The Davis-Stirling Common Interest Development Act governs the management and operation of common interest developments. Existing law provides that, unless otherwise provided in the common interest development declaration, the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to that interest. Existing law makes void and unenforceable any provision of the governing documents or architectural or landscaping guidelines or policies that prohibits use of low water-using plants, or prohibits or restricts compliance with water-efficient landscape ordinances or regulations on the use of water, as specified.

Existing law also prohibits an association, except an association that uses recycled water for landscape irrigation, from imposing a fine or assessment on separate interest owners for reducing or eliminating watering of vegetation or lawns during any period for which the Governor has declared a state of emergency or the local government has declared a local emergency due to drought.

This bill would revise that exception to instead authorize the imposition of a fine or assessment against the owner of a separate interest that receives recycled water from a retail water supplier, as defined, and fails to use that recycled water for landscaping irrigation.

This bill would incorporate additional changes to Section 4735 of the Civil Code proposed by AB 349 that would become operative if this bill and AB 349 are enacted and this bill is enacted last.

This bill would declare that it is to take effect immediately as an urgency statute.

The Davis-Stirling Common Interest Development Act governs the management and operation of common interest developments. Existing law provides that, unless otherwise provided in the common interest development declaration, the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to that interest. Existing law makes void and unenforceable any provision of the governing documents or architectural or landscaping guidelines or policies that prohibits use of low water-using plants, or prohibits or restricts compliance with water-efficient landscape ordinances or regulations on the use of water, as specified.

Existing law also prohibits an association, except an association that uses recycled water for landscape irrigation, from imposing a fine or assessment on separate interest owners for reducing or eliminating watering of vegetation or lawns during any period for which the Governor has declared a state of emergency or the local government has declared a local emergency due to drought.

This bill would revise that exception to instead authorize the imposition of a fine or assessment against the owner of a separate interest that receives recycled water from a retail water supplier, as defined, and fails to use that recycled water for landscaping irrigation.

This bill would incorporate additional changes to Section 4735 of the Civil Code proposed by AB 349 that would become operative if this bill and AB 349 are enacted and this bill is enacted last.

This bill would declare that it is to take effect immediately as an urgency statute.

The Davis-Stirling Common Interest Development Act governs the management and operation of common interest developments. Existing law provides that, unless otherwise provided in the common interest development declaration, the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to that interest. Existing law makes void and unenforceable any provision of the governing documents or architectural or landscaping guidelines or policies that prohibits use of low water-using plants, or prohibits or restricts compliance with water-efficient landscape ordinances or regulations on the use of water, as specified.

Existing law also prohibits an association, except an association that uses recycled water for landscape irrigation, from imposing a fine or assessment on separate interest owners for reducing or eliminating watering of vegetation or lawns during any period for which the Governor has declared a state of emergency or the local government has declared a local emergency due to drought.

This bill would revise that exception to instead authorize the owner of a separate interest to be fined or assessed if the property subject to the fine or assessment has previously received, and continues to receive, imposition of a fine or assessment against the owner of a separate interest that receives recycled water from a retail water supplier, as defined, and fails to use that recycled water for landscaping irrigation.

This bill would incorporate additional changes to Section 4735 of the Civil Code proposed by AB 349 that would become operative if this bill and AB 349 are enacted and this bill is enacted last.

This bill would declare that it is to take effect immediately as an urgency statute.

The Davis-Stirling Common Interest Development Act governs the management and operation of common interest developments. Existing law provides that, unless otherwise provided in the common interest development declaration, the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to that interest. Existing law makes void and unenforceable any provision of the governing documents or architectural or landscaping guidelines or policies that prohibits use of low water-using plants, or prohibits or restricts compliance with water-efficient landscape ordinances or regulations on the use of water, as specified.

Existing law also prohibits an association, except an association that uses recycled water for landscape irrigation, from imposing a fine or assessment on separate interest owners for reducing or eliminating watering of vegetation or lawns during any period for which the Governor has declared a state of emergency or the local government has declared a local emergency due to drought.

This bill would limit revise that exception to only associations that use recycled water for all home and common area instead authorize the owner of a separate interest to be fined or assessed if the property subject to the fine or assessment has previously received, and continues to receive, recycled water for landscaping irrigation.

This bill would incorporate additional changes to Section 4735 of the Civil Code proposed by AB 349 that would become operative if this bill and AB 349 are enacted and this bill is enacted last.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law, the federal National Voter Registration Act of 1993, requires a state to establish procedures to register a person to vote by application made simultaneously with an application for a motor vehicle drivers license, by mail application, and by application in person at a registration site or designated voter registration agency. With respect to an application made simultaneously with an application for a motor vehicle drivers license, the act requires the motor vehicle drivers license application to serve as an application for voter registration with respect to an election for federal office, unless the applicant fails to sign the application, and requires the application to be considered as updating the applicants previous voter registration, if any. The federal act defines motor vehicle drivers license to include any personal identification document issued by a state motor vehicle authority.

The United States District Court for the Northern District of California, in the matter of Wilson v. United States, held that the federal act is constitutional and on May 4, 1995, ordered the State of California to implement the States Plan for Implementation of the National Voter Registration Act.

Under existing state law, a person may not be registered to vote except by affidavit of registration. Existing state law establishes procedures for a person to register to vote by mail or by application in person at a registration site or office of a designated voter registration agency. Existing state law also requires a properly executed affidavit of registration to be deemed effective upon receipt of the affidavit by the county elections official if the affidavit is submitted to the Department of Motor Vehicles, or accepted by any other public agency designated as a voter registration agency, on or before the 15th day before the election.

To the extent the states plan is inconsistent with the federal act, this bill would require the Department of Motor Vehicles, in coordination with the Secretary of State, to take additional steps to fully implement and further comply with a specified provision of the federal act.

Existing law, the federal National Voter Registration Act of 1993, requires a state to establish procedures to register a person to vote by application made simultaneously with an application for a motor vehicle drivers license, by mail application, and by application in person at a registration site or designated voter registration agency. With respect to an application made simultaneously with an application for a motor vehicle drivers license, the act requires the motor vehicle drivers license application to serve as an application for voter registration with respect to an election for federal office, unless the applicant fails to sign the application, and requires the application to be considered as updating the applicants previous voter registration, if any. The federal act defines motor vehicle drivers license to include any personal identification document issued by a state motor vehicle authority.

The United States District Court for the Northern District of California, in the matter of Wilson v. United States, held that the federal act is constitutional and on May 4, 1995, ordered the State of California to implement the States Plan for Implementation of the National Voter Registration Act.

Under existing state law, a person may not be registered to vote except by affidavit of registration. Existing state law establishes procedures for a person to register to vote by mail or by application in person at a registration site or office of a designated voter registration agency. Existing state law also requires a properly executed affidavit of registration to be deemed effective upon receipt of the affidavit by the county elections official if the affidavit is submitted to the Department of Motor Vehicles, or accepted by any other public agency designated as a voter registration agency, on or before the 15th day before the election.

To the extent the states plan is inconsistent with the federal act, this bill would require the Department of Motor Vehicles, in coordination with the Secretary of State, to take additional steps to fully implement and further comply with a specified provision of the federal act.

The National Voter Registration Act permits a county to cancel the prior registration of a voter who has moved to a different county after it attempts to confirm the voters change of address, as specified. The act allows this cancellation if the change-of-address notice comes from the Department of Motor Vehicles or another designated agency, and if the voter initiates the request. Existing state law also permits a county to cancel the prior voter registration of a voter who verifies in writing that he or she has moved to a different county.

This bill would prohibit a county from canceling the prior registration of a voter upon notification by the Department of Motor Vehicles that the voter had moved to a different county, except at the voters request, until the voter is registered to vote in the county to which he or she has moved.

CONCURRENCE IN SENATE AMENDMENTS

CSA2 Bill Id:AB 786

Author:(Levine)

As Amended Ver:September 2, 2015

2/3 vote. Urgency

(vote not relevant)

(H. & C.D.)

