BILL ANALYSIS �
AB 2561
Page 1
ASSEMBLY THIRD READING
AB 2561 (Bradford)
As Amended May 7, 2014
Majority vote
JUDICIARY 6-3 LOCAL GOVERNMENT 5-1
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|Ayes:|Wieckowski, Alejo, Chau, |Ayes:|Achadjian, Levine, Alejo, |
| |Dickinson, Garcia, Stone | |Bradford, Mullin |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Gorell, |Nays:|Waldron |
| |Maienschein | | |
| | | | |
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SUMMARY : Seeks to ensure the ability of residents in common
interest developments (CID) and tenants in one- or two-unit
rental property to grow edible fruits and vegetables at home for
personal use, subject to reasonable restrictions. Specifically,
this bill :
1)Makes Legislative findings about the environmental,
nutritional, economic, and public health-related benefits
associated with increased participation in growing fresh
plant-based foods on the land where one resides.
2)Defines "personal agriculture" to mean a use of land where an
individual cultivates edible plant crops for personal use or
donation, excluding marijuana or any unlawful plants.
With respect to residential rental property:
3)Requires a landlord to permit a tenant to participate in
personal agriculture in portable containers in the tenant's
private area if the following conditions are met:
a) 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 such removal.
b) The placement of the containers does not interfere with
any tenant's parking spot.
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c) The placement of the containers does not create a
trip-and-fall hazard, block doorways, block access to
utility panels or cause water or other damage to the
property.
4)Preserves the right of a landlord to periodically inspect any
area where the tenant is engaging in personal agriculture, and
to enter into a written agreement for the payment of excess
water and trash bills, among other things.
5)Limits application of these provisions only to residential
rental property consisting of a single building with one or
two dwelling units.
With respect to residential property within a common interest
development (CID):
6)Provides that any provision of a governing document of a CID
that effectively prohibits or unreasonably restricts the
homeowner from using his or her front or back yard for
personal agriculture, or from the off-site donation of produce
grown on the property, shall be void and unenforceable.
7)Permits CIDs to impose "reasonable restrictions" on the use of
a homeowner's yard for personal agriculture, defined as
restrictions that do not significantly increase the cost of
engaging in personal agriculture or significantly decrease its
efficiency.
8)Limits application of these provisions only to yards that are
designated for the exclusive use of the homeowner.
FISCAL EFFECT : None
COMMENTS : This bill seeks to enact the Neighborhood Food Act,
legislation intended to remove obstacles to the practice of
growing edible fruits and vegetables in urban and suburban
residential neighborhoods for personal and community use or
consumption. Specifically, the bill seeks to ensure that
residents of CID's and tenants in certain kinds of rental
properties may participate in "personal agriculture"
activities-growing fruits and vegetable plants at home for
personal use-subject to reasonable restrictions but not
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completely prohibited by their homeowner's association (HOA) or
landlord.
This bill is sponsored by the Sustainable Economies Law Center
(SELC), a nonprofit group based in Oakland whose mission is to
support grassroots economic empowerment and encourage
communities to develop their own sustainable sources of food,
housing, energy, and jobs. According to the author,
"Landlord-tenant leases and HOA contracts often don't allow the
cultivation of food on residential property. This bill seeks to
remove legal barriers and make growing food accessible to all
Californians. Empowering individuals to grow food at home, on
previously vacant lots and in community gardens on a small
scale, will lead to positive economic, health, and environmental
outcomes throughout the state."
In order to address the concerns of apartment associations who
oppose the bill, the author has amended the bill to
significantly narrow the scope of the bill with respect to
residential rental properties. First, the bill no longer allows
entrepreneurial agriculture and instead clarifies that personal
agriculture is permitted only for the tenant's personal use or
for donation to others. Second, the bill limits personal
agriculture only to one- and two-unit properties, meaning that
it will be permitted in single-family homes and duplexes, but
effectively excluded from large multi-unit apartment buildings.
