BILL NUMBER: AB 2301 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 27, 2010
AMENDED IN ASSEMBLY APRIL 5, 2010
INTRODUCED BY Assembly Member Logue
FEBRUARY 18, 2010
An act to amend Section 51182 of the Government Code and
to amend Section 4291 of the Public Resources Code, relating to fire
protection. An act to add Section 4291.5 to the Public
Resources Code, relating to fire protection.
LEGISLATIVE COUNSEL'S DIGEST
AB 2301, as amended, Logue. Fire protection: public lands:
defensible space.
(1) Existing
Existing law requires that a person
who owns, leases, controls, operates, or maintains an occupied
dwelling or occupied structure in, upon, or adjoining a mountainous
area, forest-covered land, brush-covered land, grass-covered land, or
land that is covered with flammable material that is within a very
high fire hazard severity zone, as designated by a local agency, to
maintain a defensible space of 100 feet from each side and from the
front and rear of the structure. Existing law requires that
a person who owns, leases, controls, operates, or maintains
a building or structure in, upon, or adjoining a mountainous area,
forest-covered land, brush-covered land, grass-covered land, or land
that is covered with flammable material, within a state
responsibility area, to maintain a defensible space of 100 feet from
each side and from the front and rear of the structure. An insurance
company that insures an occupied dwelling or occupied structure is
authorized to require a greater distance, but this greater distance
is prohibited from extending beyond the property line unless allowed
by state law or a local ordinance, rule, or regulation.
This bill would provide that if the property is adjacent
to state public lands, a state public lands management agency would
be required to grant a right of entry boundary permit to a person
subject to the greater distance requirement of the insurance company
to enter land controlled by the state public lands management agency
for purposes of undertaking defensible space work, as defined. The
bill would impose conditions for purposes of this work and would
exempt the defensible space work and the permit from the California
Environmental Quality Act (CEQA) and the Z'berg-Nejedly Forest
Practice Act of 1973. Because a lead agency would be required to
determine the applicability of, and to give notice of, that
exemption, this bill would create a state-mandated local program
require a state public lands management agency, as
defined, to establish a discretionary permitting or approval process
containing specified elements, to consider an application from a
person to maintain defensible space on state public lands if that
person's defensible space requirement encroaches onto state public
lands. The bill would authorize a state public lands management
agency to impose conditions or limitations on maintenance of
defensible space or that minimize any other adverse impact to the
environment .
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4291.5 is added to the
Public Resources Code , to read:
4291.5. (a) For the purposes of this section, the following terms
shall apply:
(1) "Qualified organization" means a homeowners association, fire
safe council, or other bona fide organization dedicated to fire
protection and prevention, as determined by a state public lands
management agency.
(2) "State public lands" means lands owned in fee title by a state
public lands management agency.
(3) "State public lands management agency" means the Department of
Forestry and Fire Protection, Department of Parks and Recreation,
State Lands Commission, Department of Transportation, or Department
of Water Resources.
(b) Consistent with Section 51184 of the Government Code, a state
public lands management agency shall establish a discretionary
permitting and approval process to consider an application from a
person subject to subdivision (a) of Section 51182 of the Government
Code or Section 4291 to maintain defensible space on state public
lands if that person's defensible space requirement encroaches onto
state public lands.
(c) The permitting or approval process shall include, but not be
limited to, both of the following elements:
(1) A publicly available application posted on the agency's
Internet Web site. The agency may require that reasonable information
be submitted with the application.
(2) Timelines for the review and consideration of the application.
At a minimum, an agency shall determine whether an application is
complete within 30 calendar days of receipt. Once deemed complete, an
agency shall consider and act on the application within 45 days.
(d) A qualified organization acting on behalf of more than one
person subject to subdivision (a) of Section 51182 of the Government
Code or Section 4291 may apply for approval.
(e) The maintenance of the defensible space shall comply with
defensible space guidelines adopted by the State Board of Forestry
and Fire Protection or the Department of Parks and Recreation, and
Section 51184 of the Government Code.
(f) A state public lands management agency may require an
applicant pursuant to subdivision (b) to maintain liability or other
insurance or bonding in a form and amount determined by the agency.
The agency shall require an applicant to indemnify the state from any
and all actions or claims filed against the state as a direct or
indirect result of the issuance of a permit or approval.
