BILL ANALYSIS �
AB 2104
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Date of Hearing: March 26, 2014
ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT
Ed Chau, Chair
AB 2104 (Gonzalez) - As Introduced: February 20, 2014
SUBJECT : Common interest developments: water-efficient
landscapes
SUMMARY : Specifies that architectural or landscaping guidelines
or policies and decisions of a board of directors in a common
interest development (CID) that apply to specific homeowners are
void if they prohibit the use of low water-using plants and
other water conservation measures. Specifically, this bill :
1)Specifies that architectural or landscaping guidelines or
policies and decisions by the board of directors that apply to
a specific homeowner are void and unenforceable if they:
a) prohibit the use of low water-using plants;
b) restrict compliance with a water-efficient landscape
ordinance adopted by a local government;
c) prevent a homeowner from complying with a water-saving
ordinance adopted by a local agency; or
d) prohibit replacement of existing turf with low
water-using plants.
EXISTING LAW
1)Defines the governing documents to mean the declaration, any
other documents such as the bylaws, operating rules of the
association, articles of incorporation, or articles of
association, which govern the operation of the CID or
homeowners association (HOA). (Civil Code Section 4150)
2)Makes the governing documents of a CID void and unenforceable
if they do any of the following:
a) Prohibit or include conditions that have the effect of
prohibiting low water-using plants as a group;
b) Restrict compliance with a water-efficient landscape
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ordinance adopted by a local government; or
c) Prohibit compliance with any regulation or restriction
on the use of water due to severe water shortage. (Civil
Code Section 4735)
FISCAL EFFECT : None.
COMMENTS :
Background : There are over 49,000 CIDs in the state that range
in size from three to 27,000 units. CIDs make up over 4.9
million housing units which represents approximately one quarter
of the state's housing stock. CIDs include condominiums,
community apartment projects, housing cooperatives, and planned
unit developments. They are characterized by a separate
ownership of dwelling space coupled with an undivided interest
in a common property, covenants and conditions that limit the
use of common area, separate ownership interests, the management
of common property, and enforcement of restrictions by a HOA.
CIDs are governed by the Davis Stirling Act as well as the
governing documents of the HOA including bylaws, declaration,
and operating rules. Existing law provides protections to
homeowners who wish to install landscaping that includes low
water-using plants.
Under existing law the governing documents of a CID cannot
prohibit a homeowner from installing low water-using plants as a
group. In addition, CIDs cannot prevent a homeowner from
installing landscaping that complies with a city's or county's
water-efficient landscape ordinance or from complying with any
restrictions on watering that a city or county adopts in
response to severe water shortages.
Drought emergency : In the beginning of this year, due to record
low rainfall, the governor declared a drought emergency. The
governor's declaration called on residents to voluntarily reduce
water consumption by 20 percent. When state law was added to
clarify that a HOA's governing documents cannot prohibit a
homeowner from installing low water-using plants or complying
with local water saving ordinances, California was also
suffering from a drought. The Assembly Water Parks and Wildlife
analysis from AB 1061 (Lieu) (2001) Chaptered 501 states:
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"California currently suffers from a drought, and many
water agencies are considering mandatory water rationing as
early as this summer. In both the short term and long
term, Californians will need to conserve water to maintain
water supply reliability for a growing population and a
fluctuating or diminishing water supply. Because
landscaping can reflect about half of a resident's water
use, water-efficient landscaping is critical to long-term
water supply reliability. According to 2007 California
Community Association Statistics, approximately 11 million
- or about 1/3 of - Californians live in CIDs. They
therefore account for a significant portion of the
landscaping in California."
The purpose of this bill : According to the author,
"notwithstanding the clear intent of the law to promote water
conservation some HOAs have skirted these rules by: a) adopting
less formal policies that have the same effect as the prohibited
policies, e.g. requiring homeowners to keep existing
water-intensive lawns or keep a certain percentage of their
property covered by lawn; and/or b) denying individual
homeowners' requests for approval to install drought-tolerant
plants on their properties or to replace existing
water-intensive lawns with drought-tolerant plants on the
grounds that it would not be consistent with the character of
the neighborhood. These actions are allegedly justified
because they are not part of the "governing documents" of the
CID.
