BILL NUMBER: SB 618	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JUNE 23, 2011
	AMENDED IN SENATE  MAY 11, 2011
	AMENDED IN SENATE  MAY 3, 2011
	AMENDED IN SENATE  APRIL 25, 2011

INTRODUCED BY   Senator Wolk
    (   Principal coauthor:   Assembly Member
  V. Manuel Pérez   ) 
    (   Coauthor:   Assembly Member  
Alejo   ) 

                        FEBRUARY 18, 2011

   An act to add  Sections 51255.1 and 65924  
Section 51255.1  to, and to add Chapter 6.9 (commencing with
Section 51190) to Part 1 of Division 1 of Title 5 of, the Government
Code,   and to amend Section 402.1 of the Revenue and Taxation
Code,   relating to local government.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 618, as amended, Wolk. Local government: solar-use easement.
   (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
 ,   and authorizes a county or city to include other,
 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  
extinguished on all or a portion of the parcel by nonrenewal,
termination, or by returning the land to its previous contract under
the Williamson Act  . This bill would require that if the
landowner  terminates   extinguishes the
contract   either by filing a notice of nonrenewal or by
terminating  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 authorize a
landowner to terminate a solar-use easement by complying with certain
procedures, and paying a termination fee based upon the termination
value of the property, as determined by the county assessor. 
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.  
   (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 every lead agency and responsible agency
to 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 defined.  
   (2) Existing law requires the county assessor to consider, when
valuing real property for property taxation purposes, the effect of
any enforceable restrictions to which the use of the land may be
subjected. Under existing law these restrictions include, but are not
limited to, zoning, recorded contracts with governmental agencies,
and various other restrictions imposed by governments.  
   This bill would also require the county assessor to consider, when
valuing real property for property taxation purposes, solar-use
easements. By changing the manner in which county assessors assess
property for property taxation purposes, this bill would impose a
state-mandated local program.  
   (3) 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:  no   yes  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    The Legislature hereby finds and
declares all of the following:  
   (a) The California Land Conservation Act of 1965 that has become
known nationwide as the Williamson Act is critical to the welfare of
the people of our state and nation.  
   (b) The Williamson Act provides a statutory framework for local
implementation of California's most effective farm and ranch land
preservation program, protecting over 16.5 million acres or nearly
one-third of all privately owned land in California.  
   (c) The long-term conservation of agricultural and open-space land
ensures that a steady supply of high-quality, low-cost fresh foods
is available to urban residents, provides open-space uses that
benefit the public seeking escape from the closeness of urban
society, protects watersheds and vast areas of wildlife habitat, and
conserves world-class agricultural soils.  
   (d) On April 12, 2011, Governor Brown signed legislation that
requires one-third of the state's electricity to come from renewable
sources by December 31, 2020.  
   (e) In establishing the 33 percent California Renewables Portfolio
Standard Program (RPS program), there will be many important
benefits to California, including new investment in green
technologies in the state, job creation, improvements in local air
quality, energy independence, and a reduction in greenhouse gas
emissions.  
   (f) Utility scale photovoltaic electrical energy production is
crucial to achieving and hopefully exceeding California's RPS program
goals.  
   (g) Encouraging utility scale photovoltaic energy facilities on
marginally productive or physically impaired land by providing
expedited termination of Williamson Act contracts, without penalty,
will protect the many statewide benefits of the program while
providing significant economic incentives for new solar power
development.  
   (h) In enacting Section 3 of this act, it is the intent of the
Legislature to provide an additional method for terminating a
Williamson Act contract, in addition to those methods already
authorized by statute, for the purpose of encouraging the development
of utility scale solar photovoltaic facilities on marginally
productive or physically impaired farmland. It is not intended to be
the exclusive method of contract termination, nor of Williamson Act
compliance for solar facilities, but merely another option that is
consistent with the constitutional limitations of Section 8 of
Article XIII of the California Constitution. 
   SECTION 1.   SEC. 2.   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) "Agricultural activities" has the same meaning as defined in
subdivision (e) of Section 3482.5 of the Civil Code except for
livestock production, notwithstanding the periodic use of the land
for the production and utilization of forage.  
   (a) 
    (b)  "Marginally productive" means 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 pursuant to this paragraph if  all  
both  of the following apply:
   (1) The parcel was not  used   irrigated
 for agricultural purposes during the prior  6 
 six  years. 
   (2) Any voluntary 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.
 
