BILL ANALYSIS                                                                                                                                                                                                    Ķ





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular Session


          AB 349 (Gonzalez)
          Version: June 17, 2015
          Hearing Date: July 14, 2015
          Fiscal: No
          Urgency: Yes
          TH   


                                        SUBJECT
                                           
             Common Interest Developments: Property Use And Maintenance

                                      DESCRIPTION  

          This bill would render void and unenforceable any provision of  
          the governing documents or architectural or landscaping  
          guidelines or policies of a homeowners association that  
          prohibits the use of artificial turf or any other synthetic  
          surface that resembles grass.  This bill would also prohibit a  
          homeowners association from requiring an owner of a separate  
          interest to remove or reverse water-efficient landscaping  
          measures, installed in response to a declaration of a state of  
          emergency, upon the conclusion of the state of emergency. 

                                      BACKGROUND  

          California is currently in its fourth year of drought, with rain  
          and snowfall -- the primary sources of water -- well below  
          normal levels.  The resulting water shortage, as well as  
          California's growing population and the effects of long-term  
          climate change, have put pressure on the state's water storage  
          and delivery system, contributing to California's current water  
          crisis.  On January 17, 2014, Governor Brown proclaimed a State  
          of Emergency due to the ongoing drought, and directed state  
          officials to take all necessary actions to prepare for drought  
          conditions, including calling on all Californians to voluntarily  
          reduce their water usage by 20 percent.  On April 1, 2015, for  
          the first time in state history, the Governor ordered mandatory  
          water reductions in cities and towns across California to reduce  
          overall water usage by 25 percent.  (See Executive Order  








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          B-29-15.)

          According to the State Water Resources Control Board (Board),  
          outdoor watering of lawns and landscaping accounts for 50 to 70  
          percent of all urban water consumption in the state.  In March  
          of this year, the Board ordered every water agency in the state  
          to restrict how often customers can water their landscaping, and  
          to ban landscape irrigation on rainy days or within 48 hours of  
          measurable rain.  The Board's order extended a number of other  
          drought-related conservation rules adopted last year, including  
          a statewide ban on hosing off driveways and decks and mandatory  
          reporting by water agencies of their conservation progress.   
          (Matt Weiser, California Restricts Yard Watering as Drought  
          Persists, Sacramento Bee (Mar. 17, 2015)   
          [as of Jul. 4, 2015].)

          This bill would further respond to the drought by rendering  
          unenforceable any restrictions imposed by a homeowners  
          association that prohibit, or have the effect of prohibiting,  
          the use of artificial turf or other synthetic surfaces that  
          resembles grass in the development.  This bill would also  
          prohibit a homeowners association from requiring the removal of  
          water-efficient landscaping measures adopted in response to a  
          declaration of a state of emergency.

                                CHANGES TO EXISTING LAW
           
           Existing law  finds and declares, as the policy of this state,  
          that the management of urban water demands and the efficient use  
          of water shall be actively pursued to protect both the people of  
          the state and their water resources.  (Wat. Code Sec. 10610.4.)

           Existing law  requires local agencies to adopt water efficient  
          landscape ordinances, as specified.  (Gov. Code Sec. 65595.)
           
          Existing law  , the Davis-Stirling Common Interest Development  
          Act, establishes rules and regulations governing the operation  
          of common interest developments (CIDs) and the respective rights  
          and duties of homeowners associations (HOAs) and their 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  







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          of the 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.)

           Existing law  renders void and unenforceable any provision of the  
          governing documents or architectural or landscaping guidelines  
          or policies of an HOA that 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  
            as a replacement of existing turf; or
           has the effect of prohibiting or restricting compliance with a  
            water-efficient landscape ordinance or regulation or  
            restriction on the use of water.  (Civ. Code Sec. 4735(a).)
           Existing law  provides that an HOA may apply landscaping rules  
          established in its governing documents that do not conflict with  
          other law, as specified.  (Civ. Code Sec. 4735(b).)