Original Committee Reference: H. & C.D.

SUMMARY: Clarifies that a homeowners association (HOA) may only impose a fine or assessment against a homeowner for reducing or eliminating the watering of vegetation or lawns during a drought where, prior to the imposition of a fine or assessment, the homeowner receives recycled water from a retail water supplier and fails to use that recycled water for landscaping irrigation. This bill is an urgency measure.

The Senate amendments delete the Assembly version of this bill, and instead:

1. Clarify that an HOA may only impose a fine or assessment against a homeowner for reducing or eliminating the watering of vegetation or lawns during a drought where, prior to the imposition of a fine or assessment, the homeowner receives recycled water from a retail water supplier and fails to use that recycled water for landscaping irrigation.

2. Define "recycled water" as water which, as a result of treatment of waste, is suitable for a direct beneficial use or a controlled use that would not otherwise occur and is therefor considered a valuable resource.

3. Define "retail water supplier" as any local entity, including a public agency, city, county, or private water company, that provides retail water service.

4. Provide that it is an urgency measure.

5. Include chaptering out amendments with AB 349 (Gonzalez), Chapter 266, Statutes of 2015.

FISCAL EFFECT: None

COMMENTS:

Purpose of this bill: According to the author, "the Department of Water Resources states that irrigation for outdoor landscaping can account for anywhere from an average of 25% to an average of 80% of overall urban water use, depending on the area. On January 17, 2014, Governor Brown proclaimed a drought state of emergency in California citing three consecutive years of severe drought conditions and the impossibility of predicting how long the drought could last. The emergency drought proclamation was followed on April 24, 2014, by an Executive Order (2014 EO) seeking to limit outdoor watering.

"The 2014 EO also identified an ongoing problem with HOAs that were fining or threatening to fine homeowners for complying with water conservation measures. The 2014 EO declared HOA measures void and unenforceable if they had the effect of prohibiting compliance with the water-saving measures adopted by a public agency or private water company. But the 2014 EO did not protect homeowners who voluntarily let their lawn go brown."

The author notes that the chronic drought has continued and California is now in its fourth year. On April 1, 2015, the Governor followed up on the proclamation of a drought state of emergency with Executive Order B-29-15. Among the provisions of the Executive Order was directive No. 2, stating that the State Water Resources Control Board shall impose restrictions upon water suppliers to achieve a statewide 25% reduction in potable urban water usage through February 28, 2016. Restrictions in the amount of potable water used for outdoor landscaping are the primary tool.

To further implement these restrictions, Governor Brown signed AB 1 (Brown), Chapter 62, on July 13, 2015. The author states that "AB 1 prohibits cities and counties from imposing fines on homeowners for failing to water a lawn or having a brown lawn during any period for which the Governor has declared a drought state of emergency. But AB 1 does not address HOAs. Civil Code Section 4735 prohibits HOAs from fining homeowners for letting their lawns go brown. But Section 4735 allows HOAs that are using recycled water to fine homeowners. Some HOAs have interpreted this to mean that if the HOA itself is using some recycled water on common areas then it can continue to fine homeowners that let their lawns go brown."

The author believes that homeowners who voluntarily seek to aid the emergency drought situation should not be penalized by HOAs using the recycled water loophole in an attempt to maintain lush lawns during a drought. This bill will close a loophole by restricting the ability for HOAs to impose a fine on a homeowner only in circumstances in which, prior to the imposition of a fine or assessment, the owner of a separate interest receives recycled water from a retail water supplier and fails to use that recycled water for landscaping irrigation.

Arguments in support: Supporters, including water districts and agencies, argue that California is experiencing unprecedented drought conditions and that homeowners need clarity regarding what measures they may take to reduce outdoor water use without risk of fines from their HOAs. Supporters contend that this bill is a sensible effort that closes a gap in law that some HOAs have been taking advantage of in order to fine residents that have allowed their lawns to go brown if recycled water is used on common areas.

Arguments in opposition: This bill also contains the same provisions contained within AB 349 (Gonzalez), Chapter 266, Statutes of 2015, which was signed by the Governor on September 4, 2015. This language was included to avoid chaptering issues if both this bill and AB 349 are signed by the Governor. AB 349 prohibits an HOA from preventing a homeowner from installing artificial turf or synthetic grass. An HOA may establish reasonable restrictions about the type of artificial grass that a homeowner may use so long as those restrictions do not, in effect, prevent a homeowner from installing artificial grass. The Educational Community for Homeowners (ECHO) does not oppose the provisions in the bill relating to recycled water. ECHO opposes the AB 349 (Gonzalez) chaptering out provisions that are incorporated into this bill, however, because they are concerned about a number of health and environmental issues related to the installation and use of synthetic turf.

This bill was substantially amended in the Senate and the Assembly-approved version of this bill was deleted.

Related legislation:

AB 349 (Gonzalez), Chapter 266, Statutes of 2015: Voids, or makes unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass. Prohibits a requirement that an owner of a separate interest remove or reverse water-efficient landscaping measures, installed in response to a declaration of a state of emergency, upon the conclusion of the state of emergency. AB 349 was signed by the Governor on September 4, 2015.

SB 759 (Lieu) of 2011: Would have voided, or made unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass. SB 759 was vetoed by the Governor.

AB 1793 (Saldaña) of 2010: Would have voided, or made unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass. AB 1793 was vetoed by the Governor.

Analysis Prepared by: Rebecca Rabovsky / H. & C.D. / (916) 319-2085 FN: 0002365

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 786

Author:(Levine)

As Amended Ver:September 2, 2015

2/3 vote. Urgency

(vote not relevant)

Original Committee Reference: E. & R.

SUMMARY: Clarifies that a homeowners association (HOA) may only impose a fine or assessment against a homeowner for reducing or eliminating the watering of vegetation or lawns during a drought where, prior to the imposition of a fine or assessment, the homeowner receives recycled water from a retail water supplier and fails to use that recycled water for landscaping irrigation. This bill is an urgency measure.

The Senate amendments delete the Assembly version of this bill, and instead:

1. Clarify that an HOA may only impose a fine or assessment against a homeowner for reducing or eliminating the watering of vegetation or lawns during a drought where, prior to the imposition of a fine or assessment, the homeowner receives recycled water from a retail water supplier and fails to use that recycled water for landscaping irrigation.

2. Define "recycled water" as water which, as a result of treatment of waste, is suitable for a direct beneficial use or a controlled use that would not otherwise occur and is therefor considered a valuable resource.

3. Define "retail water supplier" as any local entity, including a public agency, city, county, or private water company, that provides retail water service.

4. Provide that it is an urgency measure.

5. Include chaptering out amendments with AB 349 (Gonzalez), Chapter 266, Statutes of 2015.

FISCAL EFFECT: None

COMMENTS:

Purpose of this bill: According to the author, "the Department of Water Resources states that irrigation for outdoor landscaping can account for anywhere from an average of 25% to an average of 80% of overall urban water use, depending on the area. On January 17, 2014, Governor Brown proclaimed a drought state of emergency in California citing three consecutive years of severe drought conditions and the impossibility of predicting how long the drought could last. The emergency drought proclamation was followed on April 24, 2014, by an Executive Order (2014 EO) seeking to limit outdoor watering.

"The 2014 EO also identified an ongoing problem with HOAs that were fining or threatening to fine homeowners for complying with water conservation measures. The 2014 EO declared HOA measures void and unenforceable if they had the effect of prohibiting compliance with the water-saving measures adopted by a public agency or private water company. But the 2014 EO did not protect homeowners who voluntarily let their lawn go brown."

The author notes that the chronic drought has continued and California is now in its fourth year. On April 1, 2015, the Governor followed up on the proclamation of a drought state of emergency with Executive Order B-29-15. Among the provisions of the Executive Order was directive No. 2, stating that the State Water Resources Control Board shall impose restrictions upon water suppliers to achieve a statewide 25% reduction in potable urban water usage through February 28, 2016. Restrictions in the amount of potable water used for outdoor landscaping are the primary tool.

