Have you heard about the new California AB-38 fire disclosure? On and after July 1, 2021, when you sell property that is located in a high or very high fire hazard severity zone you’ll need documentation with a defensible space inspection that complies with Section 4291 of the Public Resources Code or local vegetation management ordinances (check with your local fire department). This new seller disclosure will appear on your Natural Hazard Disclosure (NHD) report as an AB-38 Notice. This article examines Assembly Bill AB-38, defensible space, and inspection.
The new California AB-38 fire disclosure establishes that, as of July 1, 2021, California Civil Code Section 1102.19 requires a seller of real property located in a high or very high fire hazard severity zone to provide the buyer with documentation stating the property is in compliance with defensible space requirements. The law allows that if documentation demonstrating compliance cannot be obtained by the close of escrow, the seller and buyer can enter into a written agreement showing that the buyer agrees to obtain compliance documentation within one year of the close of escrow.
While most of California is subject to some degree of fire hazard, specific features make some areas more hazardous. The California Department of Forestry and Fire Protection (CAL FIRE) is required by law to map areas of significant fire hazards based on fuels, terrain, local weather, and other relevant factors. These designations – called Fire Hazard Severity Zones (FHSZ) – mandate how people construct buildings and protect property to reduce the risk associated with wildland fires. The Fire Hazard Severity Zone maps denote lands of similar hazards where the state has financial responsibility for wildland fire protection, known as State Responsibility Area or SRA. By law, only lands zoned as Very High Fire Hazard Severity are identified within areas of California where local governments have financial responsibility for wildland fire protection, known as Local Responsibility Area or LRA.
DEFENSIBLE SPACE & AB-38 INSPECTION
- In the very high fire hazard safety zone (FHSZ) in the Local responsibility area LRA, the seller shall request a defensible space compliance inspection from the local Authority Having Jurisdiction (AHJ).
- In the high or very high FHSZ in the State responsibility area (SRA), if a local jurisdiction has enacted a defensible space/vegetation management ordinance, the seller shall request a defensible space compliance inspection from the local AHJ.
- In the High or Very High FHSZ in the State responsibility area (SRA), if a local jurisdiction has not enacted a defensible space/vegetation management ordinance, the seller shall request a defensible space compliance inspection from CAL FIRE by using the inspection request feature at https://www.fire.ca.gov/dspace.
- Property owners or their agent should contact their local fire department to find out whether the property requires an inspection. If the property is within the SRA, an AB 38 inspection is required in both the High and Very High Fire Hazard Severity Zones. If the property is within the LRA, an AB 38 inspection is required in the Very High FHSZ.
- If your property does not pass on the new California AB-38 disclosure inspection on the first attempt, the inspector will explain what work needs to be completed and schedule another appointment at a later date. If the property will not meet compliance with PRC 4291 standards or a local vegetation management ordinance, the seller and the buyer shall enter into a written agreement pursuant to which the buyer agrees to obtain documentation of compliance within one year after closing escrow.
RC 4291 requires defensible space of 100 feet from each side and from the front and rear of the structure, but not beyond the property line, with certain exceptions. The amount of fuel modification necessary considers the flammability of the structure as affected by building material, building standards, location, and type of vegetation. Fuels shall be maintained so that a wildfire burning under average weather conditions would be unlikely to ignite the structure. The law does not intend the homeowner to remove all vegetation around the structure. Well-pruned and maintained plants are quite acceptable, so they do not form a means of rapidly transmitting fire from other nearby vegetation to the structure. The intensity of fuels management may vary within the 100-foot perimeter of the structure, with more intense fuel reductions being utilized between 5 and 30 feet around the structure, and an ember-resistant zone is required within 5 feet of the structure.
PREPARING FOR A DEFENSIBLE SPACE & AB-38 INSPECTION
Keep Your Property Lean and Green
Defensible space, coupled with home hardening, is essential to improve your home’s chance of surviving a wildfire. Defensible space is the buffer you create between a building on your property and the grass, trees, shrubs, or any wildland area surrounding it. This space is needed to slow or stop the spread of wildfire, and it helps protect your home from catching fire—either from embers, direct flame contact, or radiant heat. Proper defensible space also provides firefighters a safe area to work in to defend your home.
Zone 0 - Ember Resistant Zone - Zone 0 extends 5 feet from buildings, structures, decks, etc.
Zone 1 – Lean, Clean, and Green Zone - Zone 1 extends 30 feet from buildings, structures, decks, etc., or to your property line, whichever is closer.
