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  • Jeffrey Siegel

New Legal Realities of Wildfires in California – Overview of AB38

The California legislator has recently enacted the groundbreaking AB38, which addresses the life and property threatening wildfire issues facing people who live in high-risk area homes not compliant with modern fire-resistant building codes. This speaks to many of the historic homes in Los Gatos historic neighborhoods.

It specifically addresses the crucial need for older homes in the wildland urban interface to become fire-hardened, and stipulates that beginning in 2021, all homes in the WUI that are put o the market for sale will now need to disclose any and all fire vulnerabilities that exist to a prospective buyer. It also calls for the need for the state of California to eventually, by 2024, offer some limited financial assistance to certain homeowners needing to undertake fire-hardening measures for their homes. It screams out the need for retrofitting of older homes, none of which are more vulnerable to fire than historic homes. What’s also clear is that waiting or delaying these projects puts entire neighborhoods at greater risk.

AB38 makes clear the need to fire-harden older homes in the wildland urban interface. Limited financial assistance appears to be coming by 2024, but with the threat considered imminent, there is a need to act with greater urgency to the extent that homeowners have the financial wherewithal to do so. For homeowners of historic homes, the Mills Act is the perfect funding source available today to nearly all historic towns except Los Gatos.

Tragically, our town council has failed to yet adopt this property and life-preserving act which is needed more than ever. Glenridge Park, through the Firewise Glenridge Park/LG partnership is working towards accelerating that work beginning now, ahead of the upcoming wildfire season by demanding that Mayor Jenson stop blocking adoption of the Mills Act. Her actions to date have stopped access to these state-provisioned funds that would support fire-hardening of historic homes of Los Gatos that reside in the WUI.

Here is some of the language contained in AB38 which has strong significance for Los Gatos:

The Legislature finds and declares the following:

(a) Catastrophic threats exist to lives, property, and resources in California including wildfire. Climate change, an epidemic of dead and dying trees, and the proliferation of new homes in the wildland urban interface magnify this threat and place substantially more people and property at risk than in preceding decades.

(b) Certain populations in our state are particularly vulnerable to wildfire threats. These Californians live in communities that face near-term public safety threats given their location. The tragic loss of life and property in the Town of Paradise during the 2018 Camp Fire demonstrates such vulnerability.

(c) While California has stringent building standards for new construction and requirements for the maintenance of defensible space in wildfire hazard areas, California must develop statewide options to encourage cost-effective structure hardening to create fire resistant homes.

(d) It is the intent of the Legislature to offer financial assistance (by the year 2024) through a statewide program to communities for all-hazards in support of a comprehensive mitigation strategy and reduce or eliminate potential risks.

(e) It is further the intent of the Legislature to develop a comprehensive financial assistance program to help property owners retrofit existing housing in wildfire hazard areas to a cost-effective standard that provides comprehensive risk reduction to protect structures from fires spreading from adjacent structures or vegetation, and to prevent vegetation from spreading fires to adjacent structures.

The new act is predicated on the following facts:

(a) Climate change has resulted in higher year-long temperatures and increasing dry weather conditions in California, resulting in extended, sometimes multiyear, droughts; extended wildfire seasons throughout the year.

(b) Wildfires have grown larger and have increased in intensity over the last several decades. As compared with 1986, wildfires in the western United States have occurred nearly four times more often, burning more than six times the land area and lasting almost five times as long. Through the end of the 2017 calendar year, 11 of the 20 most destructive wildfires in California have occurred in the last 10 years. The 2018 calendar year witnessed the most destructive wildfires in California history in terms of the loss of life and structures.

(c) In terms of the size of wildfires, in the last decade, enormous wildfires have consumed vast areas, including the 2013 Rim Fire, the 2017 Napa Valley, Sonoma Valley, and Santa Rosa wildfires, the 2017 Thomas Fire, and the 2018 Camp Fire which destroyed the town of Paradise.

(d) Wildfires, which have impacted occupied areas, have resulted in enormous human and financial cost including the 2018 Camp Fire, which resulted in 89 deaths, the loss of 18,804 structures, and at least $12.4 billion in 2018 United States dollars in insured losses.

(e) There is a pressing need for wildfire prevention and minimization strategies, on an area-specific basis, that combine increased wildfire resistance within developed areas to minimize wildfire impacts with comprehensive vegetation management measures in wildlands to prevent or severely limit large-scale wildfires from developing and spreading as follows:

a. Wildfire minimization programs. There is a need to provide funding for the hardening of homes and other structures to increase their resistance to wildfires.

b. Wildfire prevention programs.

This new law also stipulates:

On or after January 1, 2021, in addition to any other disclosure required pursuant to this article, the seller of any real property subject to this article that is located in a high or very high fire hazard severity zone, shall provide a disclosure notice to the buyer, if the home was constructed before January 1, 2010, that includes the following information:

A statement as follows: “This home is located in a high or very high fire hazard severity zone and this home was built before the implementation of the Wildfire Urban Interface building codes which help to fire harden a home. To better protect your home from wildfire, you might need to consider improvements. Information on fire hardening, including current building standards and information on minimum annual vegetation management standards to protect homes from wildfires, can be obtained on the internet website”

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