           Existing law  prohibits an HOA from imposing a fine or assessment  
          against an owner of a separate interest for reducing or  
          eliminating the watering of vegetation or lawns during any  
          period for which the Governor has declared a state of emergency  
          due to drought or a local government has declared a local  
          emergency due to drought.  (Civ. Code Sec. 4735(c).)

           This bill  would render void and unenforceable any provision of  
          the governing documents or architectural or landscaping  
          guidelines or policies of an HOA that prohibits, or includes  
          conditions that have the effect of prohibiting, the use of  
          artificial turf or any other synthetic surface that resembles  
          grass.

           This bill  would provide that the owner of a separate interest  
          upon which water-efficient landscaping measures have been  
          installed in response to a declaration of a state of emergency  
          shall not be required by an HOA to reverse or remove the  
          water-efficient landscaping measures upon the conclusion of the  
          state of emergency.

           This bill  would make related findings and declarations.
          







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                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author:

            California is suffering from a prolonged and unprecedented  
            drought.  The Governor is mandating a 25 [percent] statewide  
            reduction in water use.  The State Water Resources Control  
            Board has adopted emergency mandatory water use restriction  
            regulations, which identify very specific per capita daily  
            water use targets for every community in California, ranging  
            up to a mandated 36 [percent] reduction for many communities  
            in the state.

            When AB 2104 was legislated in 2014 to clarify that a  
            homeowners' association's governing documents cannot prohibit  
            a homeowner from installing low water-using plants or  
            complying with local water savings ordinances, California was  
            also in a drought.  Today, as our state attempts to advance  
            the water use efficiency ethic and the tools available to  
            reduce per capita water use, it's appropriate to focus on  
            outdoor irrigation, which can account for 50 [percent] or more  
            of a home's total water consumption.

            AB 349 would make the governing documents of a common interest  
            development void and unenforceable if they prohibit the use,  
            or include conditions that effectively prohibit the use, of  
            artificial turf or any other synthetic surface that resembles  
            grass.

           2.Alternative Water Conservation Measures
           
          The Coastal Environmental Rights Foundation (CERF), writing in  
          support, states:

            CERF is pleased to support AB 349, which would allow  
            homeowners governed by homeowner associations the flexibility  
            to replace water-intensive lawns with synthetic turf, rather  
            than restrict their options to outdated and irresponsible  
            landscaping requirements.  We find it unfortunate that so many  
            HOAs continue to deny the dire and continuing drought  
            conditions throughout California.  The reluctance of these  
            organizations to make appropriate policy changes, and to  
            instead double down on enforcement of ludicrous cosmetic  







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            standards that would exacerbate our current crisis, must be  
            met forcefully and head-on.  This vision of California  
            domestic life that so blatantly relies on the presence of  
            unsustainable and non-native lawns, and is based on the myth  
            of endless cheap water, is in fact more artificial than the  
            water-wise lawn covering this legislation would promote.

          While this bill would, indeed, provide an avenue for homeowners  
          within common interest developments (CIDs) to replace  
          water-intensive landscaping with water-efficient landscaping,  
          staff notes that recent bills passed by the Legislature already  
          provide CID homeowners with this option.  AB 2104 (Gonzalez, Ch.  
          421, Stats. 2014), for example, rendered unenforceable any  
          provision of a homeowner association's (HOA's) governing  
          documents or architectural or landscaping guidelines or policies  
          that had the effect of prohibiting the replacement of existing  
          turf with low-water using plants.  Somewhat relatedly, AB 2100  
          (Campos, Ch. 164, Stats. 2014) prohibited homeowner associations  
          from imposing fines or assessments against homeowners for  
          reducing or eliminating the watering of vegetation or lawns  
          during any period for which the Governor or a local government  
          has declared a state of emergency due to drought conditions.   
          Together with existing law that restricts HOAs from prohibiting  
          compliance with local water-efficient landscaping ordinances,  
          these and similar bills already grant homeowners the power to  
          remove water-intensive landscaping, and replace it with water  
          efficient and drought tolerant landscaping.  This bill would,  
          therefore, augment a homeowner's existing turf replacement  
          options by also allowing the homeowner to install artificial  
          turf and other synthetic surfaces.

