BILL NUMBER: SB 618 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 3, 2011
AMENDED IN SENATE APRIL 25, 2011
INTRODUCED BY Senator Wolk
FEBRUARY 18, 2011
An act to add Section 51255.1 Sections
51255.1 and 65924 to, and to add Chapter 6.9 (commencing with
Section 51190) to Part 1 of Division 1 of Title 5 of, the Government
Code, relating to local government.
LEGISLATIVE COUNSEL'S DIGEST
SB 618, as amended, Wolk. Local government: solar-use easement.
Existing
(1) Existing law, the Williamson
Act, authorizes a city or county to enter into 10-year contracts with
owners of land devoted to agricultural use, whereby the owners agree
to continue using the property for that purpose, and the city or
county agrees to value the land accordingly for purposes of property
taxation. Existing law authorizes the parties to a Williamson Act
contract to mutually agree to rescind a contract under the act in
order to simultaneously enter into an open-space easement for a
certain period of years.
This bill would authorize the parties to a Williamson Act contract
to mutually agree to rescind the contract in order to simultaneously
enter into a solar-use easement that would require that the land be
used for solar photovoltaic facilities for a term no less than 10
years. This bill would require a county or city to include
certain restrictions, conditions, or covenants in the deed or
instrument granting a solar-use easement. This bill would
provide that a solar-use easement would be automatically renewed
annually, unless either party filed a notice of nonrenewal. This bill
would provide that a solar-use easement may only be terminated by
either party filing a notice of nonrenewal. This bill would
require that if the landowner terminates the solar-use
easement, the landowner shall restore the property to the conditions
that existed before the easement by the time the easement terminates.
This bill would provide that specified parties may bring an
action to enforce the easement if it is violated. This bill would
provide that construction of solar photovoltaic facilities on land
subject to a solar-use easement that qualifies as a active solar
energy system, as defined, would be excluded from classification as
newly constructed. This
(2) Under the Permit Streamlining Act, a state or local agency and
a public agency that is the lead agency for a development project
are required to act upon an application for a development project
within specified time periods prescribed by the act and may not
include a waiver of these time periods, as specified, as a condition
of accepting or processing the application for a development project.
This bill would require the Department of Fish
and Game or any other lead agency every lead agency
and responsible agency to expedite its review for issuing any
necessary licenses or permits for solar
photovoltaic facilities that are located on land subject to
a solar-use easement marginally productive or
physically impaired, or disturbed land, as defined .
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 6.9 (commencing with Section 51190) is added to
Part 1 of Division 1 of Title 5 of the Government Code, to read:
CHAPTER 6.9. SOLAR-USE EASEMENT
Article 1. Definitions
51190. As used in this chapter, the following terms have the
following meanings:
(a) "Marginally productive or physically impaired" means one of
the following:
(1) Parcels consisting predominately of soil with significantly
reduced agricultural productivity due to chemical or physical
limitations. A parcel of land may only be designated as marginally
productive or physically impaired pursuant to this paragraph if the
parcel was not used for agricultural purposes during the prior 6
years, and is unusable for agricultural practices due to its
topography, drainage, flooding, adverse soil conditions, or other
physical reasons.
(2) Land that does not support livestock used for the production
of food and fiber with an annual carrying capacity equivalent to at
least one animal unit per acre as defined by the United States
Department of Agriculture.
(3) Notwithstanding paragraphs (1) or (2), a parcel or parcels of
land shall not qualify as marginally productive or physically
impaired if it is composed primarily of either of the following:
(A) Land that qualifies for rating as class I or class II in the
United States Department of Agriculture's land capability
classification system.
(B) Land previously designated by the Farmland Mapping and
Monitoring Program as Prime Farmland, Farmland of Statewide
Importance, or Unique Farmland where the water rights have been
voluntarily transferred or retired, unless the transfer or retirement
of the water rights was due to significant chemical or physical soil
limitations on the parcel or parcels that severely limit
agricultural productivity.
(4) A parcel shall be designated as marginally productive or
physically impaired under this subdivision based on substantial
evidence in the public record, and this designation shall be approved
by the Secretary of Food and Agriculture.
(b) "Disturbed lands" means lands that have been mechanically
disturbed, including lands that have been converted from native
vegetation through plowing, bulldozing, or other mechanical means in
support of activities that change the land cover, including, but not
limited to, agriculture, mining, and clearance for development
purposes. These lands, based on appropriate biological surveys, may
also have diminished value as habitat for mitigation purposes for
endangered, threatened, candidate, and other sensitive species.
Agricultural land shall not qualify for disturbed lands unless it
also qualifies as marginally productive or physically impaired
pursuant to subdivision (a).
(c) "City" means any city or city and county.
(d) "Landowner" includes a lessee or trustee, if the expiration of
the lease or trust occurs at a time later than the expiration of the
restriction of the use of the land to photovoltaic solar facilities
or any extension of the restriction.
(e) "Solar-use easement" means any right or interest in perpetuity
or for a term of years in marginally productive or physically
impaired lands acquired by a county, or city pursuant to this chapter
where the deed or other instrument granting the right or interest
imposes restrictions that, through limitation of future use, will
effectively restrict the use of the land to photovoltaic solar
facilities. A solar-use easement shall contain a covenant with the
county, or city running with the land, either in perpetuity or for a
term of years, that the landowner shall not construct or permit the
construction of improvements except those for which the right is
expressly reserved in the instrument provided that those reservation
would not be inconsistent with the purposes of this chapter and which
would not be incompatible with the sole use of the property for
solar photovoltaic facilities.
Article 2. General Provisions
51191. Any county or city may enter into an agreement with a
landowner pursuant to Section 51255.1 to hold marginally productive
or physically impaired land in a solar-use easement in the manner
provided in this chapter.
