2023 LEGISLATIVE SESSION – THE EARLY RETURNS

Not all of the 19^th Century rules governing the rhythms of California’s legislative session are without value. The one requiring that bills must sit idle for a minimum of 30 days after filing is one of them. This gives everyone plenty of time to sift through the roughly 2,500 bills that were filed for consideration this session, most of which were filed within 10 days of last Friday’s deadline.

Upon completion of our “sift,” we’ll have a solid idea not only of which bills to track, but also which bills among those have traction. Many of the 2,500 filings are more performative than substantive, although today’s performance is often positioning for tomorrow’s traction. And that too merits tracking in terms of paying close heed to the arguments raised and the arguers who raise them.

Here are the early returns from Friday’s deadline. We are sure to find more in the coming week.

AB-363 Pesticides: neonicotinoids for nonagricultural use: reevaluation: regulations. [Bauer-Kahan; D-San Ramon]
This bill would require the department, by July 1, 2024, to publish a reevaluation of the latest science regarding the impacts of neonicotinoid pesticides, as defined, on pollinating insects, aquatic ecosystems, and human health when used for the nonagricultural protection of outdoor ornamental plants, trees, and turf, and, by July 1, 2026, to adopt regulations governing that use that are necessary to protect the health of honeybees, native bees, and other pollinating insects, aquatic ecosystems, and human health, as provided. [Click here to read a PDF version of the entire bill]

A stronger bill in terms of outright banning the use of neonicotinoids for nonagricultural use was vetoed by Governor Newsom last year. His veto message expressed concern about circumventing the state’s regulatory process while the Department of Pesticide Regulation was considering new regulations pertaining to both agricultural and nonagricultural uses.

Although the pollinators the bill aims to protect do not feast on turf, neonics do play a role in golf course turf management. Their loss would leave a hole in the game’s pest control toolbox. However, their use in golf is much more akin to the agricultural application that is being exempted than it is to the urban/suburban backyard use that would seem to be the aim of the bill’s co-sponsor Natural Resources Defense Council (NRDC). The Golf Course Superintendents Association of America (GCSAA) did make this point in its veto plea to Governor Newsom. Whether that plea proved dispositive, or part of a greater compelling argument from similarly situated sectors, may remain to be seen in the 2023 legislative session, where no doubt GCSAA and its allied partners within the California Alliance for Golf (CAG) will make the same plea for a parallel exemption for a golf course use restricted to licensed applicators and more closely regulated than required by current practice. It's important to note that CAG is not opposed to restrictions upon neonicotinoids; it merely questions a blunderbuss approach that ensnares harmless applications.

AB-1572 Potable water: nonfunctional turf. [Friedman; D-Burbank]
This bill would make legislative findings and declarations concerning water use, including that the use of potable water to irrigate nonfunctional turf is wasteful and incompatible with state policy relating to climate change, water conservation, and reduced reliance on the Sacramento-San Joaquin Delta ecosystem. The bill would direct all appropriate state agencies to encourage and support the elimination of irrigation of nonfunctional turf with potable water. This bill would prohibit the use of potable water, as defined, for the irrigation of nonfunctional turf located on commercial, industrial, municipal, institutional, and multifamily residential properties, as specified.

This is one of two bills (AB 1573 in addition) that Assembly Member Friedman has filed to make clear the state’s desire to phase out the use of potable water to irrigate those categories of turf deemed nonfunctional. As part of the class of “Special Landscape Areas (SLA’s),” golf along with parks, sports fields, and cemeteries are considered “functional” turf.

AB 1573 clearly maintains this, stating emphatically, “Nonfunctional turf” means turf that is solely ornamental and not regularly used for human recreational purposes or for civic or community events. Nonfunctional turf does not include sports fields and turf that is regularly used for human recreational purposes or for civic or community events.”

However, AB 1572 makes special reference to one longtime member of the SLA class in a way amenable to interpretation as opening others to excision: “Nonfunctional turf” means any turf that is not located in areas designated by a property owner or a government agency for recreational use or public assembly. Nonfunctional turf does not include turf located in cemeteries.

