BILL ANALYSIS �
AB 2257
Page 1
Date of Hearing: May 9, 2012
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 2257 (Achadjian) - As Amended: April 30, 2012
SUBJECT : Nuisance: landfill activities.
SUMMARY : Provides that a commercial waste management facility
that has been in operation for more than three years and has
otherwise been in compliance with applicable rules and standards
may not be deemed a nuisance if it was not a nuisance when
operation began. Specifically, this bill :
1)Provides that no commercial waste management activity,
operation, or facility, or appurtenances thereof, operating in
an established zone or district where those activities are
permitted and in a manner consistent with proper and accepted
customs and standards, shall become a nuisance, public or
private, due to any changed condition in or about the
locality, after it has been in operation for more than three
years, if it was not a nuisance at the time it began.
2)Provides that, in an action or proceeding to abate the use of
waste management activities, proof that the activities have
been in existence for three years shall constitute a
rebuttable presumption that the operation of the activities
does not constitute a nuisance.
3)Excludes from the protections of 1) and 2) above any waste
management activity, operation, or facility, or appurtenances
thereof, that obstructs the free passage or use, in the
customary manner, of any navigable lake, river, bay, stream,
canal, or basin, or any public park, square, street, or
highway.
4)Provides that, if the waste management activity, operation, or
facility, or appurtenances thereof, constitutes a nuisance,
public or private, as specifically defined or described in any
of the following statutory provisions, the protections of 1)
and 2) above shall not invalidate any provision contained in
the Health and Safety Code, Fish and Game Code, Food and
Agricultural Code, or the Porter-Cologne Water Quality Control
Act (Division 7, commencing with Section 13000 of the Water
Code).
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5)States that the provisions of this bill shall prevail over any
contrary provision of an ordinance or regulation of a city,
county, city and county, or other political subdivision of the
state.
6)Provides that nothing in this bill shall preclude a city,
county, city and county, or other political subdivision of
this state, acting within its constitutional or statutory
authority and not in conflict with other provisions of state
law, from adopting an ordinance that allows notification to a
prospective homeowner that the dwelling is in close proximity
to a waste management activity, operation, or facility, or
appurtenances thereof, and is subject to the provisions of
this section.
7)Defines the term "waste management activity, operation, or
facility, or appurtenances thereof" to include, but not be
limited to, a waste management unit at which waste is
recycled, composted, diverted, converted into energy, or
discharged in or on land for disposal.
8)Excludes from the definition of "waste management activity,
operation, or facility, or appurtenances thereof" any surface
impoundment, waste pile, land treatment unit, or injection
well.
EXISTING LAW :
1)Defines a nuisance as "�a]nything which is injurious to
health, including, but not limited to, the illegal sale of
controlled substances, or is indecent or offensive to the
senses, or an obstruction to the free use of property, so as
to interfere with the comfortable enjoyment of life or
property, or unlawfully obstructs the free passage or use, in
the customary manner, of any navigable lake, or river, bay,
stream, canal, or basin, or any public park, square, street,
or highway?"
2)Defines a public nuisance as one "which affects at the same
time an entire community or neighborhood, or any considerable
number of persons, although the extent of the annoyance or
damage inflicted upon individuals may be unequal." Any other
nuisance is a private nuisance.
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3)Authorizes various legal remedies for nuisance, including
abatement and civil action for damages, court costs and
attorney's fees.
4)Provides, among other things, that no agricultural activity,
operation, or facility, or appurtenances thereof, as defined,
in operation for more than three years, and conducted or
maintained for commercial purposes in a manner consistent with
proper and accepted customs and standards, shall become a
nuisance due to any changed condition in the locality if it
was not a nuisance at the time it began, except as specified.
FISCAL EFFECT : None
COMMENTS :
1)This bill aims to protect landfills and other waste management
sites from legal nuisance claims by declaring that such
facilities are not nuisances because of changes in local
conditions if the site has been in operation for more than
three years and was not a nuisance at the time it began. The
measure is sponsored by the County of San Luis Obispo.