   (3) The parcel is unusable for agricultural practices due to its

    (2)     Use of the parcel is significantly
limited for agricultural activities due to its  topography,
drainage, flooding, adverse soil conditions, or other physical
reasons. 
   (b) 
    (c)  "Physically impaired land" means land with severely
adverse soil conditions that are detrimental to continued
agricultural cultivation and production. Severely adverse soil
conditions may include, but are not limited to, contamination by
salts or selenium, or other naturally occurring contaminants. The
Secretary of Food and Agriculture may consult with the Secretary of
 the  Natural Resources  Agency  and consider
information from the agricultural commissioner in the county where
the land is located. 
   (c) 
    (d)  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
  Director of Conservation. The Director of Conservation
may consult with the Secretary of Food and Agriculture and consider
information from the agricultural commissioner in the county where
the land is located  . 
   (d) "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). 
   (e) "City" means any city or city and county.
   (f) "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.
   (g) "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
 in perpetuity or for a term of years on marginally productive or
physically impaired lands  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 
for the purpose of providing for the collection and distribution of
solar energy for the generation of electricity, and any other
incidental or subordinate agricultural, open-space uses, or other
alternative renewable energy facilities. A solar-use easement shall
not permit any land located in the easement to be used for any other
use allowed in commercial, industrial, or residential zones  . 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 
 reservations  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)   (g)
 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)   (g)  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)   (g)
 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   photovoltaic
 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.

   (4) Provision for necessary amendments by the parties provided
that the amendments are consistent with the provisions of this
chapter. 
   (c) For term easements, 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)   (g)  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) During the term of the solar-use easement, the
county or city shall not approve any land use that is inconsistent
with the easement, and no building permit may be issued for any
structure that would violate the easement. 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, a person or entity may, by appropriate proceedings, seek an
injunction.
   (b) The court may award to a plaintiff 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 shall be excluded from classification as newly
constructed under Section 2 of Article XIII A of the California
Constitution.  
   51191.6.  The parcel or parcels subject to a solar-use easement
shall be assessed pursuant to Section 402.1 of the Revenue and
Taxation Code during the term of the easement. 
   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   Extinguishment
 of a Solar-Use Easement


   51192.  (a) A solar-use easement may be  terminated only
by nonrenewal  extinguished on all or a portion of the
parcel only by nonrenewal, termination, or by returning the land to
its previous contract pursuant to Article 3 (commencing with Section
51240) of Chapter 7  .
   (b) (1) If either the landowner or the county or city desires in
any year not to renew the solar-use easement  on all or a portion
of the parcel  , 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   extinguished  because of a notice of
nonrenewal by the landowner  or due to termination  , 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. 
   51192.2.  (a) If all or a portion of the parcel held in a
solar-use easement will no longer be used for the purposes outlined
in the easement the landowner may petition the county or city to
approve termination of the easement.
   (b) Prior to any action by the county or city giving tentative
approval to the termination of any easement, the county assessor of
the county in which the land is located shall determine the current
fair market value of the parcel or parcels to be terminated as though
the parcel or parcels were free of the easement restriction. The
assessor shall certify to the county or city the termination
valuation of the parcel or parcels for the purpose of determining the
termination fee. At the same time, the assessor shall send a notice
to the landowner and the Department of Conservation indicating the
current fair market value of the parcel or parcels as though the
parcel or parcels were free of the easement restriction and advise
the parties, that upon their request, the assessor shall provide all
information relevant to the valuation, excluding third-party
information. If any information is confidential or otherwise
protected from release, the department and the landowner shall hold
it as confidential and return or destroy any protected information
upon completion of all actions relating to valuation or termination
of the easement on the property. The notice shall also advise the
landowner and the department of the opportunity to request formal
review from the assessor.
   (c) Prior to giving tentative approval to the termination of any
easement, the county or city shall determine and certify to the
county auditor the amount of the termination fee that the landowner
shall pay the county treasurer upon termination. That fee shall be an
amount equal to 121/2 percent of the termination valuation of the
property.
   (d) If it finds that it is in the public interest to do so, the
county or city may waive any payment or any portion of a payment by
the landowner, or may extend the time for making the payment or a
portion of the payment contingent upon the future use made of the
parcel or parcels and the parcel or parcels economic return to the
landowner for a period of time not to exceed the unexpired period of
the easement, had it not been terminated, if both of the following
occur:
   (1) The termination is caused by an involuntary transfer or change
in the use which may be made of the land and the land is not
immediately suitable, nor will be immediately used, for a purpose
which produces a greater economic return to the owner.
   (2) The waiver or extension of time is approved by the Secretary
of the Natural Resources Agency. The secretary shall approve a waiver
or extension of time if the secretary finds that the granting of the
waiver or extension of time by the county or city is consistent with
the policies of this chapter and that the county or city complied
with this article. In evaluating a request for a waiver or extension
of time, the secretary shall review the findings of the county or
city, the evidence in the record of the county or city, and any other
evidence the secretary may receive concerning the abandonment,
waiver, or extension of time.
   (e) When termination fees required by this section are collected,
they shall be transmitted by the county treasurer to the Controller
and deposited in the General Fund.
   (f) It is the intent of the Legislature that fees paid to
terminate a contract do not constitute taxes but are payments that,
when made, provide a private benefit that tends to increase the value
of the property. 
   SEC. 2.   SEC. 3.   Section 51255.1 is
added to the Government Code, to read:
   51255.1.   (a)    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.

