BILL ANALYSIS �
SB 880
Page 1
Date of Hearing: January 17, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 880 (Corbett) - As Amended: September 7, 2011
As Proposed to be Amended
SENATE VOTE : Not relevant
SUBJECT : COMMON INTEREST DEVELOPMENTS: ELECTRIC VEHICLE
CHARGING STATIONS
KEY ISSUE : SHOULD CALIFORNIA LAW ENACTED LAST YEAR TO
FACILITATE THE INSTALLATION OF ELECTRIC VEHICLE CHARGING
STATIONS IN COMMON INTEREST DEVELOPMENTS (CID) BE AMENDED TO
CLARIFY THAT AN ASSOCIATION OF CID MEMBERS MAY ESTABLISH
REASONABLE RULES FOR THE INSTALLATION AND USE OF CHARGING
STATIONS IN COMMON AREAS, AS SPECIFIED?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This noncontroversial bill is the author's follow-up legislation
to last year's SB 209, approved by this Committee and eventually
chaptered into law, that sought to limit restrictions that
common interest developments (CID) associations could enforce
against the installation of electric vehicle charging equipment
by member homeowners. Although the governor signed SB 209, he
also expressed concern in his signing message that the new law
could be interpreted "to permit individual homeowners to
unreasonably use or occupy common areas" and that further
legislation should be pursued "that clearly protects the right
of the CID to establish reasonable rules for any use of common
areas for charging stations." This bill represents the author's
commitment to address those concerns, and to that end this bill
seeks a balanced approach to the rules under which an
association may restrict the installation or use of a charging
station. For example, as proposed to be amended, this bill
clarifies that any provision in a CID governing document or
contract affecting the sale of an interest in the CID is void
and unenforceable if it effectively prohibits or "unreasonably
restricts" installation or use of a charging station, or
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conflicts with other provisions of this act. This bill also
clarifies that the unenforceability provision shall apply only
to installation and use of a charging station that is located in
an owner's designated parking space, as distinguishable from a
common area or other shared area. Furthermore, this bill
provides that installation of a charging station in a common
area for the exclusive use of an owner shall be authorized by
the association only if installation in the owner's designated
parking space is "impossible or unreasonably expensive." The
bill is supported by organizations who advocate for more
widespread use of electric vehicles, including Plug In America
and the California Electric Transportation Coalition, and there
is no registered opposition. This bill was previously approved
by the Assembly Housing and Community Development Committee by a
6-0 vote.
SUMMARY : Modifies and clarifies rules governing the
installation and use of electric vehicle charging stations in
the common areas of common interest developments. Specifically,
this bill :
1)Provides that any restriction or condition in any contract
affecting the sale of an interest in a CID, and any provision
of a CID's governing documents, that either effectively
prohibits or unreasonably restricts the installation or use of
an electric vehicle charging station in an owner's designated
parking space, including but not limited to a deeded parking
space, a parking space in an owner's exclusive use common
area, or a parking space that is specifically designated for
use by a particular owner, is void and unenforceable.
2)Requires electric vehicle charging stations to meet any
applicable zoning, land use, or other ordinances, or land use
permits.
3)Provides that the installation of an electric vehicle charging
station for the exclusive use of an owner in a common area
that is not an exclusive use common area shall be authorized
by the association only if it is impossible or unreasonably
expensive to install the station in the owner's designated
parking space, and requires the association, in such cases, to
enter into a licensing agreement with an owner for the use of
space in a common area.
4)Authorizes an association or the owners to install an electric
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vehicle charging station in the common area for the use of all
the members of the association under appropriate terms of use
developed by the association in such cases.
5)Allows an association to create a new parking space where one
did not previously exist to facilitate the installation of an
electric vehicle charging station.
6)Provides an exemption from the rule that two-thirds vote of
approval by all members of the CID is required for the
association to grant exclusive use of any portion of a common
area to a member, for the installation or use of an electric
vehicle charging station under the following circumstances:
a) Where installation or use of the charging station in an
owner's garage or a designated parking space requires
reasonable access through or across the common area for the
utility lines or meters.
b) Where installation or use of the charging station is
through a license granted by an association.
