BILL ANALYSIS Ó
SB 618
Page 1
Date of Hearing: June 22, 2011
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
SB 618 (Wolk) - As Amended: May 11, 2011
SENATE VOTE : 39-0
SUBJECT : Local government: solar-use easement.
SUMMARY : Authorizes 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. Specifically,
this bill :
1)Authorizes any county or city to enter into an agreement with
a landowner to hold marginally productive or physically
impaired land in a solar-use easement.
2)Requires that the execution and acceptance of a solar-use
easement constitutes a dedication to the public of the use of
the marginally productive or physically impaired lands for
solar photovoltaic use for the term specified.
3)Requires the easement and covenant to run for a term of not
less than 10 years.
4)Requires a solar-use easement for a term of years to 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, a year shall be added
automatically to the initial term unless a notice of
nonrenewal is given.
5)Authorizes a county or city to require a solar-use easement to
contain any restrictions, conditions, or covenants as are
necessary or desirable to restrict the use of the land to
photovoltaic solar facilities.
6)Specifies that the restrictions, conditions, or covenants may
include, but are not limited to, the following:
a) Mitigation measures on the land that is subject to the
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solar-use easement;
b) Mitigation measures beyond the land that is subject to
the solar-use easement; and,
c) 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.
7)Requires, for term easements, the restrictions, conditions, or
covenants to 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.
8)Prohibits a deed or other instrument for a solar-use easement
from being effective until it has been accepted or approved by
resolution of the governing body of the county or city and its
acceptance endorsed thereon.
9)Prohibits, during the term of the solar-use easement, a county
or city from approving any land use that is inconsistent with
the easement, and no building permit may be issued for any
structure that would violate the easement.
10) Requires a county or city to seek, by appropriate
proceedings, an injunction against any threatened construction
or other development or activity on the land that would
violate the easement and seek a mandatory injunction requiring
the removal of any structure erected in violation of the
easement.
11)Provides that if a county or city fails to seek an injunction
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.
12)Requires a solar-use easement to be officially recorded with
the county assessor.
13)Authorizes the Department of Conservation to adopt
regulations regarding the implementation of the provisions of
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this measure.
14)Provides that a solar-use easement may be terminated only by
nonrenewal.
15)States that 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.
16)Provides that unless written notice is served at least 90
days in advance of the renewal date, the solar-use easement
shall be considered renewed.
17)States that 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.
18)Requires the landowner to 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
if the easement is terminated because of a notice of
non-renewal from the landowner.
19)Requires 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.
20)Defines "marginally productive" as 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
if all of the following applies:
a) The parcel was not used for agricultural purposes during
the prior six years;
b) 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
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agricultural productivity; and,
c) The parcel is unusable for agricultural practices due to
its topography, drainage, flooding, adverse soil
conditions, or other physical reasons.
21)Defines "physically impaired land" as 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.
22)Requires a parcel be designated as marginally productive or
physically impaired under this subdivision based on
substantial evidence in the public record, and the designation
be approved by the Secretary of Food and Agriculture.
23)Defines "disturbed lands" as 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.
24)Prohibits agricultural land from qualifying for disturbed
lands unless it also qualifies as marginally productive or
physically impaired.
25)Defines "solar-use easement" as 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 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.
26)Requires a solar-use easement to 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 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
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facilities.
EXISTING LAW :
1)Authorizes, pursuant to Article 13, section 8 of the
California Constitution, the Legislature to promote the
conservation, preservation and continued existence of open
space lands and provides that when these lands are enforceably
restricted to recreation, enjoyment of scenic beauty, use or
conservation of natural resources, or production of food or
fiber, they must be valued for property tax purposes only on a
basis that is consistent with these restrictions and uses.
2)Creates the Williamson Act, also known as the California Land
Conservation Act of 1965, which authorizes cities and counties
to enter into agricultural land preservation contracts with
landowners who agree to restrict the use of their land for a
minimum of 10 years in exchange for lower assessed valuations
for property tax purposes. The Division of Land Resource
Protection in the Department of Conservation administers the
Act.
3)Requires, under the Permit Streamlining Act, each state agency
and local agency to compile one or more lists that specify in
detail the information that will be required from any
applicant for a development project, and requires a public
agency that is the lead agency for a development project, or a
public agency which is a responsible agency for a development
project that has been approved by the lead agency, to approve
or disapprove the project within applicable periods of time.