To further implement these restrictions, Governor Brown signed AB 1 (Brown), Chapter 62, on July 13, 2015. The author states that "AB 1 prohibits cities and counties from imposing fines on homeowners for failing to water a lawn or having a brown lawn during any period for which the Governor has declared a drought state of emergency. But AB 1 does not address HOAs. Civil Code Section 4735 prohibits HOAs from fining homeowners for letting their lawns go brown. But Section 4735 allows HOAs that are using recycled water to fine homeowners. Some HOAs have interpreted this to mean that if the HOA itself is using some recycled water on common areas then it can continue to fine homeowners that let their lawns go brown."

The author believes that homeowners who voluntarily seek to aid the emergency drought situation should not be penalized by HOAs using the recycled water loophole in an attempt to maintain lush lawns during a drought. This bill will close a loophole by restricting the ability for HOAs to impose a fine on a homeowner only in circumstances in which, prior to the imposition of a fine or assessment, the owner of a separate interest receives recycled water from a retail water supplier and fails to use that recycled water for landscaping irrigation.

Arguments in support: Supporters, including water districts and agencies, argue that California is experiencing unprecedented drought conditions and that homeowners need clarity regarding what measures they may take to reduce outdoor water use without risk of fines from their HOAs. Supporters contend that this bill is a sensible effort that closes a gap in law that some HOAs have been taking advantage of in order to fine residents that have allowed their lawns to go brown if recycled water is used on common areas.

Arguments in opposition: This bill also contains the same provisions contained within AB 349, which was signed by the Governor on September 4, 2015. This language was included to avoid chaptering issues if both this bill and AB 349 are signed by the Governor. AB 349 prohibits an HOA from preventing a homeowner from installing artificial turf or synthetic grass. An HOA may establish reasonable restrictions about the type of artificial grass that a homeowner may use so long as those restrictions do not, in effect, prevent a homeowner from installing artificial grass. The Educational Community for Homeowners (ECHO) does not oppose the provisions in the bill relating to recycled water. ECHO opposes the AB 349 chaptering out provisions that are incorporated into this bill, however, because they are concerned about a number of health and environmental issues related to the installation and use of synthetic turf.

This bill was substantially amended in the Senate and the Assembly-approved version of this bill was deleted.

Related legislation:

AB 349: Voids, or makes unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass. Prohibits a requirement that an owner of a separate interest remove or reverse water-efficient landscaping measures, installed in response to a declaration of a state of emergency, upon the conclusion of the state of emergency. This bill was signed by the Governor on September 4, 2015.

SB 759 (Lieu) of 2011: Would have voided, or made unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass. This bill was vetoed by the Governor.

AB 1793 (Saldaña) of 2010: Would have voided, or made unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass. This bill was vetoed by the Governor.

Analysis Prepared by: Rebecca Rabovsky / H. & C.D. / (916) 319-2085 FN: 0002362

 THIRD READING  

Bill No: AB 786

Author: Levine (D)

Amended: 9/2/15 in Senate

Vote: 27 - Urgency

SENATE TRANS. & HOUSING COMMITTEE: 9-0, 8/25/15

AYES: Beall, Cannella, Allen, Bates, Galgiani, Leyva, McGuire, Mendoza, Roth

NO VOTE RECORDED: Gaines, Wieckowski

ASSEMBLY FLOOR: Not relevant

SUBJECT: Common interest developments: property use and maintenance

SOURCE: Author

DIGEST: This bill permits a homeowners association (HOA) to impose a fine or assessment on an owner of a separate interest in an HOA if the owner, prior to the imposition of a fine or assessment, receives recycled water from a retail water supplier and fails to use recycled water for landscaping irrigation.

Senate Floor Amendments of 9/2/15 clarify that the imposition of the fine results from the receipt of recycled water from a retail water supplier prior to the imposition of the fine.

ANALYSIS:

Existing law:

1. Requires local agencies to adopt water-efficient landscape ordinances, as specified.

2. Establishes rules and regulations governing the operation of common interest developments (CIDs) and the respective rights and duties of HOAs and their members.

3. Permits the governing board of an HOA to adopt operating rules that apply generally to the management and operation of the CID or the conduct of the business and affairs of the HOA, provided that the rule is within the authority of the board to make, does not conflict with the HOA’s articles, bylaws, or governing law, and is reasonable.

4. Limits the authority of an HOA or the governing documents of a CID to regulate the use of a member’s separate interest.

5. Renders void and unenforceable any provision of the governing documents or architectural or landscaping guidelines or policies of an HOA that does any of the following:

1. Prohibits, or includes conditions that have the effect of prohibiting, the use of low-water-using plants as a group or as a replacement of existing turf; or

2. Has the effect of prohibiting or restricting compliance with a water-efficient landscape ordinance or regulation or restriction on the use of water.

6. Provides that an HOA may apply landscaping rules established in its governing documents that do not conflict with other law, as specified.

7. Prohibits an HOA from imposing a fine or assessment against an owner of a separate interest for reducing or eliminating the watering of vegetation or lawns during any period for which the Governor has declared a state of emergency due to drought or a local government has declared a local emergency due to drought.

This bill:

1. Permits an HOA to impose a fine or assessment on an owner of a separate interest in an HOA if the owner, prior to the imposition of a fine or assessment, receives recycled water from a retail water supplier and fails to use recycled water for landscaping irrigation.

2. Voids, or makes unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass.

3. Prohibits a CID from requiring a homeowner to reverse or remove water-efficient landscaping measures upon the conclusion of a state of emergency due to drought that were installed during that state of emergency.

Comments

Purpose. According to the author, the chronic drought has continued and California is now in its fourth year. On April 1, 2015, the Governor followed up on a proclamation of a drought state of emergency with Executive Order B-29-15. Among the provisions of the Executive Order was directive No. 2, stating that the State Water Resources Control Board shall impose restrictions upon water suppliers to achieve a statewide 25% reduction in potable urban water usage through February 28, 2016. Restrictions in the amount of potable water used for outdoor landscaping are the primary tool.

Despite these directives, the author asserts that some HOAs are interpreting language in existing law to allow them to fine homeowners for restricting the watering of outdoor landscaping. Those HOAs are stating that if they (the HOA) use recycled water on some part of the common areas, the HOA may fine homeowners who refuse to use potable water upon their outdoor landscaping and thus let the lawn turn brown. The author believes that homeowners who voluntarily seek to aid the emergency drought situation should not be penalized by HOAs using the recycled water loophole in an attempt to maintain lush lawns during a drought.

Artificial turf provisions. This bill also contains the same provisions contained within AB 349 (Gonzalez), which was heard in the Senate Transportation and Housing Committee on June 24, 2015. This language was included to avoid chaptering issues if both this bill and AB 349 were signed by the Governor. Therefore, this bill prohibits an HOA from preventing a homeowner from installing artificial turf or synthetic grass. Existing law allows an HOA to apply landscaping rules that are included in the governing documents, so long as those rules do not prohibit or have the effect of prohibiting the use of low-water-using plants or prevent a homeowner from complying with a local water-efficient landscaping ordinance. This bill extends those protections to artificial turf or grass. This means an HOA may establish reasonable restrictions about the type of artificial grass that a homeowner may use so long as those restrictions do not, in effect, prevent a homeowner from installing artificial grass.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 9/2/15)

Association of California Water Agencies

California Association of Sanitation Agencies

California Forward Action Fund

California Municipal Utilities Association

Eastern Municipal Water District

Irvine Ranch Water District

San Diego County Water Authority

Santa Margarita Water District

WaterReuse California

Western Municipal Water District

OPPOSITION: (Verified 9/2/15)

Educational Community for Homeowners

ARGUMENTS IN SUPPORT: According to the Irvine Ranch Water District, this district is an example of a water agency struggling to meet the drought emergency by limiting outdoor landscaping. A homeowner in an HOA that receives water from that district informed the district that he would be fined by the HOA if he were to let his lawn go brown. That HOA interpreted existing law as allowing them to fine homeowners for non-watering if the HOA is using recycled water in common areas. This bill will restrict the ability for HOAs to impose a fine on a homeowner only in circumstances in which recycled water is used by both the HOA and the homeowner in common areas and in homes.

