BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 328|
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UNFINISHED BUSINESS
Bill No: SB 328
Author: Kehoe (D)
Amended: 6/22/11
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 4/12/11
AYES: Evans, Harman, Corbett, Leno
NO VOTE RECORDED: Blakeslee
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 37-1, 5/27/11
AYES: Alquist, Anderson, Berryhill, Blakeslee, Calderon,
Cannella, Corbett, Correa, De León, DeSaulnier, Dutton,
Evans, Gaines, Hancock, Harman, Hernandez, Huff, Kehoe,
La Malfa, Leno, Lieu, Liu, Lowenthal, Negrete McLeod,
Padilla, Pavley, Price, Rubio, Runner, Steinberg,
Strickland, Vargas, Walters, Wolk, Wright, Wyland, Yee
NOES: Fuller
NO VOTE RECORDED: Emmerson, Simitian
ASSEMBLY FLOOR : 60-12, 8/25/11 - See last page for vote
SUBJECT : Eminent Domain Law: conservation easement
SOURCE : California Council of Land Trusts
DIGEST : This bill states that a person authorized to
acquire property for public use by eminent domain shall
exercise that power to acquire property that is subject to
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a conservation easement only as provided in this bill.
Specifically, this bill imposes the following requirements
on the condemnation of a property subject to a conservation
easement:
1. The person notifies the holder of a conservation
easement not later than 105 days prior to the hearing on
a resolution of necessity, or, at the time an offer is
made to the owner of the property, whichever occurs
earlier, as specified;
2. The holder informs the person seeking to acquire the
property of any public entity that provided funds for
purchase of the easement, or imposed conditions that
resulted in its creation, and notifies that entity of
the potential eminent domain action;
3. The holder and the public entity receiving notice have
the right to provide written comments to the person
seeking to acquire the property, and, that person must
respond to those comments within 30 days;
4. The holder is named as a defendant and may appear in the
proceedings, as specified; and
5. The holder of the conservation easement is an owner of
property entitled to compensation, as specified.
Assembly Amendments add legislative intent language.
ANALYSIS : Existing federal law provides that "private
property Ýshall not] be taken for public use, without just
compensation." (United States Constitution Amendment V)
Existing state law provides that private property "may be
taken or damaged for public use only when just
compensation, ascertained by a jury unless waived, has
first been paid to, or into court for, the owner."
(California Constitution article I, section 19.) Existing
state law defines "just compensation" as a property's fair
market value "as determined by any method of valuation that
is just and equitable." (Code Civil Procedure ÝCCP]
Sections 1263.310-1263.320)
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Existing law further provides that the power of eminent
domain may be exercised to acquire property only for a
public use, and only if all of the following are
established: (1) the public interest and necessity require
the project; (2) the project is planned or located in the
manner that will be most compatible with the greatest
public good and the least private injury; and (3) the
property sought to be acquired is necessary for the
project. (CCP Sections1240.010, 1240.030)
Existing law states that any person authorized to acquire
property for a particular use by eminent domain may
exercise the power of eminent domain to acquire property
appropriated to public use: (1) if the proposed use will
not unreasonably interfere with or impair the continuance
of the public use as it then exists or may reasonably be
expected to exist in the future; or (2) if the use for
which the property is sought to be taken is a more
necessary public use than the use to which the property is
appropriated. (CCP Sections 1240.510, 1240.610)
Existing law finds and declares that the preservation of
land in its natural, scenic, agricultural, historical,
forested, or open-space condition is one of the most
important environmental assets of California, and states
that it is to be the public policy and in the public
interest of this state to encourage the voluntary
conveyance of conservation easements to qualified nonprofit
organizations. (Civil Code ÝCIV] Section 815)
Existing law defines a "conservation easement" as any
limitation in a deed, will, or other instrument in the form
of an easement, restriction, covenant, or condition, which
is or has been executed by or on behalf of the owner of the
land subject to such easement and is binding upon
successive orders of such land, and the purpose of which is
to retain land predominantly in its natural, scenic,
historical, agricultural, forested, or open-space
condition. (CIV Section 815.1.) A conservation easement
has the following characteristics:
1. Voluntarily created interest in real property that is
freely transferable;
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2. Perpetual in duration;
3. Not deemed to be personal in nature, but shall
constitute an interest in real property; and
4. The particular characteristics shall be those granted or
specified in the instrument creating or transferring the
easement. (CIV Section 815.2)
Existing law only allows the following entities or
organizations to acquire and hold conservation easements:
(1) tax-exempt nonprofit 501(c)(3) organizations with a
primary purpose of preserving, protecting, or enhancing
land in its natural, scenic, historical, agricultural,
forested, or open-space condition or use; (2) the state or
any city, county, city and county, district, or other state
or local government entity, as specified; and (3) a
California Native American tribe, as specified. (CIV
Section 815.3.) Existing law also requires the recordation
of instruments creating, assigning, or otherwise
transferring conservation easements, and provides for the
creation of a conservation easement registry. (CIV Section
815.5; Public Resources Code Section 5096.520)
Existing law provides that no governmental entity may
condemn any wildlife conservation easement, as defined,
unless, prior to the initiation of condemnation proceedings
by a governmental entity, the entity: (1) gives notice to
the holder of the easement; (2) provides an opportunity for
the holder of the easement to consult with the governmental
agency; and (3) provides a response to objections. In the
condemnation proceedings, the condemning governmental
entity shall be required to prove by clear and convincing
evidence that its proposed use satisfies specified
requirements under the Eminent Domain Law. (Fish and Game
Code Section 1348.3; CCP Section 1240.610 et seq.)