4)Provides various ways to end Williamson Act contracts,
including nonrenewal, cancellation, and rescission:
a) Nonrenewal occurs when either the landowner or the
county decides to not renew the contract, which then runs
out in nine years. After nonrenewal, county officials
increase the property's assessed value to its market value
by the end of the contract period when the land use
restrictions also end.
b) Cancelation can occur when a land owner requests county
officials to cancel a Williamson Act, immediately ending
the contract and allowing the landowner to use the property
for another specified use. To cancel a contract, the
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county supervisors must find that the cancellation is
either consistent with the Act's purposes or in the public
interest. The landowner must pay a cancellation fee equal
to 12% of the property's nonrestricted value. The
revenues go to the state General Fund, not to the county.
c) Rescission occurs when the county supervisors cancel a
Williamson Act contract, but the landowner simultaneously
puts an agricultural conservation easement on other land of
equal or greater value.
FISCAL EFFECT : Unknown
COMMENTS :
1)The Williamson Act conserves agricultural and open space land
by allowing private property owners to sign voluntary
contracts with counties and cities, enforceably restricting
their land to agriculture, open space, and compatible uses.
In return, county assessors must lower the assessed value of
the contracted lands to reflect their use as agriculture or
open space instead of the market value. Making sure that
private property owners use their Williamson Act land
appropriately is essential to maintaining the statute's
constitutional integrity.
2)At least 33% of retail energy sales by investor owned
utilities, local publicly owned utilities, and energy service
providers must come from renewable energy resources by
December 31, 2020 (SB 2x, Simitian, Chapter 1, Statutes of
2011). To meet this goal, utility systems and private
investors need locations to build renewable energy facilities.
The California Energy
Commission tracks more than 375 renewable energy projects,
including 252 solar photovoltaic (PV) projects spread over 21
counties. Many of these solar PV sites are in counties that
have Williamson Act contracts with landowners of thousands of
acres of farms, ranches, and open space.
3)Although the Williamson Act recognizes the construction of
electric facilities as a compatible use, opinions differ over
whether a solar PV facility qualifies as a compatible use. To
avoid lawsuits, landowners and county officials prefer to
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terminate their Williamson Act contracts before building solar
PV facilities. Some county supervisors have made the public
interest findings and cancelled Williamson Act contracts so
that investors can build solar PV facilities. Kern County,
for example, cancelled its Williamson Act contract on 6,047
acres
of fallow agricultural land for the Maricopa Sun Solar Complex,
a proposed 700-megawatt solar PV project near Taft. The
landowner will pay $755,714 in cancellation fees. Others want
to find a different method to terminate Williamson Act
contracts before they build solar PV facilities.
4)As the state strives to meet its new, ambitious, 33% RPS
standard, counties and landowners are left struggling to
balance the competing needs of large-scale solar PV
development and protecting critical habitat and farmland.
According to the author, SB 618 offers incentives to solar PV
developers who choose to develop on lands that are less suited
for agricultural use or have a lower habitat value.
Specifically, the bill defines "marginally productive and
physically impaired lands" to be those lands which have
significantly reduced agricultural value due to chemical or
physical limitations (drainage problems, poor soil, etc.) and
are unusable for agricultural. The bill also defines
"disturbed" lands to those that have been physically altered,
making them less ideal as habitat.
5)According to the Westlands Solar Park the current process of
early cancellation of Williamson Act contracts is fraught with
legal and regulatory uncertainty that makes development on
contracted lands complex, challenging, and ultimately very
risky for the renewable energy industry. SB 618 sets the
right policy guidelines for developing large scale solar on
marginally productive or physically impaired agricultural land
that has little value for food security but can be a "win-win"
for economic development for local communities with high
unemployment and for California's RPS goals.
6)Support argument: Supporters, including the California Farm
Bureau Federation, state that SB 618 will provide an important
alternative mechanism for Williamson Act lands, when
designated as marginally productive or physically impaired,
that cannot meet the principles of compatibility or the
required findings for contract cancellation.
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Opposition argument: Opponents could argue that by creating
an easier method for non-renewal will just incentivize its use
more often because in some circumstances a land owner could
make more money having the land in a solar-use easement then
in a traditional Williamson Act contract.
7)This bill is double-referred to the Agriculture Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Farm Bureau Federation
The Nature Conservancy
Westlands Solar Park
Opposition
None on file
Analysis Prepared by : Katie Kolitsos / L. GOV. / (916)
319-3958