BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |AB 1 |Hearing | 6/10/15 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |Brown |Tax Levy: |No | |----------+---------------------------------+-----------+---------| |Version: |12/1/14 |Fiscal: |No | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Weinberger | |: | | ----------------------------------------------------------------- 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 AB 1 (Brown) 12/1/14 Page 2 of ? 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: AB 1 (Brown) 12/1/14 Page 3 of ? 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 AB 1 (Brown) 12/1/14 Page 4 of ? 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. AB 1 (Brown) 12/1/14 Page 5 of ? -- END --