7)Adds an urgency clause to cause this act to take effect
immediately.
EXISTING LAW :
1)Provides that any covenant, restriction, or condition
contained in any deed, contract, or other instrument affecting
the transfer or sale of any interest in a community interest
development (CID,), and any provision of a governing document,
that effectively prohibits or restricts the installation or
use of an electric vehicle charging station is void and
unenforceable. (Civil Code 1353.9(a). Unless stated
otherwise, all further statutory references are to this code.)
2)Permits the managing association of a CID (hereafter
"association") to impose "reasonable" restrictions on electric
vehicle charging stations, defined as restrictions that do not
significantly increase the cost of the station or decrease its
efficiency or performance. (Section 1353.9(b).)
3)Requires the association to process and approve an application
to install an electric charging station in the same manner as
an architectural modification to the property, and to not
willfully delay or avoid approval. Further requires the
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approval or denial of the application to be in writing, and
provides that if an application is not denied within 60 days
of receipt, then the application will be deemed approved
unless the delay was the result of a reasonable request for
additional information. (Section 1353.9(e).)
4)Provides that if an electric vehicle charging station is to be
placed in the common area or an exclusive use common area, the
owner must obtain approval from the association to install the
electric vehicle charging station. Further provides that the
association shall approve the installation if the homeowner
agrees in writing to do all the following:
a) Comply with the association's architectural standards
for installation;
b) Engage a licensed contractor to install the station;
c) Within 14 days of approval, provide a certification of
insurance that names the association as an additional
insurer under the homeowner's insurance policy;
d) Pay for the electricity usage associated with the
station. (Section 1353.9(f)(1).)
1)Requires that any owner and each successive owner of the
parking stall on which or near where the electric vehicle
charging station is placed to be responsible for specified
costs associated with installation, maintenance, and repair,
as well as for the duty to
disclose to prospective buyers the existence of the charging
station and the related responsibilities of the homeowner.
(Section 1353.9(f)(2).)
2)Provides that an association that willfully violates these
provisions is liable to the applicant or other party for
actual damages and shall pay a civil penalty to the applicant
or other party in an amount not to exceed $1000, and entitles
a prevailing plaintiff to reasonable attorney fees in any
action to enforce compliance with these provisions. (Section
1353(g) and (h).)
3)Provides that after an association acquires fee title to, or
any easement right over, a common area, an approval of at
least 67 percent of the members owning separate interests in
the CID is required (unless the governing documents specify a
different percentage) to allow the board of directors to grant
exclusive use of any portion of that common area to a member,
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with specified exceptions. (Section 1363.07.)
COMMENTS : This bill is the author's follow-up legislation to
last year's SB 209, approved by this Committee and eventually
chaptered into law, that sought to limit restrictions that
common interest developments (CID) associations could enforce
against the installation of electric vehicle charging equipment
by member homeowners. Although the governor signed SB 209, he
also expressed concern in his signing message that the new law
could be interpreted "to permit individual homeowners to
unreasonably use or occupy common areas" and that further
legislation should be pursued "that clearly protects the right
of the CID to establish reasonable rules for any use of common
areas for charging stations." This bill represents the author's
commitment to address those concerns, and to that end this bill
seeks a balanced approach to the rules under which an
association may restrict the installation or use of a charging
station. For example, as proposed to be amended, this bill
clarifies that any provision in a CID governing document or
contract affecting the sale of an interest in the CID is void
and unenforceable if it effectively prohibits or "unreasonably
restricts" installation or use of a charging station, or
conflicts with other provisions of this act. This bill also
clarifies that the unenforceability provision shall apply only
to installation and use of a charging station that is located in
an owner's designated parking space, as distinguishable from a
common area or other shared area. Furthermore, this bill
provides that installation of a charging station in a common
area for the exclusive use of an owner shall be authorized by
the association only if installation in the owner's designated
parking space is "impossible or unreasonably expensive."
Background on common interest developments . There are nearly
50,000 common interest developments (CIDs) in California that
vary in size and structure, but generally speaking, CIDs are
multi-unit communities characterized by the following: (1)
separate ownership of individual residential units coupled with
an undivided interest in common property; (2) covenants,
conditions, and restrictions (CC&Rs) that limit the use of both
separate interests and common property; and (3) management of
common property and enforcement of restrictions by a homeowner's
association ("association").