2)According to the author, "�l]andfills provide an essential
service to surrounding communities, and their operations
should not be threatened by potential nuisance action if the
landfill was in operation before other developments. �AB 2257]
would prevent commercial landfill activity from being
considered a nuisance due to changed condition in the locality
if the landfill has been in operation more than three years,
and was not a nuisance at the time it began operation."
3)The author contends that "increasing development around
existing landfills threatens the ongoing operation of these
landfills and their associated facilities, as new property
owners complain about operations that they believe to be a
nuisance. However, most of the time, these landfills were in
operation before the additional development, and are already
subject to an extensive permitting process and strict
operating requirements.
Landfills provide an essential service to surrounding
communities, and their operations should not be threatened by
potential nuisance action if the landfill was not a nuisance
at the time it began, is complying with accepted customs and
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standards of operation, and has been in operation for more
than three years. Current law does not protect landfill
activity from potential nuisance actions."
4)This bill declares that no part of a waste management
operation (which includes recycling, composting, diversion,
energy production, or discharge) that is otherwise operating
according to zoning regulations and industry standards, may be
declared a public or private nuisance because of a changed
condition in the locality (such as an expansion of activity or
nearby housing development) as long as the activity has been
going on for at least three years and was not a nuisance at
the time it began. The bill further provides a legal
rebuttable presumption that a facility is not a nuisance if it
has been operating for at least three years, thereby shifting
the burden of proof onto the individual plaintiff.
The only exceptions to the protections of this measure would
be if a) the facility obstructs free passage or use of nearby
waterways, public parks and squares, streets and highways, or
b) if it would invalidate any provision of the Health and
Safety Code, Fish and Game Code, Food and Agriculture Code, or
any part of the Porter-Cologne Water Quality Control Act
(Division 7 of the Water Code). This bill also explicitly
supersedes any contrary local ordinance or regulation,
although a local agency may adopt an ordinance to allow
notification to a prospective homeowner that the dwelling is
in close proximity to waste management operations.
In practice, this protection would come into play in a
scenario where, for example, an individual homeowner desires
to file a nuisance lawsuit for dust and odor against a
landfill based in part on recent increases in its activities,
but the facility has been operating for more than three years
and was not a nuisance when it began. If a homeowner claimed
that the waste management operation produced a bad smell that
made her house less valuable, the burden of proof would fall
upon the homeowner to produce admissible evidence of the
nuisance sufficient to prove by a preponderance of the
evidence that the operation was in fact an actionable nuisance
or else the case would likely be dismissed.
5)The Regional Council of Rural Counties (RCRC) supports the
bill, stating that "local landfills and other solid waste
facilities are still required for the proper handling of solid
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waste and are much-needed components of the solid waste
stream. Furthermore, the existence of landfills and many
other related facilities remain an unpopular and undesirable
land-use function for many, including nearby residents.
However, local governments must be able to utilize these
functions as an essential public service. As such, RCRC
believes
AB 2257 responsibly addresses the conditions in which complaints
can be made under our state's nuisance statutes and
regulations."
6)The South Coast Air Quality Management District (SCAQMD)
opposes this bill on the grounds that it would undermine their
ability to properly regulate landfill sites: "The bill would
deprive the public, �SC]AQMD and other enforcement agencies of
the ability to take civil action or abatement orders should
any problems occur after the three year window. Communities
within the region will change over time and this bill appears
to relieve a facility from any obligation to accommodate such
changes. The unfettered protection that this bill would
provide facilities does not allow for proper protection of the
health and welfare of residents?and would be detrimental to
�SC]AQMD's environmental justice priorities."
The Los Angeles County Solid Waste Management
Committee/Integrated Waste Management Task Force feels
similarly: "�AB 2257] would undermine existing regulations
that were put in place with the objective of protecting public
health, safety, and well being.
It would also deprive the public and enforcement agencies of the
ability to take civil action or abatement orders should any
problems occur after the three year window. Problems could
easily occur �after three years] due to a change in landfill
ownership, operational changes, or many other factors."