AB 2104 would reinforce the intent of existing law by making
clear that HOAs cannot use the artifice of placing prohibitions
against or restrictions on the use of drought-tolerant
landscaping in guidelines, policies, or ad hoc decisions by the
board of directors, instead of the governing documents of the
CID per se. It is intended to state clearly the Legislature's
intent that the replacement of water-intensive lawns with
aesthetic drought-tolerant landscaping by environmentally
conscious homeowners is to be permitted, not thwarted by an
interpretation of the law that is intentionally too narrow.
This reinforcement of the law is particularly timely given the
current drought emergency, and especially in light of recent
news reports of HOA's fining homeowners for under-watering their
lawns."
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Staff comments:
The board of directors and homeowners of an HOA rely upon the
governing documents which provide the rules and regulations for
governing the HOA. State statute defines the governing
documents to include the articles of incorporation and
declaration as well as the operating rules. The operating rules
should include guidance to homeowners on which low water-using
plants they can use to replace existing turf and, by state law,
cannot prohibit a homeowner from installing low water-using
plants. State statute specifies that an HOA can apply
landscaping rules established in the governing documents to the
extent that the rules do not prohibit a homeowner from
installing low water-using plants or comply with local
water-saving ordinances.
To the extent this is unclear or that the operating rules have
not been updated to reflect state law, AB 2104 would clarify
that any architectural guidelines or policies cannot prohibit a
homeowner from installing low water-using plants, installing a
water-efficient landscape that meets a local ordinance, or
complying with water conservation policies adopted by a local
government agency.
Committee amendments:
The committee may wish to consider the following amendments to
clarify the author's intent.
(a) Notwithstanding any other law, a provision of any
governing documents, or architectural or landscaping
guidelines or policies and decisions by the board of
directors applicable to a specific homeowner , shall be void
and unenforceable if it does any of the following:
(1) Prohibits, or includes conditions that have the effect
of prohibiting, the use of low water-using plants as a
group, or as a replacement of existing turf.
(2) Has the effect of prohibiting or restricting compliance
with either of the following:
(A) A water-efficient landscape ordinance adopted or in
effect pursuant to subdivision (c) of Section 65595 of the
Government Code.
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(B) Any regulation or restriction on the use of water
adopted pursuant to Section 353 or 375 of the Water Code.
(3) Prohibits, or includes conditions that have the effect
of prohibiting, the replacement of existing turf with low
water-using plants.
(b) This section shall not prohibit an association from
applying landscaping rules established in the governing
documents, to the extent the rules fully conform with the
requirements of subdivision (a).
Related Legislation:
AB 2100 (Campos) would prohibit an HOA from fining a homeowner
for yard maintenance issues related to under-watered plants
during a period of time that the governor has declared a state
of emergency due to a drought. This bill is pending hearing in
this Committee.
AB 1636 (Brown) would prohibit an HOA from fining a homeowner
who does not water his or her lawn during a period that the
Governor has declared a state of emergency due to a drought.
This bill is pending hearing in this Committee.
SB 992 (Nielsen) would prohibit an HOA from fining a homeowner
for yard maintenance issues related to under-watered plants
during a period of time that the governor has declared a state
of emergency due to a drought. This bill is pending hearing in
Senate Transportation and Housing Committee.
SB 1144 (Galgiani) would prohibit an HOA from fining a homeowner
for yard maintenance related to under-watered plants during a
period of time that the governor has declared a state of
emergency due to a drought. This bill is pending hearing in
Senate Transportation and Housing Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Realtors
California Native Plant Society
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California Rural Legal Assistance Foundation
Western Center on Law and Poverty
Opposition
None on file.
Analysis Prepared by : Lisa Engel / H. & C.D. / (916) 319-2085