ARGUMENTS IN OPPOSITION: The Educational Community for Homeowners (ECHO) does not oppose the provisions in this bill related to the use of recycled water.

ECHO opposes the provisions that were contained with AB 349 (Gonzalez) that are incorporated into this bill, however, because decisions made regarding landscaping in CIDs are, and should continue to be, made by the community and its elected board of directors. ECHO therefore resists attempts by the state to legislate a “one-size-fits-all” approach to CID governance. ECHO also raises environmental and public health concerns related to the installation of artificial turf, including the possible unknown health impacts that could be caused by synthetic turf.

Prepared by: Alison Dinmore / T. & H. / (916) 651-4121, Erin Riches / T. & H. / (916) 651-4121

9/3/15 14:31:33

**** END ****

 THIRD READING  

Bill No: AB 786

Author: Levine (D)

Amended: 8/31/15 in Senate

Vote: 27 - Urgency

SENATE TRANS. & HOUSING COMMITTEE: 9-0, 8/25/15

AYES: Beall, Cannella, Allen, Bates, Galgiani, Leyva, McGuire, Mendoza, Roth

NO VOTE RECORDED: Gaines, Wieckowski

ASSEMBLY FLOOR: 60-17, 6/2/15 - See last page for vote

SUBJECT: Common interest developments: property use and maintenance

SOURCE: Author

DIGEST: This bill permits a homeowners association (HOA) to impose a fine or assessment on an owner of a separate interest in an HOA if the property subject to the fine or assessment has previously received, and continues to receive, recycled water for landscaping irrigation.

ANALYSIS:

Existing law:

1. Requires local agencies to adopt water-efficient landscape ordinances, as specified.

2. Establishes rules and regulations governing the operation of common interest developments (CIDs) and the respective rights and duties of HOAs and their members.

3. Permits the governing board of an HOA to adopt operating rules that apply generally to the management and operation of the CID or the conduct of the business and affairs of the HOA, provided that the rule is within the authority of the board to make, does not conflict with the HOA’s articles, bylaws, or governing law, and is reasonable.

4. Limits the authority of an HOA or the governing documents of a CID to regulate the use of a member’s separate interest.

5. Renders void and unenforceable any provision of the governing documents or architectural or landscaping guidelines or policies of an HOA that does any of the following:

1. Prohibits, or includes conditions that have the effect of prohibiting, the use of low-water-using plants as a group or as a replacement of existing turf; or

2. Has the effect of prohibiting or restricting compliance with a water-efficient landscape ordinance or regulation or restriction on the use of water.

6. Provides that an HOA may apply landscaping rules established in its governing documents that do not conflict with other law, as specified.

7. Prohibits an HOA from imposing a fine or assessment against an owner of a separate interest for reducing or eliminating the watering of vegetation or lawns during any period for which the Governor has declared a state of emergency due to drought or a local government has declared a local emergency due to drought.

This bill:

1. Permits a HOA to impose a fine or assessment on an owner of a separate interest in an HOA if the property subject to the fine or assessment has previously received, and continues to receive, recycled water for landscaping irrigation.

2. Voids, or makes unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass.

3. Prohibits a CID from requiring a homeowner to reverse or remove water-efficient landscaping measures upon the conclusion of a state of emergency due to drought that were installed during that state of emergency.

Comments

Purpose. According to the author, the chronic drought has continued and California is now in its fourth year. On April 1, 2015, the Governor followed up on a proclamation of a drought state of emergency with Executive Order B-29-15. Among the provisions of the Executive Order was directive No. 2, stating that the State Water Resources Control Board shall impose restriction upon water suppliers to achieve a statewide 25% reduction in potable urban water usage through February 28, 2016. Restrictions in the amount of potable water used for outdoor landscaping are the primary tool.

Despite these directives, the author asserts that some HOAs are interpreting language in existing law to allow them to fine homeowners for restricting the watering of outdoor landscaping. Those HOAs are stating that if they (the HOA) use recycled water on some part of the common areas, the HOA may fine homeowners who refuse to use potable water upon their outdoor landscaping and thus let the lawn turn brown. The author believes that homeowners who voluntarily seek to aid the emergency drought situation should not be penalized by HOAs using the recycled water loophole in an attempt to maintain lush lawns during a drought.

Artificial turf provisions. This bill also contains the same provisions contained within AB 349 (Gonzalez), which was heard in the Senate Transportation and Housing Committee on June 24, 2015. This language was included to avoid chaptering issues if both this bill and AB 349 were signed by the Governor. Therefore, this bill prohibits an HOA from preventing a homeowner from installing artificial turf or synthetic grass. Existing law allows an HOA to apply landscaping rules that are included in the governing documents, so long as those rules do not prohibit or have the effect of prohibiting the use of low-water-using plants or prevent a homeowner from complying with a local water-efficient landscaping ordinance. This bill extends those protections to artificial turf or grass. This means an HOA may establish reasonable restrictions about the type of artificial grass that a homeowner may use so long as those restrictions do not, in effect, prevent a homeowner from installing artificial grass.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 8/28/15)

California Forward Action Fund

California Municipal Utilities Association

Eastern Municipal Water District

Irvine Ranch Water District

San Diego County Water Authority

Santa Margarita Water District

Western Municipal Water District

OPPOSITION: (Verified 8/28/15)

Community Associations Institute

Educational Community for Homeowners

ARGUMENTS IN SUPPORT: According to the Irvine Ranch Water District, this district is an example of a water agency struggling to meet the drought emergency by limiting outdoor landscaping. A homeowner in an HOA that receives water from that district informed the district that he would be fined by the HOA if he were to let his lawn go brown. That HOA interpreted existing law as allowing them to fine homeowners for non-watering if the HOA is using recycled water in common areas. This bill will restrict the ability for HOAs to impose a fine on a homeowner only in circumstances in which recycled water is used by both the HOA and the homeowner in common areas and in homes.

ARGUMENTS IN OPPOSITION: The Educational Community for Homeowners (ECHO) does not oppose the prohibition against an HOA imposing a fine or assessment against an owner of a home for reducing or eliminating the watering of vegetation or lawns during a drought, except where the HOA uses recycled water for all home or common area landscape irrigation.

ECHO opposes the provisions that were contained with AB 349 (Gonzalez) that are incorporated into this bill, however, because decisions made regarding landscaping in CIDs is, and should continue to be, made by the community and their elected board of directors. ECHO therefore resists attempts by the state to legislate a “one-size-fits-all” approach to CID governance. Both ECHO and Community Associations Institute also raise environmental and public health concerns related to the installation of artificial turf, including the possible unknown health impacts that could be caused by synthetic turf.

ASSEMBLY FLOOR: 60-17, 6/2/15

AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones-Sawyer, Lackey, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Olsen, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Wilk, Williams, Wood, Atkins

NOES: Travis Allen, Bigelow, Dahle, Beth Gaines, Gallagher, Grove, Jones, Kim, Maienschein, Mathis, Mayes, Melendez, Obernolte, Patterson, Steinorth, Wagner, Waldron

NO VOTE RECORDED: Chang, Chávez, Linder

Prepared by: Alison Dinmore / T. & H. / (916) 651-4121

8/31/15 16:30:41

**** END ****

SENATE COMMITTEE ON TRANSPORTATION AND HOUSING

Senator Jim Beall, Chair

2015 - 2016 Regular

Bill No: AB 786 Hearing Date: 8/25/2015

SUBJECT: Common interest developments: property use and maintenance

DIGEST: This bill prohibits a homeowners association (HOA) from imposing a fine or assessment against a homeowner for reducing or eliminating the watering of vegetation or lawns during a drought, except where the HOA uses recycled water for all home or common area landscape irrigation.