(g) A state lands management agency may impose conditions or
limitations on the maintenance of defensible space pursuant to
Section 51184 of the Government Code or subdivision (i) of Section
15304 of Title 14 of the California Code of Regulations or that
minimize any other adverse impact to the environment, including, but
not limited to, wildlife habitat, water quality, and sensitive
species.
(h) In its review and consideration of an application pursuant to
subdivision (b), a state public lands management agency may consider
other flame ignition or flammability risk factors such as fuel
loading, slope, and the building materials of a structure or
dwelling, and the extent to which these factors may, individually or
cumulatively, present greater risks than vegetation or fuel on
adjacent state public lands.
SECTION 1. Section 51182 of the Government Code
is amended to read:
51182. (a) A person who owns, leases, controls, operates, or
maintains an occupied dwelling or occupied structure in, upon, or
adjoining a mountainous area, forest-covered land, brush-covered
land, grass-covered land, or land that is covered with flammable
material, which area or land is within a very high fire hazard
severity zone designated by the local agency pursuant to Section
51179, shall at all times do all of the following:
(1) Maintain defensible space of 100 feet from each side and from
the front and rear of the structure, but not beyond the property line
except as provided in paragraph (2). The amount of fuel modification
necessary shall take into account the flammability of the structure
as affected by building material, building standards, location, and
type of vegetation. Fuels shall be maintained in a condition so that
a wildfire burning under average weather conditions would be unlikely
to ignite the structure. This paragraph does not apply to single
specimens of trees or other vegetation that are well-pruned and
maintained so as to effectively manage fuels and not form a means of
rapidly transmitting fire from other nearby vegetation to a structure
or from a structure to other nearby vegetation. The intensity of
fuels management may vary within the 100-foot perimeter of the
structure, the most intense being within the first 30 feet around the
structure. Consistent with fuels management objectives, steps should
be taken to minimize erosion.
(2) A greater distance than that required under paragraph (1) may
be required by state law, local ordinance, rule, or regulation.
Clearance beyond the property line may only be required if the state
law, local ordinance, rule, or regulation includes findings that the
clearing is necessary to significantly reduce the risk of
transmission of flame or heat sufficient to ignite the structure, and
there is no other feasible mitigation measure possible to reduce the
risk of ignition or spread of wildfire to the structure. Clearance
on adjacent property shall only be conducted following written
consent by the adjacent landowner.
(3) An insurance company that insures an occupied dwelling or
occupied structure may require a greater distance than that required
under paragraph (1) if a fire expert, designated by the fire chief or
fire official from the authority having jurisdiction, provides
findings that the clearing is necessary to significantly reduce the
risk of transmission of flame or heat sufficient to ignite the
structure, and there is no other feasible mitigation measure possible
to reduce the risk of ignition or spread of wildfire to the
structure. The greater distance may not be beyond the property line
unless either of the following apply:
(A) The greater distance is allowed by state law, local ordinance,
rule, or regulation.
(B) The property is adjacent to state public lands, in which case
all of the following shall apply:
(i) The state public lands management agency shall grant a right
of entry boundary permit to a person subject to this subparagraph to
enter land controlled by the state public lands management agency for
purposes of undertaking defensible space work. The state public
lands management agency shall also grant this right of entry boundary
permit to a homeowners' association, other type of multidwelling
agency, local regional fire safe council, or other organized fire
protection and prevention entity to undertake defensible space work
for all residents who are subject to this subparagraph and who are
represented by that entity or organization. For purposes of this
subparagraph, "defensible space work" means the clearing that is
necessary to significantly reduce the risk of transmission of flame
or heat sufficient to ignite the structure.
(ii) The state shall require a person passing onto and conducting
defensible space work on state public lands to provide a liability
waiver, to ensure that the state is not liable for any injury
incurred during the work.
(iii) If the person subject to this section enters into a contract
with a third party to conduct the defensible space work, the
contractor shall maintain insurance, and if the resident is
undertaking that work himself or herself, the resident shall maintain
homeowners' or other appropriate insurance.
(iv) The person undertaking the defensible work on the public
lands shall be over 18 years of age.
(v) The defensible space work conducted pursuant to this
subparagraph, including the granting of a permit pursuant to this
subparagraph, is exempt from Division 21 (commencing with Section
21000) of the Public Resources Code and Chapter 8 (commencing with
Section 4511) of Division 4 of the Public Resources Code.
