BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 328
                                                                  Page  1

          Date of Hearing:   July 6, 2011

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Felipe Fuentes, Chair

                     SB 328 (Kehoe) - As Amended:  June 22, 2011 

          Policy Committee:                              
          JudiciaryVote:10-0

          Urgency:     No                   State Mandated Local Program: 
          Yes    Reimbursable:              Yes

           SUMMARY  

          This bill requires a person seeking to acquire, by eminent 
          domain, a property subject to a conservation easement to give 
          the holder of the conservation easement a notice containing 
          specified information and an opportunity to comment on the 
          acquisition.  Specifically, this bill:

          1)Requires that, not later than 105 days prior to the earlier of 
            a hearing on a resolution of necessity or the time that an 
            offer is made to an owner, a person or entity seeking to 
            acquire property subject to a conservation easement shall send 
            a notice, containing specified information, to the holder of 
            the conservation easement.

          2)Requires the holder of the conservation easement, within 15 
            days of receiving the notice, to send copies to any public 
            entity that (a) provided funds for the acquisition of the 
            property or (b) imposed conditions on approval of a project 
            satisfied in whole or in part by the conservation easement.

          3)Requires the holder of the conservation easement or any public 
            entity that provided funds for the purchase of the easement, 
            or both, to within 45 days provide the person seeking to 
            acquire the property with written comments on the proposed 
            acquisition, including identifying any potential conflict 
            between the proposed public use and the terms of the 
            conservation easement.

          4)Requires the person seeking to acquire the property, within 30 
            days after receipt of the written comments per (3) to respond 
            in writing to the comments, as specified.








                                                                  SB 328
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          5)Clarifies that the holder of a conservation easement is an 
            owner of property entitled to compensation as specified.

          6)Applies all of the above only to conservation easements in 
            which any of the following apply:

             a)   The conservation easement is held by a public entity.
             b)   A public entity provided funds to acquire the easement.
             c)   A public entity imposed conditions on approving or 
               permitting a project that were satisfied, in whole or in 
               part, by the easement.

           


          FISCAL EFFECT 

          Likely minor annual reimbursable costs for local agencies 
          seeking to acquire property meeting one of the criteria 
          specified in #6 above by eminent domain to make the required 
          notifications and to respond in writing to comments from 
          entities having a conservation easement interest.

           COMMENTS  

           1)Background  .  In 1979, California statutorily created a 
            "conservation easement" to permit various government entities 
            and non-profit organizations to acquire and hold such 
            easements. While governmental and non-profit entities could 
            always acquire absolute title to land to ensure it remained in 
            a natural and relatively undisturbed state, a "conservation 
            easement" allows entities to acquire "one stick in the bundle 
            of property rights" while the original owner continues to use, 
            possess, and hold transferable title to the land.  In this 
            way, the conservationist land trust does not own the land, but 
            simply monitors the easement.  The conservation easement is 
            essentially an agreement between the holder of the easement 
            and the property owner to the effect that the land will not be 
            used in certain ways, so that it may remain, for example, in 
            its natural, scenic, agricultural, historical, or open-space 
            condition. The easement is generally perpetual and runs with 
            the land, so that if the property is sold, the new owner takes 
            it subject to the conservation easement.









                                                                  SB 328
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           2)Purpose  .  Competing development, transportation, or 
            infrastructure needs have sometimes led public and private 
            utilities authorized to exercise the power of eminent domain 
            to use that power to acquire property subject to a 
            conservation easement.  If the public use for which the 
            property is required is not consistent with the uses permitted 
            by the conservation easement, then the easement is effectively 
            destroyed.  Although conservation easements generally run with 
            the land and bind subsequent owners, this is usually not the 
            case when land is acquired by eminent domain.  Although an 
            acquiring entity may elect to maintain the easement, it does 
            not have to, since the "condemnation" in theory terminates the 
            existing title and, with it, the conservation easement.

            According to the author and supporters, the use of eminent 
            domain in these instances not only threatens to destroy the 
            environmental value created by the conservation easement, it 
            also represents a considerable waste of public and private 
            investment on the part of government entities, as well as 
            non-profit agencies, which purchased those easements.  
            According to the author, this bill is intended simply to 
            ensure that whenever an entity seeks to acquire property 
            subject to a conservation easement that the easement holder, 
            and any other entities that contributed to acquisition of that 
            easement, are given ample notice and opportunity to be heard 
            in any condemnation proceedings.

           3)Prior Legislation  . This bill is almost identical to SB 555 
            (Kehoe) of 2009, which was vetoed by Governor Schwarzenegger, 
            who argued the bill would provide opponents of controversial 
            infrastructure projects with another tool to impede or 
            discourage such projects. Curiously, the governor's argument 
            mirrored that of parties previously opposed to the bill but no 
            longer in opposition. Similarly, SB 328 has no registered 
            opposition.

           Analysis Prepared by  :    Chuck Nicol / APPR. / (916) 319-2081