BILL ANALYSIS �
AB 2231
Page 1
ASSEMBLY THIRD READING
AB 2231 (Fuentes)
As Amended May 31, 2012
Majority vote
LOCAL GOVERNMENT 7-0 APPROPRIATIONS 12-0
-----------------------------------------------------------------
|Ayes:|Smyth, Alejo, Bradford, |Ayes:|Fuentes, Blumenfield, |
| |Campos, Davis, Hueso, | |Bradford, Charles |
| |Norby | |Calderon, Campos, Davis, |
| | | |Gatto, Ammiano, Hill, |
| | | |Lara, Mitchell, Solorio |
-----------------------------------------------------------------
LOCAL GOVERNMENT 6-0
-----------------------------------------------------------------
|Ayes:|Smyth, Bradford, Davis, | | |
| |Hueso, Knight, Norby | | |
-----------------------------------------------------------------
SUMMARY : Prohibits the repeal of a local ordinance placing
responsibility for sidewalk repair on a city, county, or city
and county unless the repeal is subsequently ratified by a
majority vote of the public. Specifically, this bill :
1)Requires that if a city, county, or city and county
(hereinafter, city or county) has an ordinance requiring that
city or county to repair sidewalks, a repeal of that ordinance
shall become effective only if the repealing ordinance is
approved by a majority of voters in a consolidated or general
election.
2)Makes findings and declarations that these provisions
constitute a matter of statewide concern, and shall therefore
apply to charter cities and charter counties. Such provisions
shall supersede any inconsistent provisions in the charter of
any city or county.
EXISTING LAW :
1)Requires the owners of lots or portions of lots fronting on
any portion of a public street or place to maintain any
AB 2231
Page 2
sidewalk in such condition that the sidewalk will not endanger
persons or property and maintain it in a condition that will
not interfere with the public convenience in the use of those
works or areas, except as to those conditions created or
maintained by persons other than the owner.
2)Requires the superintendent of streets, as defined, to provide
specified notice to the owner or person in possession of the
property fronting on that portion of the sidewalk out of
repair or pending reconstruction, to repair the sidewalk.
Under existing law, if the repair is not commenced within two
weeks after the notice has been provided, the superintendent
of streets shall make the repair and the cost of the repair
shall be imposed as a lien on the property.
3)Requires voter approval in order for a number of actions to
take place, including:
a) An amendment to the Constitution;
b) The establishment or increase in various types of local
taxes or fees;
c) The issuance of certain bonds;
d) The establishment of certain special districts; and,
e) The sale of a public utility.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, if the Commission on State Mandates determines that
this bill is a reimbursable mandate, the state will be liable
for the costs of the election and sidewalk repairs required to
be made between the decision to seek the election and the actual
election date.
COMMENTS : This bill would prohibit the repeal of a local
ordinance requiring a city or county, including charter cities
and charter counties, to repair sidewalks unless the repeal is
ratified by a majority vote of the public before it takes
effect. This could potentially prevent cities like Los Angeles
with such ordinances from shifting financial responsibility for
sidewalk repairs onto adjacent property owners should the city
council vote to do so. This measure is author-sponsored.
AB 2231
Page 3
Under current law, the responsibility for repairing sidewalks
resides with the owner of the adjoining property, unless the
dangerous condition was created by another person. The
locality's superintendent of streets is empowered to notice the
adjoining property owner of the damage, and if it remains
unrepaired after two weeks, the city or county may commence
repairs and impose the cost as a lien on the property. Legal
liability for injuries caused by a broken sidewalk will differ
based on the individual circumstances.
The author states that "in October 2011, the Los Angeles City
Council angered homeowners by considering a plan to repeal a
1974 ordinance that made the city responsible for sidewalk
repair. For the last 30 years, the City assumed responsibility
for most sidewalk repairs, but has not maintained the sidewalks
or the trees. Almost half of L.A.'s sidewalks are in some state
of disrepair, mostly due to tree roots pushing through concrete
and causing cracks."
The author's office has identified seven cities that it believes
have sidewalk ordinances that may be affected by the provisions
of this bill: Los Angeles, Oakland, Berkeley, Half Moon Bay,
Placentia, Burlingame, and Redlands.
According to a November 2011 Los Angeles Times article, the City
of Los Angeles voted to assume responsibility for sidewalk
repair in 1973, allocating $2 million for the work. Federal
money for that work ran out in 1976. Since 2000, the city has
spent about $95 million to replace 550 miles of sidewalk.
According to an October 20, 2011, report by the Daily News, the
City of Los Angeles has nearly 11,000 miles of sidewalks, about
4,700 miles of which still need repair. The Los Angeles Times
reports that it can cost roughly $250,000 to $300,000 to repair
a mile of sidewalk.
According to a Daily News article dated October 20, 2011,
between "$4 million and $6 million is spent �by the City of Los
Angeles] every year on liability claims, and the total cost
estimate to repair the sidewalks �in Los Angeles] is between
$1.2 billion and $1.5 billion." A bond measure to fix the
city's sidewalks was put before the voters in 1998, but was
rejected. A May 2010 article by the Los Angeles Times stated
that "the city spends $3 million to $5 million a year" to defend
AB 2231
Page 4
or settle cases arising from sidewalk-related "trip and fall"
injuries.