(4) Remove that portion of a tree that extends within 10 feet of
the outlet of a chimney or stovepipe.
(5) Maintain a tree, shrub, or other plant adjacent to or
overhanging a building free of dead or dying wood.
(6) Maintain the roof of a structure free of leaves, needles, or
other vegetative materials.
(7) Prior to constructing a new dwelling or structure that will be
occupied or rebuilding an occupied dwelling or occupied structure
damaged by a fire in that zone, the construction or rebuilding of
which requires a building permit, the owner shall obtain a
certification from the local building official that the dwelling or
structure, as proposed to be built, complies with all applicable
state and local building standards, including those described in
subdivision (b) of Section 51189, and shall provide a copy of the
certification, upon request, to the insurer providing course of
construction insurance coverage for the building or structure. Upon
completion of the construction or rebuilding, the owner shall obtain
from the local building official, a copy of the final inspection
report that demonstrates that the dwelling or structure was
constructed in compliance with all applicable state and local
building standards, including those described in subdivision (b) of
Section 51189, and shall provide a copy of the report, upon request,
to the property insurance carrier that insures the dwelling or
structure.
(b) A person is not required under this section to manage fuels on
land if that person does not have the legal right to manage fuels,
nor is a person required to enter upon or to alter property that is
owned by any other person without the consent of the owner of the
property.
(c) The Department of Forestry and Fire Protection shall develop,
periodically update, and post on its Internet Web site a guidance
document on fuels management pursuant to this chapter. The guidance
document shall include, but not be limited to, regionally appropriate
vegetation management suggestions that preserve and restore native
species, minimize erosion, minimize water consumption, and permit
trees near homes for shade, aesthetics, and habitat; and suggestions
to minimize or eliminate the risk of flammability of nonvegetative
sources of combustion such as woodpiles, propane tanks, decks, and
outdoor lawn furniture.
SEC. 2. Section 4291 of the Public Resources
Code is amended to read:
4291. (a) A person who owns, leases, controls, operates, or
maintains a building or structure in, upon, or adjoining a
mountainous area, forest-covered lands, brush-covered lands,
grass-covered lands, or land that is covered with flammable material,
shall at all times do all of the following:
(1) Maintain defensible space of 100 feet from each side and from
the front and rear of the structure, but not beyond the property line
except as provided in paragraph (2). The amount of fuel modification
necessary shall take into account the flammability of the structure
as affected by building material, building standards, location, and
type of vegetation. Fuels shall be maintained in a condition so that
a wildfire burning under average weather conditions would be unlikely
to ignite the structure. This paragraph does not apply to single
specimens of trees or other vegetation that are well-pruned and
maintained so as to effectively manage fuels and not form a means of
rapidly transmitting fire from other nearby vegetation to a structure
or from a structure to other nearby vegetation. The intensity of
fuels management may vary within the 100-foot perimeter of the
structure, the most intense being within the first 30 feet around the
structure. Consistent with fuels management objectives, steps should
be taken to minimize erosion. For the purposes of this paragraph,
"fuel" means any combustible material, including petroleum-based
products and wildland fuels.
(2) A greater distance than that required under paragraph (1) may
be required by state law, local ordinance, rule, or regulation.
Clearance beyond the property line may only be required if the state
law, local ordinance, rule, or regulation includes findings that the
clearing is necessary to significantly reduce the risk of
transmission of flame or heat sufficient to ignite the structure, and
there is no other feasible mitigation measure possible to reduce the
risk of ignition or spread of wildfire to the structure. Clearance
on adjacent property shall only be conducted following written
consent by the adjacent landowner.
(3) An insurance company that insures an occupied dwelling or
occupied structure may require a greater distance than that required
under paragraph (1) if a fire expert, designated by the director,
provides findings that the clearing is necessary to significantly
reduce the risk of transmission of flame or heat sufficient to ignite
the structure, and there is no other feasible mitigation measure
possible to reduce the risk of ignition or spread of wildfire to the
structure. The greater distance may not be beyond the property line,
unless either of the following apply:
(A) The greater distance is allowed by state law, local ordinance,
rule, or regulation.