Under the Davis-Stirling Act (Civil Code Section 1350 et seq.),
which sets forth general rules governing common interest
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developments, each individual CID is subject to rules and
regulations set forth by the association's "governing
documents." These governing documents include the recorded
declaration and any other documents, such as bylaws, operating
rules of the association, or articles of incorporation that
govern the operation of the association. (Civil Code Section
1351(j).) CIDs are governed by volunteer boards of directors
who are elected by the members of the association and who are
responsible for interpreting the governing documents and state
law. Except when CIDs are first developed, no state agency
provides ongoing oversight to these communities. In order to
amend the governing documents, an association must follow the
procedure outlined in their governing documents, or if the
governing documents are silent, the process provided in state
law. State law and most governing documents require that a
majority of members vote to approve an amendment to the
governing documents.
The governing documents of CIDs typically contain many
restrictions over aspects of use, appearance, and
transferability of interest of the property. However, last year
the Legislature approved and the Governor signed SB 209
(Corbett), Chapter 121, Statutes of 2011, which renders void and
unenforceable any provision in the governing documents of a CID,
or in a contract affecting the sale of an interest in a CID,
that prohibits or restricts the installation or use of an
electric vehicle charging station.
Stated need for the bill. According to the author, this bill is
needed to address concerns about the use of common areas for
charging stations that were expressed in the Governor's signing
message for SB 209. The author states:
While supportive of the policy in SB 209 (Corbett,
2011), Governor Edmund G. Brown, Jr. issued a signing
message on July 25, 2011 that indicated a concern that
the bill contained "language that could permit
individual homeowners to unreasonably use or occupy
common areas. "
Governor Brown added that legislation should be
introduced to clearly protect "the right of the common
interest developments to establish reasonable rules
for any use of common areas for charging stations."
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SB 880 addresses the Governor's signing message by
clarifying that the association or owners may install
an electric vehicle charging station in the common
area for the use of all members of the association.
However, the bill also protects the common area from
being converted to benefit just one owner.
Furthermore, the bill provides that the association
shall develop appropriate terms of use for the
charging station in the common area . . . and also
allows an association to create a new parking space
where one did not previously exist to facilitate the
installation of an electric vehicle charging station.
This bill clarifies the extent to which an association may
restrict the installation or use of a charging station. Under
new California law recently enacted by SB 209 (2011), any
provision in a CID governing document, or a contract or other
instrument affecting the sale of an interest in a CID is void
and unenforceable if that provision "effectively prohibits or
restricts the installation or use of an electric vehicle
charging station." As proposed to be amended, this bill seeks
to clarify the language of the statute in two important ways.
First, this bill clarifies that such a provision is void and
unenforceable if it is an "unreasonable" restriction,
effectively prohibits installation or use of a charging station,
or conflicts with other provisions of this act. Second, this
bill clarifies that the unenforceability clause applies only to
installation and use of a charging station that is located in an
owner's designated parking space, as distinguishable from a
common area or other shared area. The bill specifically
provides that an owner's designated parking space may include,
but is not limited to, a deeded parking space, a parking space
in an owner's exclusive use common area, or a parking space that
is specifically designated for use by a particular owner.
In short, the bill seeks to address the Governor's concerns
about common areas by making clear that a CID association may
adopt reasonable restrictions on charging stations in common
areas. The bill also seeks to address those concerns by
clarifying that the law primarily protects against restrictions
on charging stations installed in an owner's designated parking
space, not charging stations occupying common areas of the CID,
as is arguably the case under the statute enacted by SB 209 last
year.
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Circumstances under which installation of a charging station is
permitted in a common area. As proposed to be amended, this
bill provides that installation of a charging station in a
common area for the exclusive use of an owner shall be
authorized by the association only if installation in the
owner's designated parking space is "impossible or unreasonably
expensive." This preserves the right of the CID association to
control the use and integrity of the common areas of the
development for all of its members, rather than for the benefit
of a single, electric vehicle-owning member, unless there is no
other option to assist the particular member. In such cases,
the bill requires the association to license the member for use
of the space in the common area needed to install the charging
station, and requires the member to comply with same standard
conditions established for use of a charging station that all
other electric vehicle-owning members must follow.