As a sector defined in too many minds as too much land that uses too much water to serve the too few who have had too much for too long, golf would be wise to take note of this potential opening and recognize that in a Capitol sure to be consumed with a permanent loss of Colorado River allocation, there may be legislators keen to consider excising certain disfavored members of the current SLA Class. We don’t suggest that Laura Friedman is in that group. She harbors no hostility toward the California golf community; indeed, she has been warm to golf. But given the moment, the environmental community’s strong support of these bills, palpable hostility to golf among a minority of legislators, and the increasing realization that Mother Nature not only didn’t but isn’t capable of bailing out a long overallocated Colorado Basin in the throes of its worst drought in 1,500 years – well, suffice it to say golf beware.

Click here to read AB 1572. Click here to read AB 1573.

SB-423 Land use: streamlined housing approvals: multifamily housing developments. [Wiener; D-San Francisco]

This bill would authorize the Department of General Services to act in the place of a locality or local government, at the discretion of that department, for purposes of the ministerial, streamlined review for development on property owned by or leased to the state. The bill would delete the January 1, 2026, repeal date, thereby making these provisions operative indefinitely.

This bill would modify the above-described objective planning standards, including by deleting the standard that prohibits a multifamily housing development from being subject to the streamlined, ministerial approval process if the development is located in a coastal zone, and by providing an alternative definition for “affordable housing costs” for a development that dedicates 100% of units, exclusive of a manager’s unit or units, to lower income households. The bill would, among other modifications, delete the objective planning standards requiring development proponents to pay at least the general prevailing rate of per diem wages and utilize a skilled and trained workforce and would instead require a development proponent to certify to the local government that certain wage and labor standards will be met, including a requirement that all construction workers be paid at least the general prevailing rate of wages, as specified. [Click here to read the Legislative Counsel’s Summary. The bill is excruciatingly detailed; those with such appetite can click here to read the full bill]

This bill, for which there is a companion version in the Assembly from Buffy Wicks (D-Oakland, Chair of Housing Committee), promises to be one of the most scrutinized and consequential bills in the 2023 hopper. The way we would boil down its 39 pages is as follows. The controlling piece of legislation regarding the incentivization of affordable housing, SB 35, also authored by Senator Wiener, has proven nettlesome in part due to what developers find two key obstacles: 1) A too high percentage “affordable” requirement, and 2) a set of labor standards that make “affordability” unattainable. SB 423 purports to solve the 2^nd obstacle in a way that renders the 1^st obstacle moot. While it has secured the endorsement of some sectors of California’s labor community, most notably the Carpenters, it has thus far incurred the opposition of the Building Trades, presaging in our view a replay of last year’s drama concerning Buffy Wicks’ AB 2011, which managed at the last minute to find the sweet spot of common ground to earn the support of the Building Trades and become law – in the minds of many political commentators and soothsayers an epochal achievement that contains the promise of actually constructing housing in this housing starved state.

While we don’t see or anticipate any direct assaults on California’s golf stock like AB 672 or 1910 in this session and are gratified that Cristina Garcia’s old Assembly District is now represented by Blanca Pacheco (D-Downey), a member of the Latina Golfers Association, we trust you understand the wisdom in tracking any and all bills that take control over planning decisions away from local cities and repose them in Sacramento – and repose them by right per the truncated permitting processes euphemistically referred to as “ministerial.”

Golf cannot escape nor much mitigate its encumbrance of large swaths of contiguous land in precisely those urban/suburban enclaves ripe for housing. Any who doubt just how critical the state deems its housing shortage need only read the state's latest report card. Bills like SB 423 are going to keep coming quickly and furiously for as long as Californians of all stripes, locations, and political affiliations identify housing as their number one concern. So are the bills that keep moving housing up and open space/recreation down in the Surplus Land Act’s assignments of priority.

While golf can prevent being singled out among the many other land uses also ripe for housing, it cannot stop the stampede toward those obviations of local control and those assignments of priority capable of breaking the logjam that has long prevented the state from meeting its residents’ housing needs, albeit if California keeps hemorrhaging 500,000 souls, we may be closer to meeting our housing needs than we think. Of course, there are serious consequences to any city, region, or state that becomes hollowed out.

What golf can do is everything within its power to make real a community value proposition not founded on an economic metric guaranteed to make a compelling case for housing and other commercial uses, otherwise known as the traditional economic impact report (spoiler alert: Golf lags far behind other uses in terms of employment generation, tax generation, and economic multiplier effects), but founded upon the many quality of life, quality of environment, and quality of community values the game uniquely provides the places in which golf courses are located.

Call us foolish if you like but as persons responsible for getting results in a rather tough environment, we find it wise to lead with strengths, not weaknesses, albeit we do very much take our weaknesses into account with every strength we project.