This bill states that 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 below:
1. The person seeking to acquire the property subject to
the easement provides notice to the holder of the
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conservation easement: (i) not later than 105 days
prior to a hearing by the governing body on a resolution
of necessity, or at the time an offer is made to the
owner to acquire the property; (ii) if no hearing is
required, notice must be given 105 days prior to the
time an offer is made to the owner of the property.
That notice must include the following:
A. A general description of the property subject to
the conservation easement;
B. Description of the public use or improvement;
C. That written comments must be submitted no later
than 45 days from the mailing of the notice, as
specified;
D. That the holder of the easement is required,
within 15 days of receipt of the notice, to send a
copy of the notice to each public entity that
provided funds for the purchase of the easement or
imposed conditions on approval or permitting that
were satisfied by creation of the easement, inform
the public entity regarding written comments, and
notify the person seeking to acquire the property of
the name and address of the public entity.
2. The holder of the conservation easement, within 15 days
of receiving the notice, must send a copy of the notice
to each affected public entity, as specified, inform
that entity of regarding the ability to submit written
comments, and notify the person seeking to acquire the
property of the public entity. This requirement would
only apply when the holder of the easement is the
original grantee of the easement and there is a public
entity, as specified, the holder of the easement has
actual knowledge of a public entity, as specified, or
the recorded documents evidence the involvement of a
public entity.
3. The holder of the conservation easement or the public
entity receiving notice, or both, may provide written
comments to the person seeking to acquire the property,
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including any potential conflict between the public use
proposed for the property and purposes and terms of the
easement. Written comments must be submitted no later
than 45 days from the date the notice was mailed to the
holder of the conservation easement.
4. The person seeking to acquire the property subject to a
conservation easement must respond in writing to
comments from the holder of the easement or from the
public entity, as specified, within 30 days of receiving
those comments.
5. Notice of the hearing on the resolution of necessity
must be sent to the holder of any conservation easement
and to any public entity, as specified. The notice
shall state that failure to file a written request
within 15 days after mailing of the notice will result
in waiver of the right to appear and be heard.
6. Any resolution of necessity to acquire property subject
to a conservation easement must refer a section of
existing law that: (A) permits a property appropriated
to public use to be acquired by eminent domain if the
proposed use will not unreasonably interfere with or
impair the continuance of the public use, as specified;
or (B) permits a property appropriated for public use to
be acquired if the use for which the property is sought
to be taken is a more necessary public use than the sue
to which the property is appropriated.
This bill requires the holder of the conservation easement
to be named as defendant in the eminent domain proceedings
to acquire property subject to a conservation easement.
This bill also requires the holder to be allowed to appear
in the proceedings, as specified, and state that the holder
shall have all the same rights and obligations as any other
defendant in the eminent domain proceeding.
This bill provides that the holder of the conservation
easement is an owner of property entitled to compensation,
as specified, to be determined in accordance with all of
the following:
1. The total compensation for the acquisition of all
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interests in property encumbered by a conservation
easement shall not be less than, and shall not exceed,
the fair market value of the property if it were not
encumbered by the conservation easement.
2. 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 easement.
3. If the acquisition damages the conservation easement,
the compensation shall be determined, as specified, and
the value of the fee simple interest of the property
shall be assessed as if it were not encumbered by the
easement.
This bill provides the above compensation provisions do not
apply if similar provisions in existing law relating to
agricultural conservation easements apply.
This bill would not apply in its entirety if existing law's
provision relating to wildlife conversation easements
applies.
This bill states that it is the intent of the Legislature
to encourage the parties in an eminent domain proceeding to
acquire property that is subject to a conservation easement
to consult early in the process to assist the parties in
identifying potential significant effects of the proposed
acquisition and the feasible alternatives or feasible
mitigation measures that will avoid or substantially lessen
significant effects on the conservation easement in order
to avoid delays in the eminent domain proceeding.
Prior Legislation
SB 555 (Kehoe), 2009-10 Session, which passed the Senate on
September 10, 2010 (27-11) and was vetoed. (see below)
AB 910 (Wayne), Chapter 863, Statutes of 2001, prohibited a
governmental entity from condemning any wildlife
conservation easement acquired by another state agency,
except as provided.