To further promote the development of electric vehicle
infrastructure in CIDs, this bill also authorizes an association
to install a charging station in the common area for the use of
all members of the association. The bill also explicitly allows
an association to create a new parking space where one did not
previously exist in order to facilitate installation of a
charging station.
Author's amendments and urgency clause. In light of the fact
that SB 209 became operative earlier this month and the nature
of the concerns expressed by the Governor and other
stakeholders, the author proposes the following amendments to be
taken in this Committee, including the addition of an urgency
clause to cause this bill to take effect immediately should it
be chaptered into law. The author's amendments are:
In the title, in line 4, after "developments" insert ", and
declaring the urgency thereof, to take effect immediately"
On page 3, lines 1 and 2, strike out ", as added by Section 1
of Chapter 121 of the Statutes of 2011,"
On page 3, line 9 after "prohibits or" insert "unreasonably"
On page 5, line 19 after "station" insert "for the exclusive
use of an owner"
On page 5, line 21 after "space" delete "that is owned in fee
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or as an exclusive use easement"
On page 5, line 25, after "and" insert "the owner"
On page 6, line 39 after "(G)" insert, "(i)"
On page 7, line 3, strike out "meters, or to" and insert
"meters.
(ii) To"
On page 7, below line 11, insert "SEC. 3. This act is an
urgency statute necessary for the immediate preservation of
the public peace, health, or safety within the meaning of
Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to fully effectuate, in common interest
developments, the state's policy to promote, encourage, and
remove obstacles to the use of electric vehicle charging
stations, it is necessary for this act to take effect
immediately."
ARGUMENTS IN SUPPORT : This bill is supported by Plug In
America, a Santa Cruz-based organization who describes itself as
"representing millions of potential future consumers of plug-in
hybrids and fully electric vehicles." In its letter of support,
they write:
Plug In America enthusiastically endorses SB 880,
which will accelerate the market deployment off
electric vehicles by promoting the implementation of
plug-in charging infrastructure in condominium and
other multi-family dwellings. SB 880 will
significantly reduce the barriers for installation of
electric vehicle charging in this kind of residence so
that these plug-in vehicles can be more widely
deployed. We support this bill because it will
support the consumers who will drive demand for the
next generation of clean efficient vehicles which run
on domestic electricity.
In its letter of support, the California Electric Transportation
Coalition explains how this bill may also produce economic and
environmental benefits with respect to California's electric
grid:
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(We) have estimated that by the end of this year there
will be thousands of plug-in electric vehicles (PEVs)
in the State ramping up to 125,000-250,000 vehicles by
2015. This level of PEV deployment is desirable to
meet many of California's economic and environmental
policy goals. Electricity is an attractive
transportation fuel (from both an economic and
environmental standpoint), and is physically quite
different than gasoline. Demand for electricity to
charge PEVs can either positively or negatively impact
the safety, reliability and efficiency of the electric
grid, depending on when and how PEVs are charged. If
PEVs are charged primarily off-peak, when general
demand for electricity is low, and/or these vehicles
"communicate" with the grid to better utilize
renewable resources, there can be very significant
benefits for the safety, reliability and efficiency of
the electric grid. However, if PEVs charge principally
on-peak then there can be adverse impacts on the grid,
particularly as the number of vehicles increase.
Therefore, ensuring that residents of common interest
developments have the opportunity to install electric
vehicle chargers on their property, including the
common areas of these developments, without undue and
burdensome restrictions, will facilitate off-peak
charging which will benefit the PEV owner as well as
the electric grid.
Prior Related Legislation : SB 209 (Corbett), Chapter 121,
Statutes of 2011, renders void and unenforceable any provision
in the governing documents of a CID, or in a contract affecting
the sale of an interest in a CID, that prohibits or restricts
the installation or use of an electric vehicle charging station.
REGISTERED SUPPORT / OPPOSITION :
Support
California Electric Transportation Coalition
Plug In America
Opposition
None on file
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Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334