7)In legal terms, a "nuisance" can be thought of as the use of a
property that causes inconvenience or injury to others. Such
nuisances can be public (causing a broader, general harm) or
private (harming one individual or a small group). Public
entities and private individuals may seek court action to
abate the nuisance or file a civil suit a seeking damages for
injury. One of the means for demonstrating injury would be to
claim a reduction in the value of a home due to the nuisance.
For example, a homeowner may claim that odor and noise from a
waste management operation reduces the value of a home,
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although the strength of the claim may depend in part on
whether or not the house was purchased before or after the
operation began.
8)According to West's Encyclopedia of American Law, Ed. 2
(2008), a rebuttable presumption is "a conclusion as to the
existence or nonexistence of a fact that a judge or jury must
draw when certain evidence has been introduced and admitted as
true in a lawsuit that can be contradicted by evidence to the
contrary."
As this measure provides for a rebuttable presumption that the
operation is not a nuisance upon proof that it has been in
existence for three years, the presumption would presumably
apply to both the burden to produce evidence and to the burden
of proof itself, which generally imposes an affirmative
obligation to prove it false by a preponderance of the
evidence.
In practice, the rebuttable presumption becomes important in
cases where it might be difficult for a plaintiff to produce
sufficient evidence of the nuisance itself or its negative
impacts.
9)This bill is comparable to provisions in existing law that
provide nuisance suit protections for agricultural activity
and related processing activity, which the author terms "right
to farm acts" (California Civil Code sections 3482.5 and
3482.6). However, its provisions go somewhat beyond those
provided in existing law for other types of operations.
The agriculture protection statute cited by the author as the
model for this bill (Civil Code Section 3482.5) explicitly
permits localities to bring a public nuisance action against
district
agricultural associations in the event of a substantial change
in the association's activities, operations or conditions
after more than three years of operation. It contains no
rebuttable presumption.
Furthermore, the agricultural processing statute (Civil Code
Section 3482.6) explicitly permits any party to bring a public
or private nuisance action for increases in activities or
operations that have a significant effect on the environment.
Such an action would be subject to a rebuttable presumption
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that the increase was not substantial if the facility has been
in operation for three years, but that presumption would
affect the burden of producing evidence only.
10)The Committee may wish to consider the following questions:
a) This bill contains no such explicit provision to bring
suit for changed conditions, and expands the rebuttable
presumption to encompass both the burden to produce and the
burden of proof. The Committee may wish to ask the author
why more stringent protections are called for in the
operation of waste management facilities than are provided
to agricultural and processing operations.
b) The Committee may also wish to ask how individual
property owners would be adequately protected under this
regime in cases where a facility's operations have changed
and increased negative impacts for neighbors.
c) Finally, in light of this bill's explicit predominance
over contrary local ordinances and regulations, the
Committee may wish to discuss whether or not the bill
provides sufficient latitude to local governments to
regulate, and potentially bring suit against, waste
management operations producing increased negative impacts
in their jurisdictions.
1)The language in this bill is similar to AB 1016 (Achadjian)
which was introduced on February 18, 2011, but was
substantially amended on March 23, 2011 without being heard to
address an unrelated subject.
2)Support arguments : According to the author, "�l]andfills
provide an essential service to surrounding communities, and
their operations should not be threatened by potential
nuisance action if the landfill was not a nuisance at the time
it began, is complying with accepted customs and standards of
operation, and has been in operation for more than three
years.
Opposition arguments : According to opponents, "�t]he bill
would deprive the public, �SCAQMD] and other enforcement
agencies of the ability to take civil action or abatement
orders should any problems occur after the three year window."
AB 2257
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REGISTERED SUPPORT / OPPOSITION :
Support
County of San Luis Obispo �SPONSOR]
American Council of Engineering Companies of California
Civil Justice Association of California
Regional Council of Rural Counties
Opposition
Los Angeles County Solid Waste Management Committee/Integrated
Waste Management Task Force
South Coast Air Quality Management District
Analysis Prepared by : Hank Dempsey / L. GOV. / (916) 319-3958