Droughts & Fires

TIPS ON SURVIVING THE EXTREME WEATHER APOCALYPSE

By Jasmine F. Hale, Esq.

Extreme weather events are happening with greater frequency and more potent impacts. In 2021, Cal- Fire estimates approximately 2,568,948 acres throughout California were burned resulting in $55 billion in damages. The National Drought Mitigation Center estimates at least 97.5% of California is located within a “severe drought” zone, meaning longer, higher intensity fire seasons.

Virtually, all communities are affected by drought and fire concerns. This article will provide communities with a roadmap on how to successfully (and legally) plan for these issues before it is too late.

1. Be proactive to lower fire danger and drought risk.

Communities cannot fully eliminate the risks associated with extreme weather events, but they can lower their negative impacts. The most important step is to proactively identify physical modifications that can be made to the community, from landscaping changes to facilities improvements, and to take actions to mitigate fire dangers and drought conditions.

For example, Assembly Bill 38 (Defensible Space Inspections) mandates certain residential properties to obtain defensible space inspections and provide homeowners with fire safety information.

Cal-Fire also has guidelines for creating defensible space around homes, which can be used for all structures within a community as a means to lower wildfire dangers. These guidelines start from the structure and extend outwards, detailing different actions to take within a 100’ perimeter, including the removal of dead vegetation, use of fire-resistant materials the closer to the structure you get, mowing grass to reduce the fuel source for fires, and tree trimming.

Proactive drought resistance planning is also important given the State Water Board’s expanded emergency water regulations. They impose bans on the watering of “non-functional turf,” which includes grass that is solely ornamental, not regularly used for human recreation (i.e., civic or community events), and not on a sports field.

Residential yards are presently excluded from the water ban. These water use limitations are unlikely to lift anytime soon. For this reason, homeowners and associations should investigate ways to lower their water consumption, most of which goes to irrigation and landscaping.

Associations should consider steps they can take to reduce their water usage including the more obvious: the replacement of turf and non-native landscaping with drought-tolerate substitutes or the installation of a recycled (greywater) water system, which uses non-toxic wastewater, to water landscaping.

2. Proper budgeting improves your likelihood for taking extreme weather mitigation steps.

You may be wondering, “With all these steps to take, how is your community supposed to pay for them?” The costs associated with the changes can be daunting; however, too few people know that various programs, grants, and tax incentives exist to help associations and homeowners take the necessary steps towards lowering their fire risk and improving their drought tolerance. Boards should investigate the available financial incentives and provide this information to their communities.

Water districts often have “cash for grass” programs where they pay customers to remove grass and replace it with drought tolerate plants. The California Wildfire Mitigation Program provides financial assistance with fire hardening measures. Additionally, inquire with your insurance carrier whether fire and drought risk mitigation steps will help lower your insurance premiums.

Once a board identifies any available programs, tax credits, etc., they have a clearer picture of the actual costs. Civil Code §5605 permits boards to impose a special assessment of 5% without owner approval. Boards can also temporarily borrow from reserves per Civil Code §5515 or when available, use reserve funds for fire resistant or drought tolerant options. Be careful for any replacements that could violate a common provision in CC&Rs regarding owner approval for “capital improvements.”

While fire hardening and water conservation measures may not be as attractive as a lobby renovation or new pool, the long-term benefits and cost savings cannot be underscored or ignored.

3. Educate and engage your community.

The importance of community engagement regarding a board’s effort to lower their community’s fire danger risks and improve their drought tolerance should be clear.

If a board is going to seek a special assessment, notice to owners is required at least 30 days before the vote. Beyond this, boards should communicate throughout their due diligence to explain their decisions. Boards should not be surprised when their unengaged community suddenly shows up to a board meeting with pitchforks when they see grass dying without understanding why.

Proactive communications can help to blunt some of the questions that pertain to landscaping changes for drought purposes. Communicate not just the what (i.e., we are removing landscaping and replacing it with drought tolerant materials) but the why (i.e., we will save costs on water bills, irrigation repairs, and monthly landscaping charges) as well.

Boards are not alone in having to communicate with their homeowners on the risks and costs imposed by wildfires and drought. All manner of support exists to supplement a board’s efforts.

For example, invite the association’s insurance agent to talk about the higher costs associated with insurance premiums and the benefits of proactive mitigation or the association’s landscaper to talk about the long-term cost savings and benefits of switching to drought tolerant landscaping. Have a local water board or Cal-Fire representative explain their restrictions. They are happy to help, but you have to ask to receive that help.

In addition to board actions for the common areas, boards can adopt rules that apply to the separate interests. Whether voting to impose Cal-Fire defensible space recommendations or mandatory water limits in line with local water ordinances, boards should work with legal counsel to determine (a) if they have the authority to adopt the rule and (b) whether it is appropriate to adopt the rule under its emergency rule making authority per Civil Code §4360(d).

The extreme weather apocalypse we are living in does not have to mean unchecked fire dangers or the end of beautiful landscapes. Communities have numerous options available that with a little planning, research, and creativity can help lower costs, improve resilience, and set their community up for long-term success.

Jasmine F. Hale, Esq.

Jasmine F. Hale, Esq., is a partner at Berding & Weil, LLP that serves as corporate counsel to the firm’s clients in the Northern California area and a veteran community association attorney with 20 years of experience.