California Legislature—2013–14 Regular Session

Assembly Bill No. 2561

Introduced by Assembly Member Bradford

February 21, 2014

An act to add Sections 1940.10 and 4356 to the Civil Code, and to add Article 2.10 (commencing with Section 65892) to Chapter 4 of Division 1 of Title 7 of the Government Code, relating to land use.

LEGISLATIVE COUNSEL’S DIGEST

AB 2561, as introduced, Bradford. Personal and entrepreneurial agriculture: restrictions.

(1) Existing law regulates the terms and conditions of residential tenancies, and prohibits a landlord from interfering with a tenant’s quiet enjoyment of the premises.

This bill would require a landlord to permit a tenant to participate in personal agriculture or entrepreneurial agriculture in portable containers in the tenant’s private area, as defined, as long as specified conditions are met.

(2) Existing law, the Davis-Stirling Common Interest Development Act, defines and regulates common interest developments and authorizes the governing board of the homeowners’ association that manages the development to adopt and amend the operating rules for the development.

This bill would make void any provision of the governing documents of a common interest development that prohibits the use of a homeowner’s front or back yard for personal agriculture or entrepreneurial agriculture or prohibits a homeowner from the off-site sale or donation of produce grown on the homeowner’s property.

(3) The Planning and Zoning Law requires the legislative body of a city or county to adopt a comprehensive, long-term general plan that includes various elements, including a land use element that designates the proposed general distribution and general location and extent of the uses of the land for housing, business, industry, open space, including agriculture, natural resources, recreation, and enjoyment of scenic beauty, education, public buildings and grounds, solid and liquid waste disposal facilities, and other categories of public and private uses of land.

This bill would provide that a city, county, or city and county may not prohibit personal agriculture, a community garden, or entrepreneurial agriculture, as defined, within its jurisdiction, notwithstanding a zoning ordinance to the contrary, but may subject these activities to specified requirements. This bill would also require each land use zone within a city, county, or city and county to be considered zoned for entrepreneurial agriculture, unless a local governmental agency, city council, or board of supervisors determines that growing plant crops for human consumption within a particular area within its jurisdiction would pose a significant public health risk. By increasing the duties of local officials, this bill would impose a state-mandated local program.

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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) California industrial agriculture is at risk due to water
shortages, soil degradation, pollution, environmental, and structural
threats to the San Francisco Bay Delta, and the rising cost of oil.
Providing Californians with the capacity to feed themselves and
their communities would drastically improve local food security
and mediate the risks of water, soil, environmental, or fuel-related
crises.

(b) Although California is the “bread basket” of the United
States and has regions of climate and land ideal for agriculture, a
significant amount of California’s food is grown hundreds or
thousands of miles from where it is consumed. This results in high
transportation costs, energy consumption, and lost economic
opportunity for our state. Even food grown in the heart of
California’s farming region is expensive to disperse to the rest of
the state due to rising fuel costs.

(c) California is no exception to rising obesity and
obesity-related diseases in the United States. Two-thirds of
American adults and nearly one-third of American children are
obese or overweight, putting them at risk for developing chronic
diseases, including diabetes, heart disease, or cancer. In California,
one in every nine children, one in three teens, and over one-half
of adults are already overweight or obese. This epidemic affects
virtually all Californians. Many of these health conditions are
preventable and curable through lifestyle choices that include
consumption of healthy fresh foods.

(d) One of every $10 dollars spent on health care in the United
States goes toward treating diabetes and its complications.
Facilitating opportunities for California residents to grow and
consume fresh, healthy foods will promote lifestyles and diets that
benefit individuals and communities, as well as being a more
effective use of public moneys.

(e) Many homeowners’ associations have rules prohibiting
homeowners from growing food in front yards or from selling food
grown on the property.

(f) Additionally, 40 percent of Californians live in residences
that they do not own, and may, as a result of lease restrictions or
disapproval by the landlord, face limitations on their ability to
grow food on the land where they reside.

(g) Providing Californians with increased opportunity to
participate in small-scale entrepreneurial agriculture will
supplement incomes during times of high unemployment and
underemployment and stimulate local economies.

(h) Lawncare is resource intensive, at no nutritional gain. Lawns
are the largest irrigated crop in the United States. In the urban areas
in the United States, 30 to 60 percent of residential water is used
for watering lawns. In arid and semiarid regions, this figure can
reach up to 75 percent. Annually, 67 million pounds (33,500 tons)
of synthetic pesticides are used on lawns in the United States.
Furthermore, lawnmowers use 580 million gallons of gasoline
yearly. These resources could be allocated to more productive
activities, including growing food, thus increasing access to healthy
options for low-income individuals.

(i) Gardens and agriculture on public lands help communities
increase their access to fresh fruits and vegetables, enhance urban
landscapes, motivate healthier eating, and connect neighborhoods.

(j) Potential civil liability for misuse of community garden
facilities makes some public entities cautious about devoting public
lands to community gardens or about expanding existing gardens
to include fruit trees.

SEC. 2.  

Section 1940.10 is added to the Civil Code, to read:

1940.10.  

(a) For purposes of this section, the following terms
are defined as follows:

(1) “Common area” means an area of the property that is shared
with other tenants.

(2) “Private area” means an area of the property that is for the
exclusive use of a tenant.

(b) A landlord shall permit a tenant to participate in personal
agriculture or entrepreneurial agriculture in portable containers in
the tenant’s private area as long as the following conditions are
met:

(1) The tenant regularly removes any dead plant material and
weeds, unless the landlord and tenant have a preexisting or separate
agreement regarding garden maintenance where the tenant is not
responsible for removing dead plant material and weeds.

