July 14, 2015 Leave a comment
You may have seen the articles about the new California law that permits dead lawns during the drought. Here is the text of AB1, introduced by Assembly Member Cheryl Brown (D-San Bernardino):
ENROLLED JUNE 29, 2015 PASSED IN SENATE JUNE 22, 2015 PASSED IN ASSEMBLY JUNE 25, 2015 AMENDED IN SENATE JUNE 16, 2015 CALIFORNIA LEGISLATURE— 2015–2016 REGULAR SESSION
ASSEMBLY BILL No. 1
Introduced by Assembly Member Brown
(Coauthor: Senator Nielsen)
December 01, 2014
An act to add Section 8627.7 to the Government Code, relating to water.
LEGISLATIVE COUNSEL’S DIGESTAB 1, Brown. Drought: local governments: fines.The California Constitution requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable and that the waste or unreasonable use or unreasonable method of use of water be prevented. Existing law, the California Emergency Services Act, sets forth the emergency powers of the Governor under its provisions and empowers the Governor to proclaim a state of emergency for certain conditions, including drought.This bill would prohibit a city, county, or city and county from imposing a fine under any ordinance for a failure to water a lawn or having a brown lawn during a period for which the Governor has issued a proclamation of a state of emergency based on drought conditions.
Vote: majority Appropriation: no Fiscal Committee: no Local Program: no
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
The Legislature finds and declares both of the following:(a) That this act is in furtherance of the policy contained in Section 2 of Article X of the California Constitution.(b) The prohibition on imposing fines for failing to water a lawn or for having a brown lawn during a period for which the Governor has issued a proclamation of a state of emergency based on drought conditions is a matter of statewide concern and not a municipal affair, as that term is used in Section 5 of Article XI of the California Constitution. Therefore, Section 2 of this act shall apply to charter cities.
Section 8627.7 is added to the Government Code, to read:
(a) During a period for which the Governor has issued a proclamation of a state of emergency under this chapter based on drought conditions, a city, county, or city and county shall not impose a fine under any ordinance for a failure to water a lawn or for having a brown lawn.(b) A violation of this section is not subject to the criminal penalties set forth in Section 8665.
What does this mean? It means that cities, counties, and the state’s only City and County (San Francisco) cannot impose a fine under existing property maintenance ordinances during the drought. The Senate Floor analysis expressly states this applies to charter cities:
Apply to charter cities because the prohibition of fines imposed for
failing to water a lawn or having a brown lawn during a period for which the
Governor has issued a proclamation of a state of emergency based on
drought conditions is a matter of statewide concern and not a municipal
affair, as that term is used in Section 5 of Article XI of the California
It passed the Assembly by a vote of 80-0 on June 25, 2015. The bill passed the California Senate by a vote of 37 Yes, 0 No, and 3 No Votes Recorded (Senators Hall, Morrell and Pavley). Senator Isidore Hall III is a Democrat representing the South Bay of Los Angeles (35th District), Senator Mike Morrell is a Republican serving the 23rd Senatorial District including Rancho Cucamonga, Redlands and San Bernardino, and Senator Fran Pavley is a Democrat representing 27th District representing parts of Los Angeles and Ventura Counties.
The legislative history tells us which cities were seen by Assembly Member Brown as the most egregious violators:
From the Assembly Floor Analysis June 24, 2015:
In the most severe situation provided by the author, a homeowner in the City of Upland faced
misdemeanor charges for “failing to follow city code, and properly maintaining his front yard
and parkway space,” according to the Inland Valley Daily Bulletin, stemming from the
homeowner’s decision to stop watering his lawn in August of 2013. As of January 2015, that
homeowner planned to go to trial, and faced, according to the Inland Valley Daily Bulletin,
up to $4,000 in fines, or six months in jail. The homeowner was offered a deal several times
to reduce the amount of the fine if he corrected the issue, but he opted instead to go to trial.
Assembly Member Brown also singled out the cities of Glendale and San Bernardino.
In a nightmare for municipal lawyers trying to find this section for years in the future, this law was placed in Title 2 (Government of the State of California), Division 1 (General), Chapter 7 (California Emergency Services Act), Article 13 (State of Emergency). I understand why (because it deals with the declaration of the drought emergency), but it probably would have been more visible elsewhere.
The Senate Analysis states supporters “argue that this bill is straight-forward and provides a
common sense measure to ensure households are not penalized for conserving water.”
What will a defense to an administrative citation or criminal citation for unmaintained landscaping look like? Hopefully, local public entities will voluntarily stop citing brown lawns during the drought. However, if they don’t, a criminal demurrer, or an appeal of an administrative citation should do the trick.