           3.Opposition's Concerns
            
           The Educational Community for Homeowners (ECHO), in opposition,  
          raises several concerns with this bill.  They state:

            Among ECHO's many concerns with AB 349 is the urgency language  
            that states "While in the middle of a water shortage crisis,  
            homeowner associations are not allowing homeowners to make  
            voluntary sacrifices and are still forcing them to maintain  
            grass lawns, and fining them if they are out of compliance."   
            This statement is inaccurate.  Homeowner associations are  
            allowing homeowners to make voluntary sacrifices and have no  
            control over many of those sacrifices such as collecting  
            shower water to reuse to water potted plants-to suggest that  







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            associations control a homeowner's voluntary sacrifices is  
            absurd.  While there may have been some associations that have  
            not allowed the installation of synthetic turf, this is not  
            the rule in all associations and given recent legislation  
            signed by Governor Brown requiring associations to allow the  
            installation of low-water using plants, the statement that  
            associations are not allowing homeowners to make voluntary  
            sacrifices and forcing owners to maintain grass lawns is  
            inaccurate and inflammatory.  ECHO requests the language be  
            amended out of the bill.

          To address this concern, the author offers the following  
          amendments that would rephrase this bill's urgency justification  
          to specifically address the issue of installing artificial grass  
          in a common interest development.

             Author's Amendments  :

            On page 4, lines 29 and 30, strike "and are still forcing them  
            to maintain grass lawns" and insert "by installing artificial  
            grass"

            On page 4, line 30, following "and" insert "are"

            On page 4, line 33, following "conservation" insert "by  
            installing artificial grass"

          ECHO also raises environmental and public health concerns  
          related to the installation of artificial turf, including the  
          "possible unknown health impacts that could be caused by  
          synthetic turf," and "concerns that the end of the life of  
          synthetic turf will be in landfills."  The Community  
          Associations Institute's California Legislative Action  
          Committee, while not taking a formal position on the bill, also  
          raises concerns about potential health hazards with the use of  
          artificial turf in residential communities, as well as other  
          implementation concerns, such as the possibility that this bill  
          might amount to a "statutory endorsement of a private industry  
          product."

          Given the likelihood that some homeowners associations may  
          choose to prohibit the installation of artificial turf for  
          health or environmental reasons, the Committee may want to  
          consider the appropriateness of allowing individual homeowners  
          to override such community-based determinations.







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            4.Local Control
           
           In California, common interest developments (CIDs) are governed  
          by the Davis-Stirling Common Interest Development Act.  Owners  
          of separate property in CIDs have an undivided interest in the  
          common property of the development and are subject to the CID's  
          covenants, conditions, and restrictions.  CIDs are also governed  
          by a homeowners association, which is run by volunteer directors  
          that may or may not have prior experience managing an  
          association.  The Court of Appeal, Fourth Appellate District,  
          previously observed that:

            [t]he homeowners associations function almost "as a second  
            municipal government, regulating many aspects of [the  
            homeowners'] daily lives."  "[U]pon analysis of the  
            association's functions, one clearly sees the association as a  
            quasi-government entity paralleling in almost every case the  
            powers, duties, and responsibilities of a municipal  
            government.  As a 'mini-government,' the association provides  
            to its members, in almost every case, utility services, road  
            maintenance, street and common area lighting, and refuse  
            removal.  In many cases, it also provides security services  
            and various forms of communication within the community.   
            There is, moreover, a clear analogy to the municipal police  
            and public safety functions. . . ."  In short, homeowners  
            associations, via their enforcement of the CC&R's, provide  
            many beneficial and desirable services that permit a common  
            interest development to flourish.  (Villa Milano Homeowners  
            Ass'n v. Il Davorge (2000) 84 Cal.App.4th 819, 836 [citations  
            omitted].)