Zone 2 – Reduce Fuel Zone - Zone 2 extends from 30 feet to 100 feet out from buildings, structures, decks, etc. or to your property line, whichever is closer.
Defensible Space Zones
Zones 1 and 2 currently make up the 100 feet of defensible space required by law. Assembly Bill 3074, passed into law in 2020, requires a third zone for defensible space. This law requires the Board of Forestry and Fire Protection to develop the regulation for a new ember-resistant zone (Zone 0) within 0 to 5 feet of the home by January 1, 2023. The intensity of wildfire fuel management varies within the 100-foot perimeter of the home, with more intense fuels reduction occurring closer to your home. Start at home and work your way out to 100 feet or to your property line, whichever is closer.
Zone 0 – Ember Resistant Zone
Zone 0 extends 5 feet from buildings, structures, decks, etc.
The ember-resistant zone is currently not required by law, but science has proven it to be the most important defensible space zones. This zone includes the area under and around all attached decks and requires the most stringent wildfire fuel reduction. The ember-resistant zone is designed to keep fire or embers from igniting materials that can spread the fire to your home. The following provides guidance for this zone, which may change based on the regulation developed by the Forestry and Fire Protection Board.
- Use hardscapes like gravel, pavers, concrete, and other non-combustible mulch materials. No combustible bark or mulch
- Remove all dead and dying weeds, grass, plants, shrubs, trees, branches, and vegetative debris (leaves, needles, cones, bark, etc.); Check your roofs, gutters, decks, porches, stairways, etc.
- Remove all branches within 10 feet of any chimney or stovepipe outlet
- Limit plants in this area to low growing, nonwoody, properly watered and maintained plants
- Limit combustible items (outdoor furniture, planters, etc.) on top of decks
- Relocate firewood and lumber to Zone 2
- Replace combustible fencing, gates, and arbors attached to the home with non-combustible alternatives
- Consider relocating garbage and recycling containers outside this zone
- Consider relocating boats, RVs, vehicles, and other combustible items outside this zone
Zone 1 – Lean, Clean, and Green Zone
Zone 1 extends 30 feet from buildings, structures, decks, etc., or to your property line, whichever is closer.
- Remove all dead plants, grass, and weeds (vegetation).
- Remove dead or dry leaves and pine needles from your yard, roof, and rain gutters.
- Remove branches that hang over your roof and keep dead branches 10 feet away from your chimney.
- Trim trees regularly to keep branches a minimum of 10 feet from other trees.
- Relocate wood piles to Zone 2.
- Remove or prune flammable plants and shrubs near windows.
- Remove vegetation and items that could catch fire from around and under decks, balconies, and stairs.
- Create a separation between trees, shrubs, and items that could catch fire, such as patio furniture, wood piles, swing sets, etc.
Zone 2 – Reduce Fuel Zone
Zone 2 extends from 30 feet to 100 feet out from buildings, structures, decks, etc., or to your property line, whichever is closer.
- Cut or mow annual grass down to a maximum height of 4 inches.
- Create horizontal space between shrubs and trees. (See diagram)
- Create vertical space between grass, shrubs, and trees. (See diagram)
- Remove fallen leaves, needles, twigs, bark, cones, and small branches. However, they may be permitted to a depth of 3 inches.
- All exposed wood piles must have a minimum of 10 feet of clearance, down to bare mineral soil, in all directions.
Zone 1 and 2
“Outbuildings” and Liquid Propane Gas (LPG) storage tanks shall have 10 feet of clearance to bare mineral soil and no flammable vegetation for an additional 10 feet around their exterior.
Plant and Tree Spacing
The spacing between grass, shrubs, and trees is crucial to reducing the spread of wildfires. The spacing needed is determined by the type and size of brush and trees and the slope of the land. For example, a property on a steep slope with larger vegetation requires greater spacing between trees and shrubs than a level property with small, sparse vegetation.
- Remove all tree branches at least 6 feet from the ground.
- Allow extra vertical space between shrubs and trees. Lack of vertical space can allow a fire to move from the ground to the brush to the treetops like a ladder. This leads to a more intense fire closer to your home.
- To determine the proper vertical spacing between shrubs and the lowest branches of trees, use the formula below.
Horizontal spacing depends on the slope of the land and the height of the shrubs or trees. Check the chart to determine spacing distance.
Many local government agencies have local ordinances for defensible space or weed abatement. These local ordinances will often be more stringent than the State’s minimum requirements (e.g., San Diego County requires 50 feet of clearance in Zone 1). Check with your local fire department or fire protection district for additional defensible space or weed abatement ordinance requirements. To search local ordinances near you, click here for a list of statewide municipal codes.