Assembly Local Government Committee, but was not heard at  
          the request of the author.


           Assembly Actions

           Assembly Local Government Committee:  9-0
          Assembly Floor:                    78-0


           Support and  
          Opposition   (6/4/15)


           Support  :  Apartment Association, California Southern Cities;  
          Apartment Association of Orange County; California Association  
          of Realtors; California Building Industry Association; City of  
          Encinitas; Coachella Valley Water District; Desert Water Agency;  
          East Bay Municipal Utility District; East Bay Rental Housing  
          Association; El Dorado Irrigation District; Municipal Water  
          District of Orange County; Nor Cal Rental Property Association;  
          North Valley Property Owners Association; San Diego County  
          Apartment Association; Santa Clara County Water District; Sierra  
          Club California; Matthew Villalva.

           Opposition  :  Unknown.








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