ANALYSIS:

Existing law:

1. Requires local agencies to adopt water-efficient landscape ordinances, as specified.

2. Establishes rules and regulations governing the operation of common interest developments (CIDs) and the respective rights and duties of HOAs and their members.

3. Permits the governing board of an HOA to adopt operating rules that apply generally to the management and operation of the CID or the conduct of the business and affairs of the HOA, provided that the rule is within the authority of the board to make, does not conflict with the HOA’s articles, bylaws, or governing law, and is reasonable.

4. Limits the authority of an HOA or the governing documents of a CID to regulate the use of a member’s separate interest.

5. Renders void and unenforceable any provision of the governing documents or architectural or landscaping guidelines or policies of an HOA that does any of the following:

1. Prohibits, or includes conditions that have the effect of prohibiting, the use of low-water-using plants as a group or as a replacement of existing turf; or

2. Has the effect of prohibiting or restricting compliance with a water-efficient landscape ordinance or regulation or restriction on the use of water.

6. Provides that an HOA may apply landscaping rules established in its governing documents that do not conflict with other law, as specified.

7. Prohibits an HOA from imposing a fine or assessment against an owner of a separate interest for reducing or eliminating the watering of vegetation or lawns during any period for which the Governor has declared a state of emergency due to drought or a local government has declared a local emergency due to draught.

This urgency bill:

1. Prohibits an HOA from imposing a fine or assessment against a homeowner for reducing or eliminating the watering of vegetation or lawns during a drought, except where the HOA uses recycled water for all home or common area landscape irrigation.

2. Voids, or makes unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass.

3. Prohibits a CID from requiring a homeowner to reverse or remove water-efficient landscaping measures upon the conclusion of a state of emergency due to drought, that were installed during that state of emergency.

COMMENTS:

1. Purpose. According to the author, the chronic drought has continued and California is now in its fourth year. On April 1, 2015, the Governor followed up on a proclamation of a drought state of emergency with Executive Order B-29-15. Among the provisions of the Executive Order was directive No. 2, stating that the State Water Resources Control Board shall impose restriction upon water suppliers to achieve a statewide 25% reduction in potable urban water usage through February 28, 2016. Restrictions in the amount of potable water used for outdoor landscaping are the primary tool.

According to the author, despite these directives, some HOAs are interpreting language in existing law to allow them to fine homeowners for restricting the watering of outdoor landscaping. Those HOAs are stating that if they (the HOA) use recycled water on some part of the common areas, the HOA may fine homeowners who refuse to use potable water upon their outdoor landscaping and thus let the lawn turn brown. The author believes that homeowners who voluntarily seek to aid the emergency drought situation should not be penalized by HOAs using the recycled water loophole in an attempt to maintain lush lawns during a drought.

2. Example of the problem. According to the author, Irvine Ranch Water District is an example of a water agency struggling to meet the drought emergency by limiting outdoor landscaping. A homeowner in an HOA that receives water from that district informed the district that he would be fined by the HOA if he were to let his lawn go brown. That HOA interpreted existing law as allowing them to fine homeowners for non-watering if the HOA is using recycled water in common areas. This bill will restrict the ability for HOAs to impose a fine on a homeowner only in circumstances in which recycled water is used by both the HOA and the homeowner in common areas and in homes.

3. Artificial turf provisions. This bill also contains the same provisions contained within AB 349 (Gonzalez), which was heard in this committee on June 24, 2015. This language was included to avoid chaptering issues if both this bill and AB 349 were signed by the Governor. Therefore, this bill would prohibit an HOA from preventing a homeowner from installing artificial turf or synthetic grass. Existing law allows an HOA to apply landscaping rules that are included in the governing documents, so long as those rules do not prohibit or have the effect of prohibiting the use of low-water-using plants or prevent a homeowner from complying with a local water-efficient landscaping ordinance. This bill would extend those protections to artificial turf or grass. This means an HOA may establish reasonable restrictions about the type of artificial grass that a homeowner may use so long as those restrictions do not, in effect, prevent a homeowner from installing artificial grass.

4. Opposition. The Educational Community for Homeowners (ECHO) does not oppose the prohibition against an HOA imposing a fine or assessment against an owner of a home for reducing or eliminating the watering of vegetation or lawns during a drought, except where the HOA uses recycled water for all home or common area landscape irrigation.

ECHO opposes the provisions that were contained with AB 349 (Gonzalez) that are incorporated into this bill, however, because decisions made regarding landscaping in CIDs is, and should continue to be, made by the community and their elected board of directors. ECHO therefore resists attempts by the state to legislate a “one-size-fits-all” approach to CID governance. ECHO also raises environmental and public health concerns related to the installation of artificial turf, including the “possible unknown health impacts that could be caused by synthetic turf,” and “concerns that the end of the life of synthetic turf will be in landfills.”

Related Legislation:

AB 349 (Gonzalez, 2015) — voids, or makes unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass. This bill is currently on the Senate Floor.

SB 759 (Lieu, 2011) — would have voided, or made unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass. This bill was vetoed by Governor Brown. This is an excerpt from the veto message:

The decision about choosing synthetic turf instead of natural vegetation should be left to individual homeowners associations, not mandated by state law. For this reason, I am returning this bill.

AB 1793 (Saldana, 2010) — would have voided, or made unenforceable, any provision of a CID governing document or architectural or landscaping guidelines or policies that prohibit the use of artificial turf or any other synthetic surface that resembles grass. This bill was vetoed by Governor Schwarzenegger. This is an excerpt from the veto message:

CIDs provide a system of self-governance through a community association, responsible for managing, maintaining, and repairing the common areas, and have the authority to enforce special rules. Decisions such as these regarding the use of artificial turf can be made by the homeowners and amended into their governing documents.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

POSITIONS: (Communicated to the committee before noon on Thursday,

August 20, 2015.)

SUPPORT:

California Forward Action Fund

Irvine Ranch Water District

OPPOSITION:

Educational Community for Homeowners

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 786

Author:(Levine)

As Amended Ver:April 21, 2015

Majority vote

SUMMARY: Makes changes to current law to ensure compliance with the federal National Voter Registration Act (NVRA) of 1993, as specified. Specifically, this bill:

1. Requires the Department of Motor Vehicles (DMV) in coordination with the Secretary of State (SOS), to the extent the State's Plan for implementation of the federal NVRA is inconsistent with the NVRA, to take additional steps to fully implement and further comply with 52 United States Code Section 20504.

2. Requires the DMV, if a registered voter requests that the DMV inform the SOS that the voter has moved to a different county, to notify the county elections official in both the county from which the voter has moved, and the county to which the voter has moved, of the change of address. Requires these provisions to become inoperative on July 1, 2016, as specified.

FISCAL EFFECT: According to the Assembly Appropriations Committee, one-time General Fund cost of $2.35 million to the DMV ($1.25 million) and SOS ($1.1 million). This cost is based on a recently-released budget proposal in the Governor's May revision to provide software/hardware upgrades to the DMV's in-person driver's license application process and online driver's license renewal process and for related updates to the SOS' voter registration systems. The proposal does not require separate legislation.

COMMENTS: According to the author, "In 1993, Congress signed into law a measure intended to make it easy for Americans to register to vote when they apply for a driver’s license. More than two decades later, California has yet to comply with that law… AB 786 will require the DMV to finally begin complying with the 22 year old federal 'Motor Voter' law by allowing eligible voters to utilize the driver’s license and California ID card application or renewal form as a voter registration form as well.

"This bill also addresses recent reports indicating that voters are being removed from the rolls against their will when they move from one county to another. These voters rely on DMV to process their voter registration change of address. However, DMV and the county elections offices fail to process the change of address in a timely manner."

