BILL NUMBER: SB 328 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Kehoe
FEBRUARY 15, 2011
An act to add Section 1240.055 to the Code of Civil Procedure,
relating to eminent domain.
LEGISLATIVE COUNSEL'S DIGEST
SB 328, as introduced, Kehoe. Eminent Domain Law: conservation
easement.
Existing law authorizes various agencies to acquire land for
purposes related to conservation. Existing law provides for a
conservation easement to retain land predominantly in its natural,
scenic, historical, agricultural, forested, or open-space condition.
Existing law establishes procedures for the independent appraisal
review of land to be acquired for conservation and establishes a
conservation easement registry. Existing law prohibits, with a
specified exception, the sale of conservation lands to another owner
or the transfer of possession and control of conservation lands to
another agency, unless specified actions occur.
The California Constitution permits private property to be taken
or damaged for public use only when just compensation is paid. The
Eminent Domain Law prescribes how that constitutionally authorized
power may be exercised and permits that exercise only for a public
use. Existing law prohibits a public entity from commencing an
eminent domain proceeding until its governing body has adopted a
resolution of necessity that meets specified requirements.
This bill would revise the Eminent Domain Law to establish
requirements for acquisition of property subject to a conservation
easement. The bill would require the person seeking to acquire the
property to give the holder of the conservation easement a notice
containing specified information and an opportunity to comment on the
acquisition. The bill would require the holder of the conservation
easement to provide notice, under certain circumstances and as
specified, of the proposed acquisition to each public entity that
helped fund the purchase of the conservation easement or that imposed
conditions on approval or permitting of a project that were
satisfied, in whole or in part, by the conservation easement, and
other information, as specified. The bill would require a person
seeking to acquire the property subject to the conservation easement
to respond to any comments in writing and provide by first-class mail
the response to each easement holder or public entity that filed
comments. The bill would require the notice of the hearing on the
resolution of necessity to be sent to any holder of the conservation
easement and public entity, as specified, and to contain information
regarding the effect of failing to file a written request to appear
and be heard. The bill would require that a resolution of necessity
to acquire property subject to the conservation easement refer to
specific authority for the acquisition of the property. The bill
would specify that the holder of the conservation easement is
entitled to compensation under the Eminent Domain Law, as specified.
To the extent that this bill would impose new duties on a local
governmental entity, this bill would create a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1240.055 is added to the Code of Civil
Procedure, to read:
1240.055. (a) As used in this section, the following terms have
the following meanings:
(1) "Conservation easement" means a conservation easement as
defined in Section 815.1 of the Civil Code and recorded as required
by Section 815.5 of the Civil Code.
(2) "Holder of a conservation easement" means the entity or
organization that holds the conservation easement on the property
that is proposed for acquisition and that is authorized to acquire
and hold conservation easements pursuant to Section 815.3 of the
Civil Code.
(3) "Property appropriated to public use," as used in Article 6
(commencing with Section 1240.510) and Article 7 (commencing with
Section 1240.610), includes a conservation easement if any of the
following applies:
(A) The conservation easement is held by a public entity.
(B) A public entity provided funds, not including the value of a
charitable contribution for federal or state income tax purposes but
including the California Natural Heritage Preservation Tax Credit,
for the acquisition of that easement.
(C) A public entity imposed conditions on approval or permitting
of a project that were satisfied, in whole or in part, by the
conservation easement.
(b) A person authorized to acquire property for public use by
eminent domain shall exercise the power of eminent domain to acquire
property that is subject to a conservation easement only as provided
in this section.
(c) Not later than 105 days prior to the hearing held pursuant to
Section 1245.235, or at the time of the offer made to the owner or
owners of record pursuant to Section 7267.2 of the Government Code,
whichever occurs earlier, the person seeking to acquire property
subject to a conservation easement shall give notice to the holder of
the conservation easement as provided in this subdivision. If the
person is not required to hold a hearing pursuant to Section
1245.235, then the notice shall be given 105 days prior to the time
of the offer made to the owner or owners of record pursuant to
Section 7267.2 of the Government Code.
(1) The notice required by subdivision (c) shall be sent by
first-class mail and shall state all of the following:
(A) A general description, in text or by diagram, of the property
subject to a conservation easement that the person proposes to
acquire by eminent domain.
(B) A description of the public use or improvement that the person
is considering for the property subject to a conservation easement.
