AB 1881 - Newly Added Statute Serves Legitimate Purpose - Water Conservation - But Imposes Additional Burdens on Architectural Committees

Feldsott & Lee
A Law Corporation

As of January 1, 2007, Assembly Bill 1881 (hereinafter “AB 1881”) will become operative. The purpose of AB 1881 is to promote the conservation and efficient use of water and to prevent the waste of this valuable resource. AB 1881 accomplishes the goal of water conservation by implementing the following measures:

1) Requiring the Department of Water Resources to appoint an advisory task force to work with the department to draft a model local water efficient landscape ordinance;

2) Requires a local agency to adopt, on or before January 1, 2010, the updated model ordinance or other water efficient landscape ordinance that is at least as effective in conserving water as the updated model ordinance. Should the local agency fail to adopt a water efficient landscape ordinance, the model ordinance will be deemed adopted as of January 1, 2010;

3) Requires the Energy Commission to adopt, to the extent funds are available, by regulation performance standards and labeling requirements for landscape irrigation equipment to reduce the wasteful, uneconomic, inefficient, or unnecessary consumption of energy of water. The performance and labeling requirements must be adopted by the commission before January 1, 2010;

4) Requires a water purveyor, as defined, to require as a condition of new retail water service on and after January 1, 2008, the installation of separate water meters to measure the volume of water used exclusively for landscape purposes; and

5) As it pertains directly to Common Interest Developments, the Bill requires that the architectural guidelines of a common interest development shall not prohibit or include conditions that have the effect of prohibiting the use of low water-using plants as a group.

Pursuant to Assembly Bill 1881, the Davis-Stirling Act is amended and Civil Code §1353.8 is added thereto. Section 1353.8 will provide:

“The architectural guidelines of a common interest development shall not prohibit or include conditions that have the effect of prohibiting the use of low water-using plants as a group.”

Obviously, the general purpose of AB 1881 - water conservation - is an important one; however, as written, §1353.8 may provide some additional headaches for the architectural committees of Common Interest Developments in California. The language of this amendment and addition to the Civil Code is interesting and potentially troublesome due to the fact that it does not specifically prohibit architectural guidelines that exclude the use of low water-using plants. Rather, §1353.8 eliminates the use of architectural guidelines “that have the effect of prohibiting the use of low water-using plants as a group.” It the “effect” language that could prove troubling in the practical application of this Section to Common Interest Developments.

By way of example, it is clear that if the architectural guidelines of a Common Interest Development provides a list of acceptable trees, bushes, etc. that does not include low water-using plants this would be a violation of the newly enacted provision - i.e it would have the effect of prohibiting the use of low water-using plants. However, consider the following example, which may also prove to be a violation of §1353.8: Assume an association does not have any architectural guidelines that specifically prohibit the use of low water-using plants, but each time an architectural application is submitted that includes the use of said plants it is rejected because low water-using plants do not coordinate aesthetically with the decor of the association’s landscaping and/or do not match the “common scheme” of the association. Could this be construed as having the effect of prohibiting the use of low water-using plants? If so, the decisions made by that architectural committee to reject low water-using plants on a consistent basis could result in statutory liability for the association.

Only time will tell whether this seemingly innocent and worthwhile Section of the Civil Code proves to be a “cactus needle” in the side of the California Common Interest Developments; however, the immediate impact of §1353.8 will be to add even more responsibilities to the already burdened architectural committees of California Common Interest Developments.*

*Please note that recently enacted Civil Code §1378, added the requirement that architectural committees assess the Fair Employment and Housing Act, building codes or other applicable law governing land use or public safety prior to making a decision on an architectural application by an owner.