   (b) Nothing in this section limits the ability of the parties to a
contract to seek nonrenewal, or petition for cancellation or
termination of a contract pursuant to this chapter. This section is
provided in addition to, not in replacement of, other methods for
contract termination, Williamson Act compliance or compatibility
pursuant to this chapter.  
  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. 
   SEC. 4.    Section 402.1 of the   Revenue
and Taxation Code   is amended to read: 
   402.1.  (a) In the assessment of land, the assessor shall consider
the effect upon value of any enforceable restrictions to which the
use of the land may be subjected. These restrictions shall include,
but are not limited to, all of the following:
   (1) Zoning.
   (2) Recorded contracts with governmental agencies other than those
provided in Sections 422 and 422.5.
   (3) Permit authority of, and permits issued by, governmental
agencies exercising land use powers concurrently with local
governments, including the California Coastal Commission and regional
coastal commissions, the San Francisco Bay Conservation and
Development Commission, and the Tahoe Regional Planning Agency.
   (4) Development controls of a local government in accordance with
any local coastal program certified pursuant to Division 20
(commencing with Section 30000) of the Public Resources Code.
   (5) Development controls of a local government in accordance with
a local protection program, or any component thereof, certified
pursuant to Division 19 (commencing with Section 29000) of the Public
Resources Code.
   (6) Environmental constraints applied to the use of land pursuant
to provisions of statutes.
   (7) Hazardous waste land use restriction pursuant to Section 25240
of the Health and Safety Code.
   (8) A recorded conservation, trail, or scenic easement, as
described in Section 815.1 of the Civil Code, that is granted in
favor of a public agency, or in favor of a nonprofit corporation
organized pursuant to Section 501(c)(3) of the Internal Revenue Code
that has as its primary purpose the preservation, protection, or
enhancement of land in its natural, scenic, historical, agricultural,
forested, or open-space condition or use. 
   (9) A solar-use easement pursuant to Chapter 6.9 (commencing with
Section 51190) of Part 1 of Division 1 of Title 5 of the Government
Code. 
   (b) There is a rebuttable presumption that restrictions will not
be removed or substantially modified in the predictable future and
that they will substantially equate the value of the land to the
value attributable to the legally permissible use or uses.
   (c) Grounds for rebutting the presumption may include, but are not
necessarily limited to, the past history of like use restrictions in
the jurisdiction in question and the similarity of sales prices for
restricted and unrestricted land. The possible expiration of a
restriction at a time certain shall not be conclusive evidence of the
future removal or modification of the restriction unless there is no
opportunity or likelihood of the continuation or renewal of the
restriction, or unless a necessary party to the restriction has
indicated an intent to permit its expiration at that time.
   (d) In assessing land with respect to which the presumption is
unrebutted, the assessor shall not consider sales of otherwise
comparable land not similarly restricted as to use as indicative of
value of land under restriction, unless the restrictions have a
demonstrably minimal effect upon value.
   (e) In assessing land under an enforceable use restriction wherein
the presumption of no predictable removal or substantial
modification of the restriction has been rebutted, but where the
restriction nevertheless retains some future life and has some effect
on present value, the assessor may consider, in addition to all
other legally permissible information, representative sales of
comparable lands that are not under restriction but upon which
natural limitations have substantially the same effect as
restrictions.
   (f) For the purposes of this section the following definitions
apply:
   (1) "Comparable lands" are lands that are similar to the land
being valued in respect to legally permissible uses and physical
attributes.
   (2) "Representative sales information" is information from sales
of a sufficient number of comparable lands to give an accurate
indication of the full cash value of the land being valued.
   (g) It is hereby declared that the purpose and intent of the
Legislature in enacting this section is to provide for a method of
determining whether a sufficient amount of representative sales
information is available for land under use restriction in order to
ensure the accurate assessment of that land. It is also hereby
declared that the further purpose and intent of the Legislature in
enacting this section and Section 1630 is to avoid an assessment
policy which, in the absence of special circumstances, considers uses
for land that legally are not available to the owner and not
contemplated by government, and that these sections are necessary to
implement the public policy of encouraging and maintaining effective
land use planning. Nothing in this statute shall be construed as
requiring the assessment of any land at a value less than as required
by Section 401 or as prohibiting the use of representative
comparable sales information on land under similar restrictions when
this information is available.
   SEC. 5.    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.