BILL ANALYSIS
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: AB 210
SENATOR ALAN LOWENTHAL, CHAIRMAN AUTHOR: Hayashi
VERSION: 2/2/09
Analysis by: Mark Stivers FISCAL: No
Hearing date: June 16, 2009
SUBJECT:
Authority of local governments to adopt green building standards
DESCRIPTION:
This bill clarifies that cities and counties may amend state
green building standards if they make a finding that the
amendments are reasonably necessary because of local climatic,
geological, or topographical conditions.
ANALYSIS:
The California Building Standards Law establishes the California
Building Standards Commission (BSC) and the process for adopting
state building standards. Under this process, relevant state
agencies propose amendments to model building codes, which the
BSC must then adopt, modify, or reject. For example, the
Department of Housing and Community Development (HCD) is the
relevant state agency for residential building standards. The
Office of Statewide Health Planning and Development is
responsible for hospitals and clinics, and the Division of the
State Architect is the relevant agencies for schools and
emergency service buildings. Not all buildings fall under the
jurisdiction of a relevant state agency. Most commercial,
industrial, and manufacturing structures are considered "local
buildings," over which local governments may determine
applicable building standards.
Under current law, cities and counties may amend state building
standards if they make a finding that the amendments are
reasonably necessary because of local climatic, geological, or
topographical conditions.
This bill clarifies that cities and counties may amend state
AB 210 (HAYASHI) Page 2
green building standards if they make a finding that the
amendments are reasonably necessary because of local climatic,
geological, or topographical conditions.
COMMENTS:
1.Purpose of the bill . According to the author, with the
increased interest in green building design, some
jurisdictions have expressed a need for clarification that
they have the authority to adopt local green building
standards that are more stringent than those adopted by the
state. Such clarification in statute will significantly
reduce the need for legal review and related costs for local
jurisdictions concerned that such authority may not exist.
2.Current authority . Current law allows a city or county to
amend state building standards based on local climatic,
geological, or topographical conditions. A number of local
governments have already adopted their own green building
standards using this exception to the general preemption.
None of these local standards has been challenged to date.
Were a legal challenge to occur, it is very unlikely that the
case would center on the ability of cities and counties to
amend green building standards (the subject of this bill),
because there is no dispute. A green building standard is no
different from any other building standard, and local
authority to make changes or modifications is well
established. As a result, this bill makes explicit but does
not alter the ability of local governments to adopt green
building standards.
Were a legal challenge to a local green building standard to
be filed, the case would more likely center on the adequacy of
the findings generally or the "local" nature of the conditions
cited in the findings. While global warming, a frequent
reason for adopting local green building standards, is clearly
a "climatic" condition and has local impacts, the impacts are
not necessarily unique to a particular locality. At least one
Attorney General opinion, AG OP 55-157 (1972), however,
states, "It would therefore appear that 'local conditions' are
anything that the local board deems them to be and deems
serious enough to put in the public record as being a 'local
condition.'" If a court were to follow this line of
reasoning, then it is likely that the court would uphold a
local government's amendment of green building standards based
on local climatic conditions.
AB 210 (HAYASHI) Page 3
3.Previous legislation . AB 2939 (Hancock) of 2008 would have
allowed cities and counties to amend state green building
standards without having to make a finding based on local
climatic, geological, or topographical conditions but rather
with a finding that the amendment is "reasonably necessary to
mitigate or address environmental conditions and that the cost
of the modification is reasonable and will not unreasonably
impact housing affordability." In Governor Schwarzenegger's
veto message, he stated that the bill was overly far reaching
because it would have allowed local governments to make
wholesale changes to the state building code, even to
non-green building standards. The governor instead encouraged
the Legislature to work on legislation that "provides the
absolute clarity that local governments can strengthen the
state's green building standards while maintaining
California's rigorous uniform statewide health and safety
standards." This bill is an attempt to provide that clarity.
4.Current status of state green building standards . In July
2008 the BSC adopted the first set of green building standards
for California. HCD, the Division of the State Architect, the
Office of Statewide Health Planning and Development, and the
BSC itself developed these standards, which take effect August
1, 2009. Many of the standards, especially with respect to
non-residential construction, are voluntary. Those standards
that are mandatory in some cases reflect existing mandates.
In other words, this first round of proposed standards is not
especially strong. Now that this first set of standards is in
place, however, these agencies are working on a more stringent
set of standards to be adopted in 2010. Staff for the BSC
states that this second round will include a greater number of
mandated building features.
5.Double referral . The Senate Rules Committee has referred this
bill both to this committee and the Environmental Quality
Committee.
Assembly Votes:
Floor: 74-4
NR&W: 8-0
B&P: 11-0
POSITIONS: (Communicated to the Committee before noon on
AB 210 (HAYASHI) Page 4
Wednesday,
June 10, 2009)
SUPPORT: California Building Industry Association
(sponsor)
California State Council of Laborers (sponsor)
California State Pipe Trades Council (sponsor)
American Council of Engineering Companies of
California
Associated General Contractors
California Apartment Association
California Association of Realtors
California Business Properties Association
California Chamber of Commerce
California Forestry Association
California Manufacturers & Technology Association
City of Palm Desert
Elevator Constructors Union
International Association of Plumbing and
Mechanical Officials
Joint Labor Management Committee of the Forest
Products Industry
League of California Cities
South Bay Cities Council of Governments
State Association of Electrical Workers
Western States Council of Sheet Metal Workers
OPPOSED: None received.