BILL ANALYSIS �
AB 2561
Page 1
ASSEMBLY THIRD READING
AB 2561 (Bradford)
As Amended May 28, 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 approved by the landlord in the
tenant's private area if the following conditions are met:
a) The tenant regularly removes any dead plant material and
weeds, except for straw, mulch or compost, 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 portable containers may not create a health or safety
hazard or otherwise block doorways or hallways, and may be
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placed or located as determined by the landlord.
c) The placement of the containers does not interfere with any
tenant's parking spot.
d) The plant crops will not interfere with the maintenance of
the rental property.
4)Preserves the right of a landlord to periodically inspect any area
where the tenant is engaging in personal agriculture, subject to
existing notice for inspection requirements, 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 personal agriculture permitted only in an outdoor
backyard area that is on the ground level of the rental unit.
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 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
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plants at home for personal use-subject to reasonable restrictions
but not 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 an outdoor backyard area that is on the
ground level of the rental unit. 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 backyard area and subject to certain restrictions by the
landlord. Recent amendments are intended to address concerns
expressed by opponents about the scope of damage to the rental
property, and it is believed that these amendments are sufficient to
remove the opposition of the apartment associations who previously
opposed the bill.
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
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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 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 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
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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) 319-2334FN:
0003897