BILL ANALYSIS �
AB 2561
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2561 (Bradford)
As Amended July 1, 2014
Majority vote
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|ASSEMBLY: |53-24|(May 29, 2014) |SENATE: |30-4 |(August 21, |
| | | | | |2014) |
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Original Committee Reference: JUD.
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 fruits and vegetables for
personal use or donation, excluding marijuana or any unlawful
crops or substances.
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 outdoor backyard 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 removal or maintenance of plant crops
or weeds.
b) The portable containers may not create a health or
safety hazard or otherwise block doorways or hallways, and
may be placed or located as determined by the landlord.
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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 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 backyard 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.
The Senate amendments restore authority to landlords to prevent
tenants from the off-site donation of plant crops derived from
personal agriculture, and restore the ability for CID governing
documents to prohibit or restrict homeowners from the off-site
donation of produce grown on their property.
FISCAL EFFECT : None
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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, this 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 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."
The author has made a number of amendments to significantly
narrow the scope of this bill with respect to residential rental
properties. First, this 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, although the landlord is authorized to prevent the
tenant from off-site donation of produce derived from personal
agriculture activity. Second, this 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, this bill limits personal agriculture to an outdoor
backyard area that is on the ground level of the rental unit.
In short, this 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. As a result,
with these amendments all the apartment associations that
previously opposed the bill have now withdrawn their opposition.
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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 the use of the homeowner's back yard for
personal agriculture. This 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.
This 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. They 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."
This bill is supported by produce companies and advocates for
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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
FN: 0004252