(B) The property is adjacent to state public lands, in which case
all of the following shall apply:
(i) The state public lands management agency shall grant a right
of entry boundary permit to a person subject to this subparagraph to
enter land controlled by the state public lands management agency for
purposes of undertaking defensible space work. The state public
lands management agency shall also grant a right of entry boundary
permit to a homeowners' association, other type of multidwelling
agency, local regional fire safe council, or other organized fire
protection and prevention entity to undertake defensible space work
for all residents who are subject to this subparagraph and who are
represented by that entity or organization. For purposes of this
subparagraph, "defensible space work" means the clearing that is
necessary to significantly reduce the risk of transmission of flame
or heat sufficient to ignite the structure.
(ii) The state shall require a person passing onto and conducting
defensible space work on state public lands to provide a liability
waiver, to ensure that the state is not liable for an injury incurred
during the work.
(iii) If the person subject to this section enters into a contract
with a third party to conduct the defensible space work, the
contractor shall maintain insurance, and if the resident is
undertaking the defensible space work himself or herself, the
resident shall maintain homeowners' or other appropriate insurance.
(iv) The person undertaking the defensible space work on the
public lands shall be over 18 years of age.
(v) The defensible space work conducted pursuant to this
subparagraph, including the granting of a permit pursuant to this
subparagraph, is exempt from Division 21 (commencing with Section
21000) and Chapter 8 (commencing with Section 4511).
(4) Remove that portion of a tree that extends within 10 feet of
the outlet of a chimney or stovepipe.
(5) Maintain a tree, shrub, or other plant adjacent to or
overhanging a building free of dead or dying wood.
(6) Maintain the roof of a structure free of leaves, needles, or
other vegetative materials.
(7) Prior to constructing a new building or structure or
rebuilding a building or structure damaged by a fire in an area
subject to this section, the construction or rebuilding of which
requires a building permit, the owner shall obtain a certification
from the local building official that the dwelling or structure, as
proposed to be built, complies with all applicable state and local
building standards, including those described in subdivision (b) of
Section 51189 of the Government Code, and shall provide a copy of the
certification, upon request, to the insurer providing course of
construction insurance coverage for the building or structure. Upon
completion of the construction or rebuilding, the owner shall obtain
from the local building official, a copy of the final inspection
report that demonstrates that the dwelling or structure was
constructed in compliance with all applicable state and local
building standards, including those described in subdivision (b) of
Section 51189 of the Government Code, and shall provide a copy of the
report, upon request, to the property insurance carrier that insures
the dwelling or structure.
(b) A person is not required under this section to manage fuels on
land if that person does not have the legal right to manage fuels,
nor is a person required to enter upon or to alter property that is
owned by any other person without the consent of the owner of the
property.
(c) (1) Except as provided in Section 18930 of the Health and
Safety Code, the director may adopt regulations exempting a structure
with an exterior constructed entirely of nonflammable materials, or,
conditioned upon the contents and composition of the structure, the
director may vary the requirements respecting the removing or
clearing away of flammable vegetation or other combustible growth
with respect to the area surrounding those structures.
(2) An exemption or variance under paragraph (1) shall not apply
unless and until the occupant of the structure, or if there is not an
occupant, the owner of the structure, files with the department, in
a form as the director shall prescribe, a written consent to the
inspection of the interior and contents of the structure to ascertain
whether this section and the regulations adopted under this section
are complied with at all times.
(d) The director may authorize the removal of vegetation that is
not consistent with the standards of this section. The director may
prescribe a procedure for the removal of that vegetation and make the
expense a lien upon the building, structure, or grounds, in the same
manner that is applicable to a legislative body under Section 51186
of the Government Code.
(e) The Department of Forestry and Fire Protection shall develop,
periodically update, and post on its Internet Web site a guidance
document on fuels management pursuant to this chapter. The guidance
document shall include, but not be limited to, regionally appropriate
vegetation management suggestions that preserve and restore native
species, minimize erosion, minimize water consumption, and permit
trees near homes for shade, aesthetics, and habitat; and suggestions
to minimize or eliminate the risk of flammability of nonvegetative
sources of combustion such as woodpiles, propane tanks, decks, and
outdoor lawn furniture.
(f) As used in this section, "person" means a private individual,
organization, partnership, limited liability company, or corporation.
SEC. 3. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because a local agency or school district has the
authority to levy service charges, fees, or assessments sufficient to
pay for the program or level of service mandated by this act, within
the meaning of Section 17556 of the Government Code.