When the NVRA took effect in 1995, several states failed to take the steps necessary to comply with the law and several also challenged the constitutionality of the federal mandate. Three separate lawsuits concerning California's implementation of the NVRA were filed in federal court: Voting Rights Coalition v. Pete Wilson, Pete Wilson v. United States of America, and United States of America v. Pete Wilson. All three cases were combined into a single proceeding and were heard before a federal district court in San Jose on March 2, 1995. The court found the NVRA constitutional, despite the lack of federal funding provided to states, and the court ruled that California was obligated to implement the NVRA. The court ordered the state to submit an implementation plan to the court for review to ensure conformity to the requirements of the NVRA.

The plan submitted by the state would have brought California into compliance with the requirements of the NVRA, however, there was one notable exception with respect to the method by which a person may register to vote at the DMV.

The NVRA explicitly requires a driver's license or identification application to be used as an application for voter registration, unless the applicant fails to sign the application. Additionally, NVRA provides that the voter registration portion of a driver's license application may not require any information that duplicates information required in the driver's license portion of the form, other than a second signature or other information that is necessary to determine an individual's eligibility to register to vote.

Despite the NVRA's clear requirements, the state's court-approved implementation plan instead called for a two-page application – one page for the driver's license application and one page for the voter registration form.

Prior bill analyses suggest the rationale for this two-page plan was due to cost, as the NVRA did not provide states with any direct funding or any mechanism for reimbursement of the costs associated with its implementation. The cost to create a single, computer generated form to serve as both a driver's license and voter registration application would have been significant.

Earlier this year a letter was sent to the SOS from American Civil Liberties Union Foundation of San Diego and Imperial Counties, Dēmos, Morrison & Forester LLP, and Project Vote stating that California is engaging in continuous and ongoing violations of Section 5 of the NVRA. The letter also stated that it constituted a formal notice of their intent to initiate litigation at the end of the statutory 90-day waiting period should California fail to remedy the violations of Section 5 of the NVRA, as specified.

Please see the policy committee analysis for a full discussion on this bill.

Analysis Prepared by: Nichole Becker / E. & R. / (916) 319-2094 FN: 0000646

Date of Hearing: May 20, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 786

Author:(Levine) – As Amended Ver:April 21, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill:

1. Requires the DMV, to the extent the state's implementation plan for the National Voter Registration Act (NVRA) of 1993 is inconsistent with federal law, to coordinate with the Secretary of State (SOS) to take additional steps to fully implement and further comply with NVRA. (This would require the DMV to use information on a driver's license (DL) application directly for voter registration rather than requiring a separate voter registration card (VRC) to be completed by the applicant.)

2. Requires the DMV, until July 1, 2016, if requested by a registered voter, to notify county elections officials in both counties when a voter moves from one county to another.

FISCAL EFFECT:

One-time cost of $2.35 million General Fund to the DMV ($1.25 million) and SOS ($1.1 million). This cost is based on a recently-released budget proposal in the Governor's May revision to provide software/hardware upgrades to the DMV's in-person DL application process and online DL renewal process and for related updates to the SOS's voter registration systems. The proposal does not require separate legislation.

COMMENTS:

1. NVRA Background. Also known as the "Motor Voter Act," enactment of the NVRA in 1993 was intended to enhance and increase voting opportunities for eligible voters to register to vote and maintain their registration. The NVRA requires states to provide persons the opportunity to apply to register to vote for federal elections through various methods, including requiring voter registration opportunities at motor vehicle agencies.

Several states failed to take the steps necessary to comply with the law and several also challenged the constitutionality of the federal mandate. In 1994, Governor Pete Wilson signed an executive order directing state and local agencies to implement the NVRA only to the extent that federal funding was provided. Three separate lawsuits concerning California's implementation of the NVRA were filed in federal court, and the courts found the NVRA constitutional, despite the lack of federal funding provided to states. The courts also ruled that California was obligated to implement the NVRA and ordered the state to submit an implementation plan to the court for review to ensure conformity of the law's requirements.

DMV's Process. DMV's implementation of NVRA provides every person who applies for or renews a driver's license or identification card, or submits a change of address form, with a VRC. The VRC can be used to register to vote or to re-register after a change in name, address, or party preference. When voters update their address with a DMV office, the new address is sent electronically to the SOS's statewide voter registration database, which then shares the information with county elections officials who update voter registration records. When voters move to a new county, the DMV instructs them to complete a new VRC. DMV accepts completed VRCs and forwards them to the SOS or the county where the voter lives.

This process does not comply with the federal NVRA, which generally prohibits an individual who wants to register to vote to be required to provide any information that duplicates information already required on the driver's license form. Nevertheless, the federal court reviewed and approved the state's implementation plan, and according to the SOS, the state's current provisional voting laws meet NVRA requirements.

Earlier this year, a letter was sent to the SOS from ACLU Foundation of San Diego and Imperial Counties, Dēmos, Morrison & Forester LLP, and Project Vote stating that California is engaging in continuous and ongoing violations of Section 5 of the NVRA. The letter also stated that it constituted a formal notice of their intent to initiate litigation at the end of the statutory 90-day waiting period should California fail to remedy the violations of Section 5 of the NVRA, as specified.

2. Purpose. The author argues that DMV should become in full compliance with NVRA, which he asserts will ease the voter registration process. According to the author, this bill also addresses reports indicating that voters are being removed from the rolls against their will when they move from one county to another. These voters rely on DMV to process their voter registration change of address. However, DMV and the county elections offices fail to process the change of address in a timely manner.
   
   

3. Related Legislation. AB 1461 (Gonzalez), also on today's committee agenda, requires the SOS to use records from the DMV to automatically register to vote those individuals who are eligible.
   
   

4. Prior Legislation. AB 1122 (Levine) of 2013, which was similar to this bill, was held on this committee's Suspense file.

Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081

Date of Hearing: April 27, 2015

ASSEMBLY COMMITTEE ON TRANSPORTATION

Jim Frazier, Chair

ABPCA Bill Id:AB 786

Author:(Levine) – As Amended Ver:April 21, 2015

SUBJECT: National Voter Registration Act of 1993

SUMMARY: Makes changes to current law to ensure compliance with the federal National Voter Registration Act of 1993 (Motor Voter Act), as specified. Specifically, this bill:

1. Requires the Department of Motor Vehicles (DMV), in coordination with the Secretary of State (SOS), to make the state's Implementation Plan of the Motor Voter Act consistent with Motor Voter Act requirements related to simultaneous applications for a voter registration and a motor vehicle license.

2. Requires DMV, if requested to do so by a registered voter, to notify county elections officials of both counties when a voter moves from one county to another.

EXISTING LAW:

1. Requires each state to offer voter registration services at motor vehicle agency offices as well as provide public assistance offices, offices that provide state-funded programs primarily engaged in providing services to persons with disabilities, Armed Forces recruitment offices, and other state and local offices within the designated as Motor Voter Act voter registration agencies.
   
   

2. Requires the DMV to provide the opportunity to register to vote to individuals who apply for, renew, or change an address for a driver's license or personal identification card issued by the DMV.
   
   

3. Requires a driver's license or identification application to be used as an application for voter registration, unless the applicant fails to sign the application.
   
   

4. Requires change of address information received by the DMV to be used for the purpose of updating voter registration records, unless the registrant chooses otherwise.
   
   

5. Provides that a person may not be registered to vote except by affidavit of registration.
   
   

FISCAL EFFECT: AB 786 is similar to AB 1122 (Levine) of 2013. The Assembly Appropriations Committee analysis indicated that AB 1122 would result in one-time costs to DMV in the range of $500,000 to redesign forms and that costs to design an alternative process to electronically transfer information would be substantially higher.