          While the Legislature has acted in the past to limit the degree  
          of local control homeowner associations (HOAs) can exercise,  
          including as it pertains to landscaping restrictions, past  
          efforts to prohibit HOAs from restricting the installation of  
          artificial turf have been vetoed by the Governor over concerns  
          about undermining local control.  In 2010, the Legislature  
          passed AB 1793 (Saldaņa, 2010), a bill that would have rendered  
          void and unenforceable any provision of the governing documents  
          or architectural or landscaping guidelines or policies of a  
          homeowner association that prohibited the use of artificial turf  
          or any other synthetic surface that resembles grass.  That bill  







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          was vetoed by Governor Schwarzenegger, whose veto message stated  
          the following:

            CIDs provide a system of self-governance through a community  
            association, responsible for managing, maintaining, and  
            repairing the common areas, and have the authority to enforce  
            special rules.  Decisions such as these regarding the use of  
            artificial turf can be made by the homeowners and amended into  
            their governing documents.  For this reason I cannot sign this  
            bill.

          A year later, the Legislature passed SB 759 (Lieu, 2011), which  
          was substantially similar to AB 1793 and this bill.  Governor  
          Brown vetoed that bill, stating similarly:

            Under this bill, homeowners associations that govern Common  
            Interest Developments would be forced to approve the  
            installation of Astro Turf.  The decision about choosing  
            synthetic turf instead of natural vegetation should be left to  
            individual homeowners associations, not mandated by state law.  
             For this reason, I am returning this bill.

          It is unclear whether the current water crisis in California  
          will cause the Governor to evaluate the immediate bill in a  
          different light.


           Support  :  California Association of Realtors; California  
          Landscape Contractors Association; California Municipal  
          Utilities Association; Coachella Valley Water District; Coastal  
          Environmental Rights Foundation; Metropolitan Water District of  
          Southern California; San Diego Coastkeeper; Southern California  
          Water Committee

           Opposition :  Educational Community for Homeowners

                                        HISTORY
           
           Source  :  San Diego County Water Authority

           Related Pending Legislation  :

          SB 47 (Hill, 2015) would, among other things, require the Office  
          of Environmental Health Hazard Assessment, in consultation with  
          the Department of Resources Recycling and Recovery, the State  







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          Department of Public Health, and the Department of Toxic  
          Substances Control, to prepare a study analyzing synthetic turf  
          for potential adverse health impacts by July 1, 2017.  This bill  
          would require the study to include certain information,  
          including a hazard analysis of exposure to the chemicals that  
          may be found in synthetic turf, and would prohibit a public or  
          private school or local government, until January 1, 2018, from  
          installing a new field or playground surface made from synthetic  
          turf unless specified conditions are met.  This bill is pending  
          in the Senate Appropriations Committee.

          SB 584 (Nguyen, 2015) would exempt the resurfacing of a city or  
          county park from the requirements of the California  
          Environmental Quality Act, including changing a grass field to a  
          baseball field or to an artificial turf field.  This bill is  
          pending in the Senate Environmental Quality Committee.

          AB 1164 (Gatto, 2015) would prohibit a city, including a charter  
          city, a county, or a city and county, from enacting any  
          ordinance or regulation, or enforcing any existing ordinance or  
          regulation, that prohibits the installation of synthetic grass  
          or artificial turf on residential property.  This bill is  
          pending in the Senate Governance and Finance Committee.
           Prior Legislation  :

          SB 759 (Lieu, 2011), which was substantially similar to this  
          bill, would have rendered void and unenforceable any provision  
          of the governing documents or architectural or landscaping  
          guidelines or policies of a homeowners association that  
          prohibited the use of artificial turf or any other synthetic  
          surface that resembles grass.  This bill was vetoed by Governor  
          Brown.

          AB 1793 (Saldaņa, 2010) which was substantially similar to this  
          bill, would have rendered void and unenforceable any provision  
          of the governing documents or architectural or landscaping  
          guidelines or policies of a homeowners association that  
          prohibited the use of artificial turf or any other synthetic  
          surface that resembles grass.  This bill was vetoed by Governor  
          Schwarzenegger.

           Prior Vote  :

          Senate Transportation and Housing Committee (Ayes 11, Noes 0)
          Assembly Floor (Ayes 73, Noes 3)







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          Assembly Housing and Community Development Committee (Ayes 7,  
          Noes 0)

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