51191.1. The execution and acceptance of a deed or other
instrument described in subdivision (e) of Section 51190 shall
constitute a dedication to the public of the use of the marginally
productive or physically impaired lands for solar photovoltaic use
for the term specified. Any such easement and covenant shall run for
a term of not less than 10 years. A solar-use easement for a term of
years shall provide that on the anniversary date of the acceptance of
the solar-use easement, or on any other annual date as specified by
the deed or other instrument described in subdivision (e) of Section
51190, a year shall be added automatically to the initial term unless
a notice of nonrenewal is given as provided in Section 51192.
51191.2. (a) A county or city may require a
deed or other instrument described in subdivision (e) of Section
51190 to contain any restrictions, conditions, or covenants as are
necessary or desirable to restrict the use of the land to
photovoltaic solar facilities.
(b) The restrictions, conditions, or covenants may include, but
are not limited to, the following:
(1) Mitigation measures on the land that is subject to the
solar-use easement.
(2) Mitigation measures beyond the land that is subject to the
solar-use easement.
(3) Performance bonds or other securities to fund, upon the
cessation of the solar voltaic use, the restoration of the land that
is subject to the easement to the conditions that existed before the
approval or acceptance of that easement by the time that the easement
terminates.
(c) In the case of a solar-use easement that is terminated because
of a notice of nonrenewal by the landowner, the restrictions,
conditions, or covenants shall include a requirement for the
landowner to post a performance bond or other securities to fund the
restoration of the land that is subject to the easement to the
conditions that existed before the approval or acceptance of the
easement by the time the easement terminates.
51191.3. No deed or other instrument described in subdivision (e)
of Section 51190 shall be effective until it has been accepted or
approved by resolution of the governing body of the county or city
and its acceptance endorsed thereon.
51191.4. (a) From and after the time when a solar-use easement
has been accepted or approved by the county or city and its
acceptance or approval endorsed on the easement, no building permit
may be issued for any structure that would violate the easement and
the county or city shall seek, by appropriate proceedings, an
injunction against any threatened construction or other development
or activity on the land that would violate the easement and shall
seek a mandatory injunction requiring the removal of any structure
erected in violation of the easement.
If the county or city fails to seek an injunction against any
threatened construction or other development or activity on the land
that would violate the easement or to seek a mandatory injunction
requiring the removal of any structure erected in violation of the
easement, or if the county or city should construct any structure or
development or conduct or permit any activity in violation of the
easement, the owner of any property within the county or city, or any
resident of the city or county, may, by appropriate proceedings,
seek an injunction.
(b) The court may award to a plaintiff or defendant who prevails
in an action authorized by this section his or her cost of
litigation, including reasonable attorney's fees.
(c) Nothing in this chapter shall limit the power of the state or
any county, city, school district, or any other local public
district, agency or entity, or any other person authorized by law, to
acquire land subject to a solar-use easement by eminent domain.
51191.5. Upon the acceptance or approval of any instrument
creating a solar-use easement the clerk of the governing body shall
record the instrument in the office of the county recorder and file a
copy with the county assessor. After the easement is recorded, it
shall impart notice to all persons under the recording laws of this
state.
51191.6. The construction of solar photovoltaic facilities on
land subject to a solar-use easement that qualifies as an active
solar energy system pursuant to Section 73 of the Revenue and
Taxation Code would shall be excluded
from classification as newly constructed under Section 2 of Article
XIII A of the California Constitution.
51191.7. The Department of Fish and Game or any other lead agency
shall expedite its review for issuing any necessary permits for
solar photovoltaic facilities that are located on solar-use easements
pursuant to this chapter.
51191.7. The Department of Conservation may adopt regulations
pursuant to the Administrative Procedures Act (Chapter 3.5
(commencing with Section 11340) of Division 3 of Title 2) for the
implementation of this chapter.
Article 3. Termination of a Solar-Use Easement
51192. (a) A solar-use easement may be terminated only by
nonrenewal.
(b) (1) If either the landowner or the county or city desires in
any year not to renew the solar-use easement, that party shall serve
written notice of nonrenewal of the easement upon the other party at
least 90 days in advance of the annual renewal date of the solar-use
easement. Unless written notice is served at least 90 days in advance
of the renewal date, the a solar-use easement shall be considered
renewed as provided in Section 51191.1.
(2) Upon receipt by the owner of a notice from the county or city
of nonrenewal, the owner may make a written protest of the notice of
nonrenewal. The county or city may, at any time prior to the renewal
date, withdraw the notice of nonrenewal.
(c) If the county, city, or the landowner serves notice of intent
in any year not to renew the solar-use easement, the existing
solar-use easement shall remain in effect for the balance of the
period remaining since the original execution or the last renewal of
the solar-use easement, as the case may be.
51192.1. In the case of a solar-use easement that is terminated
because of a notice of nonrenewal by the landowner, the landowner
shall restore the land that is subject to the easement to the
conditions that existed before the approval of the easement by the
time the easement terminates.
SEC. 2. Section 51255.1 is added to the Government Code, to read:
51255.1. Notwithstanding any other provision of this chapter, the
parties may upon their mutual agreement rescind a contract for a
parcel or parcels of marginally productive or physically impaired
lands, as defined in Section 51190, in order to simultaneously enter
into a solar-use easement pursuant to Chapter 6.9 (commencing with
Section 51190). This action may be taken notwithstanding the prior
serving of a notice of nonrenewal.
SEC. 3. Section 65924 is added to the
Government Code , to read:
65924. Every lead agency and responsible agency shall expedite
its review for issuing any necessary permits for solar photovoltaic
facilities that are located on marginally productive or physically
impaired, or disturbed land, as those terms are defined in Chapter
6.9 (commencing with Section 51190) of Part 1 of Division 1 of Title
5.