COMMENTS: The federal Motor Voter Act, signed into law in 1993, was intended to make it easier for Americans to register to vote when they apply for a driver's license. According to the author, however, California has yet to come into compliance with this federal law. Specifically, the author points out that the Motor Voter Act requires that DMV offices to allow motorists to register to vote when they apply for a driver's license and requires DMV to update voting records when motorists change addresses. The author points out that currently DMV implements only part of the Motor Voter requirement, by requiring the motorist to completely fill out the entire voter registration form. This is contrary to the Motor Voter Act that requires applicant's registration form to be automatically filled in except for the signature. Once voter registration is completed, the author contends that DMV fails to adequately update voter registration records, as required by the Motor Voter Act, when a motorist makes a change of address. The author points to very low voter registration rates in California as evidence that DMV should come into compliance with federal Motor Voter Act requirements.

To address this issue, the author has introduced AB 786 which requires DMV to come into compliance with the Motor Voter Act requirements in general and specifically with provision of federal law that require: 1) that a completed driver's license application shall also serve as a voter registration, unless the applicant fails to sign the voter registration application; 2) that any change of address submitted to the DMV for the purposes of a driver's license must also serve as notification of change of address for voter registration; and 3) that the completed forms for voter registration that are turned into the DMV be transmitted to the state elections official not later than 10 days after acceptance. Additionally, the bill also specifies that when a registered voter requests that DMV make a voter registration change of address from one county to another, the DMV must notify the county elections officer in both counties.

When the Motor Voter Act took effect in 1995, California, along with other states challenged the constitutionality of the federal mandate and three separate lawsuits concerning California's implementation of the Motor Voter Act were filed in federal court. The court found that the Motor Voter Act was constitutional, despite the lack of federal funding provided to states, and ruled that California was obligated to implement the Motor Voter Act. California submitted to the court an implementation plan to ensure conformity with Motor Voter Act requirements.

Despite the Motor Voter Act's clear requirements, the state's court-approved implementation plan instead called for a two-page application – one page for the driver's license application and one page for the voter registration form. The rationale for this two-page plan was cost, as the Motor Voter Act did not provide states with any direct funding or any mechanism for reimbursement of the costs associated with its implementation. According to DMV, the cost to create a single, computer generated form to serve as both a driver's license and voter registration application would have been significant. On August 12, 1994, then Governor Pete Wilson signed Executive Order W-98-94 directing state and local agencies to implement the Motor Voter Act only to the extent that federal funding was provided.

According to the SOS's 2011 Motor Voter Act handbook, every person who visits a DMV office to apply for or renew a driver's license or identification card or to change an address receives a voter registration card (VRC). Every person who receives a driver's license or identification renewal form by mail also receives a VRC. The VRC can be used to register to vote or to re-register after a change in name, address, or party preference. When voters update their address with a DMV office, the new address is sent electronically to the SOS's statewide voter registration database, which then shares the information with county elections officials who update local voter registration records. When voters move to a new county, DMV instructs them to complete a new VRC to initiate the change of address process. To expedite this, DMV accepts completed VRCs and forwards them to the SOS or the county election officials.

The Motor Voter Act permits a county elections official to cancel the prior registration of a voter who has moved to a different county after it attempts to confirm the voter's change of address. In addition, existing law permits cancellation if the change-of-address notice comes from the DMV or another designated agency (typically SOC) or if the voter initiates the request. Moreover, state law permits a county elections official to cancel the prior voter registration of a voter who verifies in writing that he or she has moved to a different county.

According to SOS's Motor Voter Handbook, the DMV is required to collect and transmit electronic change-of-address data to elections officials on a daily basis, which allows for automatic change-of-address updates for many voters. The SOS then transmits the information to local county elections officials. The county elections official, however, may not automatically update the addresses of voters who move from one county to another because current law requires voters who move to a new county to re-register to vote by completing and signing a new VRC. AB 786 requires DMV to notify elections officials of both counties (the county the applicant moved from and the county the applicant is moving to) when the voter requests the DMV to make a voter registration change of address.

According to the SOS, VoteCal, the federally required statewide voter database, should resolve this process because under VoteCal a voter will have a single voter file that will follow them when they move, between and within counties. When a voter moves from one county to another, the voter record will be maintained at the original address (in the originating county) until the record is updated. If there is a match between a change of address transaction and an existing voter record, VoteCal will automatically update the existing voter registration record with the new data. VoteCal is currently scheduled to be fully operational in June 2016.

Double referral: This bill passed out of the Assembly Elections and Redistricting Committee on April 15, 2015 with a 5-1 vote.

Related legislation: AB 1461 (Gonzalez), requires the SOS to use records from the DMV to automatically register to vote those individuals who are eligible, as specified. AB 1461 is scheduled to be heard in this committee on April 27, 2015.

Previous legislation: AB 1122 (Levine) of 2013, which was substantially similar to this bill, was held in the Assembly Appropriations Committee on the suspense file.

REGISTERED SUPPORT / OPPOSITION:

Support

None on file

Opposition

None on file

Analysis Prepared by: Victoria Alvarez / TRANS. / (916) 319-2093

Date of Hearing: April 15, 2015

ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING

Sebastian Ridley-Thomas, Chair

ABPCA Bill Id:AB 786

Author:(Levine) – As Introduced Ver:February 25, 2015

SUBJECT: National Voter Registration Act of 1993.

SUMMARY: Makes changes to current law to ensure compliance with the federal National Voter Registration Act (NVRA) of 1993, as specified. Specifically, this bill:

1. Requires the Department of Motor Vehicles (DMV) in coordination with the Secretary of State (SOS), to the extent the State's Plan for implementation of the federal NVRA is inconsistent with the NVRA, to take additional steps to fully implement and further comply with Section 20504 of Title 52 of the United States Code.
   
   

2. Prohibits a county elections official, upon notification by the DMV that a voter registered to vote in the county has moved to a different county, from canceling that voter’s prior registration until the voter is registered in the county to which he or she has moved, except at the voter’s request.
   
   

EXISTING LAW:

1. Requires each state to offer voter registration services at motor vehicle agency offices, offices that provide public assistance, offices that provide state-funded programs primarily engaged in providing services to persons with disabilities, Armed Forces recruitment offices, and other state and local offices within the state designated as NVRA voter registration agencies.
   
   

2. Requires the DMV to provide the opportunity to register to vote to individuals who apply for, renew, or change an address for a driver's license or personal identification card issued by the DMV.
   
   

3. Requires a driver's license or identification application to be used as an application for voter registration, unless the applicant fails to sign the application.
   
   

4. Requires change of address information received by the DMV to be used for the purpose of updating voter registration records, unless the registrant chooses otherwise.
   
   

5. Provides a person may not be registered to vote except by affidavit of registration.
   
   

6. Provides that a properly executed affidavit of registration is deemed to be effective upon receipt of the affidavit by the county elections official if received on or before the 15th day before election day, postmarked on or before the 15th day prior to the election and received by mail by the county elections officials, or submitted to the DMV or accepted by any other public agency designated as a voter registration agency on or before the 15th day prior to the election.
   
   

7. Permits a county elections official to cancel the prior registration of a voter who has moved to a different county after it attempts to confirm the voter's change of address, as specified. Permits the cancellation if the change-of-address notice comes from the DMV or another designated agency, and if the voter initiates the request or verifies, in writing, that he or she has moved to a different county.

FISCAL EFFECT: Unknown

COMMENTS:

1. Purpose of the Bill: According to the author:

In 1993, Congress signed into law a measure intended to make it easy for Americans to register to vote when they apply for a driver’s license. More than two decades later, California has yet to comply with that law. It is unacceptable for the DMV to ignore federal law. We need to make it easy for Californians to register to vote.

AB 786 will require the DMV to finally begin complying with the 22 year old federal “Motor Voter” law by allowing eligible voters to utilize the driver’s license and California ID card application or renewal form as a voter registration form as well.

AB 786 creates an opt-in approach to registering voters at the DMV. The opt-in approach of AB 786 assures that voters are offered the opportunity to sign a statement under penalty of perjury that they are eligible to vote and the opportunity to designate a party affiliation.

This bill also addresses recent reports indicating that voters are being removed from the rolls against their will when they move from one county to another. These voters rely on DMV to process their voter registration change of address. However, DMV and the county elections offices fail to process the change of address in a timely manner. This bill simply provides that in such cases, the voter cannot be removed from one county until they are added onto the other county.