Third, the bill limits personal agriculture to outdoor areas for
the tenant's exclusive use-thus alleviating earlier concerns
expressed by opponents about the scope of damage to the inside
of the rental property posed by potted plants not otherwise
visible without a key to the premises. In short, the bill
allows only tenants in one- and two-unit rental properties to
engage in personal, not entrepreneurial, agriculture in their
exclusive use outdoor area and subject to certain restrictions
by the landlord.
Despite these recent amendments, the apartment associations
continue to oppose the bill, contending that it may cause their
properties to suffer physical damage, decrease in value, and
that landlords would lose control over appearance of the
property, among other things. Although the bill permits
personal agriculture only in portable containers (i.e. potted
plants) and provides that placement of the containers may not
cause water or other damage to the property, opponents contend
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that provision is vague and that potted plants are still likely
to damage the property over time because they need soil and
water.
Under the Davis-Stirling Act, which sets forth general rules
governing CIDs, each individual CID is subject to rules and
regulations set forth by the "governing documents" of the HOA.
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. CIDs are governed by volunteer
boards of directors who are elected by the members of the HOA
and who are responsible for interpreting the governing documents
and state law. An increasing proportion of Californians now
live in CIDs-by some accounts between one-fourth and one-third
of all Californians-and it is likely CIDs represent the majority
of new housing being built in the state. Furthermore, the
governing documents of CIDs typically contain many restrictions
over aspects of use, appearance, and transferability of interest
of the property. For these reasons, this bill seeks to
facilitate the ability of homeowners in the ever-expanding
CID-segment of the population to engage in personal agriculture
in their own yards, subject to reasonable restrictions but not
prohibited by their HOA.
This bill establishes that any provision of a CID governing
document shall be void and unenforceable if it effectively
prohibits or restricts either: 1) the use of the homeowner's
front or back yard for personal agriculture; or 2) the off-site
donation of produce grown on the homeowner's property. The bill
does not, however, prohibit a CID from imposing "reasonable
restrictions" on the use of a homeowner's yard for personal
agriculture, which are defined as restrictions that do not
significantly increase the cost of engaging in personal
agriculture or significantly decrease its efficiency.
Entrepreneurial agriculture is not permitted under this bill.
The bill is opposed by HOAs on the general principle that any
bill that seeks to restrict an HOA's governing documents
intrudes upon the existing process of self-governance by members
that is a central characteristic of HOAs. Opponents state,
"When a separate interest in a common interest development is
purchased, the buyer agrees to abide by the governing documents
of the HOA. Those governing documents can be amended by a vote
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of the association. This bill bypasses that process and takes
away the collective voice of the other homeowners of the
association who may have legitimate reasons for denying personal
agriculture in their neighborhood."
The Assembly Judiciary Committee notes that, notwithstanding the
authority for self-governance provided to HOAs by statute, the
Legislature over the years also has seen fit to modify or limit
that authority when thought appropriate to further other
important public policy goals. For example, the Legislature
recently approved and the Governor signed SB 209 (Corbett),
Chapter 121, Statutes of 2011, to promote the ownership of
electric vehicles and the reduction in pollution that they
cause, among other things. Specifically, SB 209 rendered void
and unenforceable any provision of an HOA's governing documents
that effectively prohibits or restricts the installation or use
of an electrical vehicle charging station by an individual
owner, as specified. Like that measure, this bill provides that
HOAs retain authority to impose reasonable restrictions, in this
case upon personal agriculture, but they may not adopt rules
that would prohibit or effectively prohibit the practice.
Similar restrictions upon HOA authority to prohibit certain
practices are sprinkled through the Civil Code, including with
respect to installation of solar energy systems (Civil Code
Section 714), installation of satellite dishes or antennas
(Civil Code Section 4725), ownership of pets (Civil Code Section
4715), and rental of the property to tenants (Civil Code Section
4740), among others.
This bill is supported by produce companies and advocates for
urban agriculture, who write in support, "This bill will
increase access to fresh produce for all Californians,
regardless of their place of residence and socioeconomic
limitations. Allowing small-scale local food production will
also reduce the carbon footprint of our food system by
shortening the distance between produce and consumer. The bill
also promotes efficient, fruitful use of water and land
resources, empowering Californians to prioritize food
cultivation over ornamental lawns and vacant lots."
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
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