Beginning in 2010, the Los Angeles City Council began
considering a variety of proposals for addressing the backlog of
broken sidewalks, including a requirement on home owners to make
repairs, as well as requiring repairs as a condition to the
close of escrow when a home is being sold, and continuing the
current policy of making temporary repairs using asphalt.
According to the author's office, the city council has not yet
taken action on this matter, but public discussion and debate
over the matter continue.
An earlier version (February 24, 2012) of this bill was heard in
the Assembly Local Government Committee on April 18, 2012, where
it was approved on a 7-0 vote. That version shifted financial
responsibility and legal liability for sidewalk repairs to the
relevant locality while prohibiting special assessments for
costs, but contained no voter ratification requirement. After
being amended on April 23 to delete the shift in legal liability
to local governments, and further amended on May 25 to replace
the shift in financial responsibility with the voter
ratification requirement, the measure passed out of the Assembly
Appropriations Committee suspense file. The measure later
failed passage on the Assembly Floor on May 30, 2012. After
reconsideration was granted, the bill was amended to remove the
prohibition on assessment and re-referred back to the Assembly
Local Government Committee pursuant to Assembly Rule 77.2.
According to the author, "AB 2231 simply ensures that the public
has a say if �c]ities or �c]ounties are trying to change their
ordinances on sidewalk repair and make homeowners foot the bill.
Particularly during difficult economic times, it seems that
local governments are putting an undue burden on homeowners, by
trying to pass on the financial responsibility for damage caused
by trees that were often planted by the government."
The California Association of Realtors supported an earlier
version of the measure, contending that "California's older
neighborhoods are suffering from high levels of sidewalk
disrepair due to trees planted by local governments?AB 2231
(Fuentes) rightfully stops local governments from shirking
responsibility for these sidewalks and protects property owners
from huge repair and legal costs for damages they did not
AB 2231
Page 5
produce."
The League of California Cities and the California State
Association of Counties oppose the current version of the bill
primarily because of its impact on local financial
decision-making: "Local governments make every attempt to fund
sidewalk repair, and have used a variety of funds to pay for
sidewalk repair including redevelopment funds, federal Community
Development Block Grants, gasoline tax revenues, and Safe Routes
to Schools programs. Unfortunately, all of these funds are
either obsolete or in jeopardy of significant cuts. If cities
and counties are unable to find another solution, which
sometimes may include updating an ordinance or asking property
owners to share the cost of repair, sidewalks will simply remain
in a state of disrepair?The ability for city councils and county
boards of supervisors to decide how best to balance
infrastructure needs is absolutely critical given shrinking
resources available to local governments."
The City of Los Angeles opposes the bill in its current form,
stating "�s]idewalk repair is clearly a matter of local concern
and should remain so. This measure disrupts the local
legislative process and substitutes the state's legislative
interests. The City of Los Angeles has a deficit of $238
million and its budget is already extremely limited?While
well-intentioned, AB 2231 would tie our hands by making it
difficult for us to address the ongoing issue of deferred
maintenance on sidewalks by enacting unnecessary restrictions in
state law."
It should be noted that, because the voter ratification required
by this bill applies only to the repeal of a sidewalk repair
ordinance, amendments to an existing ordinance that fall short
of outright or constructive repeal may not require voter
approval.
The Legislature may wish to ask the author to address the policy
justification for imposing a voter ratification requirement on
what has traditionally been a matter of local concern.
As noted above, California requires voter approval of
legislative action in limited cases, such as constitutional
amendments, creation or increase of certain taxes or fees, bond
issuances, establishment of certain special districts, and the
AB 2231
Page 6
sale of a public utility. The Legislature also previously
considered a measure AB 2892 (Swanson) in 2008 that would have
imposed a two-thirds voter ratification requirement on any state
decision to spray an aerial pesticide in an urban area. The
Assembly Elections and Redistricting Committee analysis for that
bill noted that "�s]ubjecting rational government action to a
direct vote of the people will make it very difficult to respond
in a timely manner. It will also set a legislative precedent
that could lead to other direct democracy decisionmaking."
The Legislature may wish to discuss whether or not the
imposition of a local ratification requirement for sidewalk
repair is in keeping with its understanding of the municipal
affairs doctrine, and whether or not it sets a precedent for
imposing similar requirements in other areas of local
decisionmaking.
In 2008, the Assembly Local Government Committee heard AB 1985
(Strickland), which would have repealed current laws regarding
sidewalk repairs, and held liable the owner of the property on
which the sidewalk is located for all repairs and maintenance of
the sidewalk. That bill failed passage (2-5) in the Committee
on April 9, 2008.
This bill is keyed a state mandate which means that if the
Commission on State Mandates deems this a reimbursable mandate,
then the state could be responsible for the local election costs
associated with this bill.
Support arguments: According to the California Business
Properties Association, "AB 2231 will simply assure that before
a local government can shift the responsibility onto private
property owners, those that are being asked to bear the new
costs of liability, have a chance to voice their opinion about
the shift in policy."
Opposition arguments: According to the League of California
Cities, "�t]his bill creates a dangerous precedent, undermines
the role of city councils and county boards of supervisors, and
creates a disincentive for local governments to assist with the
costs of sidewalk repair."
Analysis Prepared by : Hank Dempsey / L. GOV. / (916) 319-3958
AB 2231
Page 7
FN: 0004169