2. National Voter Registration Act: On May 20, 1993, President Bill Clinton signed into law the NVRA, which had an effective date of January 1, 1995. Also known as the "Motor Voter Act," the enactment of the NVRA was intended to enhance and increase voting opportunities for eligible voters to register to vote and maintain their registration. In addition to other methods of voter registration, the NVRA requires states to provide the opportunity to apply to register to vote for federal elections through various methods. Section 5 of the NVRA requires states to offer voter registration opportunities at motor vehicle agencies. Section 6 of the NVRA requires states to provide voter registration opportunities by mail-in application. Finally, Section 7 of the NVRA requires states to offer voter registration opportunities at all offices that provide public assistance or state-funded programs primarily engaged in providing services to persons with disabilities. Armed Forces recruitment offices must also provide voter registration services. Section 7 of the NVRA also requires a state to designate "other offices" within the state as voter registration agencies. In addition to expanding opportunities to register to vote, the NVRA imposes requirements on states to protect the integrity of the electoral process and ensure that accurate and current voter registration rolls are maintained.
   
   On August 12, 1994, the Governor Pete Wilson signed Executive Order W-98-94 directing state and local agencies to implement the NVRA only to the extent that federal funding was provided.

3. How Does The Current Process Work? According to the SOS's 2011 NVRA Manual, every person who visits a DMV office to apply for or renew a driver's license or identification card or to change an address receives a voter registration card (VRC). Every person who receives a driver's license or identification renewal form by mail also receives a VRC. The VRC can be used to register to vote or to re-register after a change in name, address, or party preference. When voters update their address with a DMV office, the new address is sent electronically to the SOS's statewide voter registration database, which then shares the information with county elections officials who update voter registration records. When voters move to a new county, the DMV instructs them to complete a new VRC. The DMV accepts completed VRCs and forwards them to the SOS or the county where the voter lives.
   
   The NVRA clearly prohibits an individual who wants to register to vote from being required to provide any information that duplicates information already required on the driver's license form, except for other information that is necessary to determine an individual's eligibility to registration to vote. Similarly, federal law requires a DMV change of address form to serve as a notification of a change of address for voter registration, unless the individual states otherwise. However, according the representatives from the DMV and the SOS, the current process is a two-step process. For instance, a person applying for a driver's license must fill out an additional VRC to register to vote. Furthermore, a person that moves to a new county is required to fill out a separate VRC to change the address at which he or she is registered to vote.

4. Implementing NVRA History: When the NVRA took effect in 1995, several states failed to take the steps necessary to comply with the law and several also challenged the constitutionality of the federal mandate. States involved in the first round of cases included California, Illinois, Michigan, Mississippi, Pennsylvania, New York, South Carolina, Vermont, and Virginia.
   
   Three separate lawsuits concerning California's implementation of the NVRA were filed in federal court: Voting Rights Coalition v. Pete Wilson, Pete Wilson v. United States of America, and United States of America v. Pete Wilson. All three cases were combined into a single proceeding and were heard before a federal district court in San Jose on March 2, 1995. The court found the NVRA constitutional, despite the lack of federal funding provided to states, and the court ruled that California was obligated to implement the NVRA. The court ordered the state to submit an implementation plan to the court for review to ensure conformity of the requirements of the NVRA.
   
   The plan submitted by the state would have brought California into compliance with the requirements of the NVRA, however, there was one notable exception with respect to the method by which a person may register to vote at the DMV.
   
   As mentioned above, the NVRA explicitly requires a driver's license or identification application to be used as an application for voter registration, unless the applicant fails to sign the application. Additionally, NVRA provides that the voter registration portion of a driver's license application may not require any information that duplicates information required in the driver's license portion of the form, other than a second signature or other information that is necessary to determine an individual's eligibility to register to vote.
   
   Despite the NVRA's clear requirements, the state's court-approved implementation plan instead called for a two-page application – one page for the driver's license application and one page for the voter registration form.
   
   Prior bill analyses suggest the rationale for this two-page plan was due to cost, as the NVRA did not provide states with any direct funding or any mechanism for reimbursement of the costs associated with its implementation. The cost to create a single, computer generated form to serve as both a driver's license and voter registration application would have been significant.

5. Is This Bill Necessary? According to the SOS's 2011 NVRA Manual, the NVRA did not require the adoption of state law to give it effect, thus California did not adopt implementing statues or regulations under the NVRA. Furthermore, once the federal court reviewed and approved the plan for conformity with the requirements of the NVRA, it was confirmed that the issue of Motor Voter had been decided by the federal court and thus was moot.
   
   However, as mentioned above, while California's NVRA Implementation Plan was approved by a federal court, a strict reading of the NVRA would suggest that the state does not fully comply with the NVRA. This bill has the potential to highlight this matter and finally bring California into full compliance with Motor Voter.
   
   In fact, earlier this year a letter was sent to the SOS from ACLU Foundation of San Diego and Imperial Counties, Dēmos, Morrison & Forester LLP, and Project Vote stating that California is engaging in continuous and ongoing violations of Section 5 of the NVRA. The letter also stated that it constituted a formal notice of their intent to initiate litigation at the end of the statutory 90-day waiting period should California fail to remedy the violations of Section 5 of the NVRA, as specified.
   
   
   

6. Change of Address: The NVRA permits a county elections official to cancel the prior registration of a voter who has moved to a different county after it attempts to confirm the voter's change of address, as specified. In addition, existing law permits cancellation if the change-of-address notice comes from the DMV or another designated agency or if the voter initiates the request. Moreover, state law permits a county elections official to cancel the prior voter registration of a voter who verifies in writing that he or she has moved to a different county.
   
   According to the SOS's NVRA Handbook, the DMV collects and transmits electronic change-of-address data to elections officials on a daily basis, which allows for automatic change-of-address updates for many voters. The elections official, however, may not automatically update the addresses of voters who move from one county to another because current law requires voters who move to a new county to re-register to vote by completing and signing a new VRC. This bill prohibits a county elections official, upon notification by the DMV that a voter registered to vote in the county has moved to a different county, from canceling that voter’s prior registration until the voter is registered in the county to which he or she has moved, except at the voter’s request. According to the author's background information, in many cases, when a voter moves from one county to another, the DMV and the counties do not share information or coordinate. Consequently, the voter may be removed from the rolls of the county that the voter left, but is not yet added to the rolls of the county to which the voter is moving. This means that the voter is not registered to vote anywhere in California even though the voter intends to vote and believed that by making the change of address at the DMV, this change would automatically update the voter registration as well.
   
   In practice, this bill allows an individual to be registered in two counties until the new county where the voter has re-registered contacts the previous county of registration. However, according to the SOS's office, VoteCal, the federally required statewide voter database, should resolve this process because under VoteCal a voter will have a single voter file that will follow them when they move, between and within counties. When a voter moves from one county to another, the voter record will be maintained at the original address (in the originating county) until the record is updated. If there is a match between a change of address transaction and an existing voter record, VoteCal will automatically update the existing voter registration record with the new data. VoteCal is currently scheduled to be fully operational in June 2016.
   
   
   

7. Related Legislation: AB 1461 (Gonzalez), which is pending in the Assembly Transportation Committee, would require the SOS to use records from the DMV to automatically register to vote those individuals who are eligible, as specified.
   
   
   

8. Previous Legislation: AB 1122 (Levine) of 2013, which was substantially similar to this bill, was held on the Assembly Appropriations Committee's suspense file.
   
   SB 35 (Padilla), Chapter 505, Statutes of 2012, added the California Health Benefit Exchange to the list of public assistance agencies required by the NVRA to provide voter registration opportunities and codified various other provisions of the NVRA.
   
   
   

9. Double-Referral: This bill has been doubled referred to the Assembly Transportation Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

None on file.

Opposition

None on file.

Analysis Prepared by: Nichole Becker / E. & R. / (916) 319-2094