(2) The placement of the containers does not interfere with any
tenant’s parking spot.

(3) The placement of the containers does not create a
trip-and-fall hazard, block doorways, or block access to utility
panels.

(4) The placement of the containers does not cause water or
other damage to the property.

(c) If the containers are to be placed on top of grass, a landlord
may require the tenant to replant grass prior to vacating the
property.

(d) The cultivation of food on the rental property other than that
which is contained in portable containers shall be subject to
approval from the landlord.

(e) A landlord may prohibit the cultivation of any sort by tenants
on common areas.

(f) With the exception of container plants on paved areas, a
landlord may choose to require an additional security deposit to
ensure that all landscaping is restored after the tenant vacates the
property or ceases to engage in food cultivation. The security
deposit shall not exceed the cost of anticipated restoration costs
in the event that the tenant does not restore the landscaping.

(g) A landlord may require the tenant to enter into a written
agreement regarding the payment of any excess water and waste
collection bills stemming from the garden.

(h) A landlord has a right to periodically inspect the garden area
to ensure compliance with the above rules.

(i) A landlord may not prevent tenants from selling or donating
products derived from this gardening at an off-site location.

SEC. 3.  

Section 4356 is added to the Civil Code, to read:

4356.  

(a) Notwithstanding any other law, a provision of any
of the governing documents of a common interest development
shall be void and unenforceable if it does either of the following:

(1) Prohibits, or includes conditions that have the effect of
prohibiting, the use of a homeowner’s front or back yard for
personal agriculture or entrepreneurial agriculture.

(2) Prohibits, or includes conditions that have the effect of
prohibiting, a homeowner from the off-site sale or donation of
produce grown on the homeowner’s property.

(b) This section applies only to yards that are designated for the
exclusive use of the homeowner.

(c) This section shall not prohibit a homeowners’ association
from applying rules and regulations restricting on-site sale of
agricultural products.

(d) This section shall not prohibit a homeowners’ association
from applying rules and regulations restricting the hours of
operation and the number of visitors to gardens within the
homeowners’ association. These rules and regulations shall be
reasonable and not undermine the ability of the homeowner to
operate the personal agriculture or entrepreneurial agriculture to
operate efficiently. Rules and regulations that restrict the hours of
operation, number of visitors, and the frequency of visits shall not
be substantially different from similar restrictions affecting hours
of operation, or visitors to homeowner activities, such as outdoor
birthday parties or recreational activities.

(e) This section shall not prohibit a homeowners’ association
from applying rules and regulations requiring that dead plant
material and weeds, with the exception of straw, mulch, compost,
and other organic materials intended to encourage vegetation and
retention of moisture in the soil, are regularly cleared from the
front yard.

SEC. 4.  

Article 2.10 (commencing with Section 65892) is
added to Chapter 4 of Division 1 of Title 7 of the Government
Code, to read:

 

Article 2.10.  Personal and Entrepeneurial Agriculture

 

65892.  

(a) For purposes of this article, the following definitions
shall apply:

(1) “Community garden” means a use of land managed by a
public entity, nonprofit organization, person, or group of
individuals to cultivate edible plant crops for donation or for
personal use by those cultivating the land.

(2) “Entrepreneurial agriculture” means a use of land managed
by a public entity, nonprofit organization, business entity,
individual, or group of individuals to cultivate edible plant crops
for the purpose of sale or donation.

(3) “Personal agriculture” means a use of land where an
individual cultivates edible plant crops for personal use or donation
as an accessory or a primary use of property.

(4) “Plant crop” means any crop in its raw or natural state, which
comes from a plant. It shall not include marijuana or any other
unlawful crops or substances.

(b) A city, county, or city and county shall not prohibit personal
agriculture, a community garden, or entrepreneurial agriculture
within its jurisdiction, notwithstanding a zoning ordinance to the
contrary. However, a city, county, or city and county may, by
ordinance, adopt the following restrictions on any of these
agricultural activities in a residential or commercial zone:

(1) Reasonable restrictions pertaining to the presence of dead
plant material in a front yard, except that a city, county, or city
and county shall not restrict the use of dead plant material to be
used as ground cover, mulch, or compost.

(2) Restrictions on the cultivation and placement of plants that
may interfere with a public sidewalk.

(3) Restrictions on structures for community gardening that do
not meet the same building standards applicable to accessory
structures within the zone.

(4) Retail sales at the site where plant crops are grown and all
other public use of the site or number of retail visitors. The
restrictions on hours of retail sales operation shall be reasonable
and not undermine the ability of the community garden,
entrepreneurial agriculture, or personal agriculture to operate
efficiently. Rules and regulations that restrict the number of retail
visitors, and the frequency of these visits, shall not be substantially
different from similar restrictions affecting the number of visitors
to other on-site activities, such as garage sales or holiday picnics.

(5) Restrictions on commercial deliveries and pickups that may
be limited to no less than once per day. On-site sales shall not be
considered commercial pickups.

(6) Restrictions on odor, noise, and dust caused by growing
produce and that affect home occupancy or cause a nuisance.

(c) Each land use zone within a city, county, or city and county
shall be considered zoned for entrepreneurial agriculture, unless
a local governmental agency, city council, or board of supervisors
determines that growing plant crops for human consumption witin
a particular area within its jurisdiction would pose a significant
public health risk. If growing crops in a particular area is
determined to present a public health risk, this area shall be clearly
delineated on a map and the public health risk specific to that area
shall be documented. The map and documentation of any specific
public health risk shall be available to the general public.

SEC. 5.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.