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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