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This bill is identical to the enrolled version of SB 555
(Kehoe, 2009) that was vetoed due to concerns that it could
delay infrastructure projects. Specifically, Governor
Schwarzenegger stated:
"While protecting the value of conservation easements is
a noble endeavor, this measure unintentionally provides
opponents of controversial infrastructure projects
another tool to impede or discourage vital public
infrastructure planning and development in energy, water,
and transportation which are crucial for our state's job
growth and economic well-being."
Despite those concerns, the author notes that this bill
represents a compromise product and that: "There were a
number of groups who had concerns about SB 555 in 2009 and
some initially opposed the bill. We worked very hard with
stakeholders throughout the session so that by the time we
reached the final enrolled version, virtually all initially
concerned were either supporting the bill or had gone
neutral. We checked in with those we worked with in 2009
and so far no one has raised any concerns." Although the
Committee has received no opposition letters as of the time
of writing this analysis, the author notes that the County
of Orange "opposed the introduced version of ÝSB 555], and
although the bill changed radically over the course of the
session, the county never withdrew its opposition."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/25/11)
California Council of Land Trusts (source)
Amargosa Conservancy
American Land Conservancy
American River Conservancy
Association of California Water Agencies
Bay Area Open Space Council
Bay Area Ridge Trail Council
Big Sur Land Trust
Bolsa Chica Land Trust
California Outdoor Heritage Alliance
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Catalina Island Conservancy
Center for Natural Lands Management
East Bay Municipal Utilities District
Eastern Sierra Land Trust
Lake County Land Trust
Land Conservancy of San Louis Obispo County
Land Trust for Santa Barbara County
Land Trust of Santa Cruz County
Lassen Land and Trails Trust
Marin Agricultural Land Trust
Mendocino Land Trust
Metropolitan Water District
Pacific Forest Trust
Palos Verdes Peninsula Land Conservancy
Placer Land Trust
Redwood Coast Land Conservancy
Sacramento Valley Conservancy
San Diego County Water Authority
San Joaquin River Parkway and Conservation Trust
Save Mount Diablo
Sequoia Riverlands Trust
Sierra-Cascade Land Trust Council
Solano Land Trust
Southern California Open Space Council
Transition Habitat Conservancy
Trust for Public Land
Wildlife Heritage Foundation
ARGUMENTS IN SUPPORT : According to the author:
"The current provisions of the CCP ÝCode of Civil
Procedure] do not identify or recognize conservation
easements in spite of the public benefits and investment
in creating them.
"Tremendous public and charitable assets have been
invested in the acquisition of conservation easements in
California. Yet, with the narrow exception created for a
relatively small number of easements in the Fish and Game
Code section 1348.3, conservation easements are as
vulnerable to condemnation as any other property in
private ownership. The fact that a conservation easement
exists, that sometimes millions of dollars in public
dollars have been expended to conserve it, or that a
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public agency has said that the property's conservation
advances certain public goals are all irrelevant to a
potential condemnation proceeding. In spite of the
implicit recognition of the public value of conservation
easements as evidenced in law and public funding, they
are not recognized as having any public use for the
purposes of eminent domain law.
"Further, the easement holder - who holds a real property
interest - does not have to be notified of the proposed
condemnation. Nonprofit easement holders report that
governmental entities with the power of eminent domain
often fail to recognize a conservation easement as a
separate and distinct property right. In numerous
instances, the entity has refused to acknowledge the
easement holder until the holder of the fee title land
refuses to talk with the entity about the condemnation
without the easement holder or the easement holder has
retained counsel to force discussion.
"The conservation community is facing an increasing
number of condemnations of conservation easements, and it
expects this trend to increase as development pressure
continues and communities are built out. The
conservation community is not trying to eliminate the
power of eminent domain - it recognizes that other
societal needs will sometimes require the condemnation of
a conservation easement. However, it is seeking to
ensure that easement holders receive notice and have a
right to object, and to create a high standard for
condemning easements to help ensure that public use and
investment is not lightly lost."
ASSEMBLY FLOOR : 60-12, 8/25/11
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bradford, Brownley,
Buchanan, Butler, Campos, Carter, Cedillo, Chesbro,
Davis, Dickinson, Eng, Feuer, Fletcher, Fong, Fuentes,
Furutani, Beth Gaines, Galgiani, Gatto, Gordon, Hall,
Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso,
Huffman, Jeffries, Jones, Lara, Bonnie Lowenthal, Ma,
Mendoza, Mitchell, Monning, Norby, Pan, Perea, V. Manuel
Pérez, Portantino, Skinner, Smyth, Solorio, Swanson,
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Torres, Valadao, Wagner, Wieckowski, Williams, Yamada,
John A. Pérez
NOES: Achadjian, Donnelly, Garrick, Grove, Halderman,
Knight, Logue, Miller, Morrell, Nielsen, Olsen, Silva
NO VOTE RECORDED: Bonilla, Charles Calderon, Conway, Cook,
Gorell, Hagman, Mansoor, Nestande
RJG:kc 8/26/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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