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HOA LAW BLOG Asks:
“Are We Really That Opposed to Artificial Turf?”

HOA Law Firm Supports AB.1793 - California and Artificial Grass

An Editorial by

David C. Swedelson, Esq.,

Senior Partner, Swedelson & Gottlieb

Many of you received an urgent request by the California Legislative Action Committee (CLAC) for grassroots letters to be sent to the legislature opposing Assembly Bill 1793 (Saldana). I am not sure that I agree with what CLAC stated, and I really wonder if this is legislation that the CID industry should oppose.

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I do not now personally have any artificial turf at my home, but I have considered it. I do have neighbors that have installed it, and my daughter’s school installed it on the athletic field. I do not have an interest in any company that manufactures, sells or installs artificial turf.

Today’s artificial turf looks a lot different than the “Astroturf” we may be familiar with. Esthetically, the newer products I have seen look like real grass. Even if I get on my hands and knees to check, it is hard to tell if it is artificial grass.

We should seriously consider every opportunity to conserve precious water resources in California, and this legislation is an excellent example.

The proposed legislation allows associations to set quality and esthetic standards for artificial turf, as long as it does not have the effect of prohibiting it outright, so there is no reason to believe that property values will be negatively impacted.

The bill was passed on the State Assembly floor with overwhelming support, 69 Ayes and only 1 No vote. AB 1793 is currently under review in the State Senate, and we will be supporting this bill.

CLAC set out a number of reasons we should oppose AB 1793, and I have to say that I do not agree with CLAC’s reasoning. CLAC’s letter stated the following reasons for opposing this legislation, and I have included my comments on each point.

(b)(2) This section shall not prohibit an association from applying landscape rules and regulations established in governing documents that establish design standards and quality standards for the installation of artificial turf, or any other synthetic surface that resembles grass, to the extent the rules and regulations conform with the requirements of paragraph (2) of subdivision (a).

AB 1793 provides for the following additions to Civil Code Section 1353.8:

1353.8(a)(2) [A provision of the governing documents shall be void and unenforceable if the provision] prohibits, or includes conditions that have the effect of prohibiting, the use of artificial turf or any other synthetic surface that resembles grass.

1. It singles out a class of property owners in common interest developments and may violate the equal protection clause of the Constitution.

I do not see how the proposed legislation that is designed to help owners that want to save water (which we should all agree is a good thing) will be singled out, and is this really any different then past legislation that requires community associations to permit the installation of low water-using plants and solar power systems?

2. Artificial grass may ruin a community’s curb appeal and reduce owner and neighbor’s property value.

I do not see how this is possible if the owners are required to use appropriate product. As I said above, I have seen artificial turf installed at some homes and elsewhere that looks so realistic that I have had to get on my hands and knees to inspect it up close, and even then, it was hard to see that it was not real. So what is the problem, so long as associations get to set standards? And think about the water savings, not to mention the environmental benefit from the absence of toxic chemicals (fertilizers, etc.) that will not be used and as a consequence, and which will not run off into our waterways.

3. Existing law already mandates local public agencies to adopt and enforce water usage by which CIDs must abide.

But what does this have to do with owners who want to remove their water-intensive, chemical dependent lawn and replace it with nice looking, always green artificial turf?

4. Civil Code 1353.8 already addresses water usage and landscaping in CIDs per AB 1061 (Lieu), which just became effective in January.

That legislation prohibits community associations from “prohibiting the use of low water-using plants as a group, as well as prohibiting or restricting compliance with a local water-efficient landscape ordinance or water conservation measure.” That legislation had nothing to do with artificial turf! Also, local ordinances may not necessarily address artificial turf.

5. It micromanages communities and overrides local control.

We seem to make this argument each time the legislature tries to pass a new law that impacts community associations (and the legislature has made about 47 changes to the Davis-Stirling Act since the mid 1980s when it was first adopted). In this case, the legislature wants to ensure that individuals have the power to choose whether to install artificial turf. CLAC’s use of the word “micromanaging” suggests that there will be no impact outside a particular community – to the contrary, water conservation benefits all of California.

6. It lacks definition of “grass”… what variety, color shade, seasonal vs. perennial, length?

The bill allows associations to set standards, so this is not really a reason to oppose the bill. An association might even choose to require a specific kind or type of artificial grass in its Rules and Regulations or Architectural Guidelines to ensure uniformity.

7. It statutorily promotes certain company products.

This is just wrong. I read the bill and do not see that it promotes any particular product. Why is CLAC raising this non-issue?

8. It does not address possible water runoff, flammability, and toxicity issues identified in various governmental studies.

I did a little checking, and apparently, there is a debate as to this issue. But my limited research showed me that on balance, artificial turf is less toxic than maintaining real grass. Growing grass requires chemicals, such as fertilizer, herbicide, and pesticides. These are potent chemicals that include numerous carcinogens.

So what about artificial turf? I read one report out of Connecticut from Environment And Human Health, Inc. (EHHI), which claims that EHHI did some testing that showed the release, when heated, of four potentially hazardous chemicals from the tire infill in synthetic playing fields. But EHHI’s report gives no details on that testing or their testing protocol.

It was suggested that the laboratory testing done by EHHI bore little relationship to the real world conditions where the turf is in the open air, and where any chemicals released most likely would be quickly dispersed. Moreover, those same chemicals are emitted from tires on highways, so they are already in the air.

9. CLAC suggests that this bill, if passed, will increase an HOA’s liability and generate lawsuits due to harm that can be caused by the toxic chemicals used in the manufacturing of the artificial lawns.

I do not see how this is possible. Liability for what? If the legislation is passed, community associations will be mandated to allow artificial turf. So, no one can expect to win a case against their association because it allowed another owner to install artificial turf when mandated to do so by the legislature.

Typically, community associations are not liable for any defects in construction that the association approves. Saying that a community association will be held liable for allowing an owner to install artificial turf is like saying that an association will be held liable for allowing an owner to plant poisonous oleander. Following CLAC’s logic, should there not be a huge backlog of lawsuits against associations for allowing owners to utilize toxic chemicals such as fertilizers on their real grass lawns? We are not aware of any.

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original post:

http://www.hoalawblog.com/2010/06/are_we_really_that_opposed_to_1.html

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