(C) That written comments on the acquisition may be submitted in
accordance with paragraph (3) no later than 45 days from the date the
person seeking to acquire the property mailed the notice to the
holder of the conservation easement.
(D) That the holder of the conservation easement, within 15 days
of receipt of the notice required by subdivision (c), is required,
under certain circumstances, to do all of the following:
(i) Send a copy of the notice by first-class mail to each public
entity that provided funds for the purchase of the easement or that
imposed conditions on approval or permitting of a project that were
satisfied, in whole or in part, by the creation of the conservation
easement.
(ii) Inform the public entity that written comments on the
acquisition may be submitted in accordance with paragraph (3).
(iii) Notify the person seeking to acquire the property of the
name and address of any public entity that was sent a copy of the
notice pursuant to this paragraph.
(2) (A) The holder of the conservation easement, within 15 days of
receipt of the notice required by subdivision (c), shall do all of
the following:
(i) Send a copy of the notice by first-class mail to each public
entity that provided funds for the purchase of the easement or that
imposed conditions on approval or permitting of a project that were
satisfied, in whole or in part, by the creation of the conservation
easement.
(ii) Inform the public entity that written comments on the
acquisition may be submitted in accordance with paragraph (3).
(iii) Notify the person seeking to acquire the property of the
name and address of any public entity that was sent a copy of the
notice pursuant to this paragraph.
(B) Subparagraph (A) shall apply only if one of the following
applies:
(i) The holder of the easement is the original grantee of the
conservation easement and there is a public entity as described in
subparagraph (A).
(ii) The holder of the easement has actual knowledge of a public
entity as described in subparagraph (A).
(iii) Recorded documents evidence the identity of a public entity
as described in subparagraph (A).
(3) The holder of the conservation easement or the public entity
receiving notice, or both, may provide to the person seeking to
acquire the property written comments on the acquisition, including
identifying any potential conflict between the public use proposed
for the property and the purposes and terms of the conservation
easement. Written comments on the acquisition may be submitted no
later than 45 days from the date the person seeking to acquire the
property mailed the notice to the holder of the conservation
easement.
(d) The person seeking to acquire the property subject to a
conservation easement, within 30 days after receipt of written
comments from the holder of the conservation easement or from a
public entity described in paragraph (2) of subdivision (c), shall
respond in writing to the comments. The response to the comments
shall be mailed by first-class mail to each easement holder or public
entity that filed comments.
(e) The notice of the hearing on the resolution of necessity,
pursuant to Section 1245.235, shall be sent by first-class mail to
the holder of any conservation easement and to any public entity
whose name and address are provided as described in paragraph (2) of
subdivision (c) and shall state that they have the right to appear
and be heard on the matters referred to in Sections 1240.030,
1240.510, and 1240.610. The notice shall state that, pursuant to
paragraph (3) of subdivision (b) of Section 1245.235, failure to file
a written request to appear and be heard within 15 days after the
notice was mailed will result in waiver of the right to appear and be
heard. The resolution of necessity to acquire property subject to a
conservation easement shall refer specifically either to Section
1240.510 or 1240.610 as authority for the acquisition of the
property.
(f) In any eminent domain proceeding to acquire property subject
to a conservation easement, the holder of the conservation easement:
(1) Shall be named as a defendant, as set forth in Section
1250.220.
(2) May appear in the proceedings, as set forth in Section
1250.230.
(3) Shall have all the same rights and obligations as any other
defendant in the eminent domain proceeding.
(g) (1) The holder of the conservation easement is an owner of
property entitled to compensation determined pursuant to Section
1260.220 and Chapter 9 (commencing with Section 1263.010) and in
accordance with all of the following:
(A) The total compensation for the acquisition of all interests in
property encumbered by a conservation easement shall not be less
than, and shall not exceed, the fair market value of the fee simple
interest of the property as if it were not encumbered by the
conservation easement.
(B) If the acquisition does not damage the conservation easement,
the total compensation shall be assessed by determining the value of
all interests in the property as encumbered by the conservation
easement.
(C) If the acquisition damages the conservation easement in whole
or in part, compensation shall be determined consistent with Section
1260.220 and the value of the fee simple interest of the property
shall be assessed as if it were not encumbered by the conservation
easement.
(2) This subdivision shall not apply if the requirements of
Section 10261 of the Public Resources Code apply.
(h) This section shall not apply if the requirements of Section
1348.3 of the Fish and Game Code apply.
SEC. 2. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.