Amended in Senate June 24, 2015

Amended in Assembly April 14, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1251

Introduced by Assembly Member Gomez

February 27, 2015

An act to begin delete amend Section 815.3 of end delete begin insert add Chapter 4.5 (commencing with Section 816.50) to Title 2 of Part 2 of Division 2 of end insert the Civil Code, begin delete and end delete to amend Section 65560 of the Government Code, begin insert and to amend Section 402.1 of the Revenue and Taxation Code, end insert relating to open-space lands.

LEGISLATIVE COUNSEL’S DIGEST

AB 1251, as amended, Gomez. Greenway Development and Sustainment Act.

Existing law establishes various plans and programs intended to preserve, protect, and rehabilitate lands adjacent to rivers in the state. Existing law begin insert provides that a conservation easement, as defined, is an interest in real property voluntarily created and freely transferable for specified purposes and provides for the creation and transfer of conservation easements. Existing law end insert authorizes certain begin delete entities and organizations to acquire and hold conservation easements, including a end delete tax exempt nonprofit begin delete organization qualified to do business in this state 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. end delete begin insert organizations, state or local governmental entities, and California Native American tribes end insert begin insert to acquire and hold conservation easements if those entities meet specified criteria. end insert

This bill would enact the Greenway Development and Sustainment Act and would begin delete authorize those tax-exempt nonprofit organizations to acquire and hold a conservation easement if the organizations have as their primary purpose the development of a greenway, as defined. end delete begin insert apply to greenway easements certain creation and transfer provisions similar to those of conservation easements. The bill would define greenway as a pedestrian and bicycle, nonmotorized vehicle transportation, and recreational travel corridor that meets specified requirements. end insert The bill would also include greenways in the definition of “open-space land” for local planning purposes. begin delete The bill would make findings with regard to the development of a greenway along the Los Angeles River and its tributaries and would declare that, by developing a greenway, a city, county, or city and county, may apply for funds from various sources. end delete

begin insert

The California Constitution provides that, unless otherwise provided in the Constitution or by federal law, all property in the state is taxable and is assessed at its fair market value. Existing law requires the county assessor to consider, when valuing real property for property taxation purposes, the effect of any enforceable restrictions, including recorded conservation easements, to which the use of the land may be subjected.

end insert begin insert

This bill would provide that a recorded greenway easement constitutes an enforceable restriction for purposes of these tax provisions.

end insert begin insert

The bill would make findings with regard to the development of a greenway along the Los Angeles River and its tributaries and would declare that, by developing a greenway, a city, county, or city and county, may apply for funds from various sources.

end insert

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.  

The Legislature finds and declares the following
with regard to the development of a greenway along the Los
Angeles River and its tributaries:

(a) The area along the Los Angeles River and its tributaries is
particularly suited for the development of a greenway. A Los
Angeles River greenway that focuses on public-private partnerships
aimed at establishing a continuous pedestrian bikeway along the
Los Angeles River and its tributaries would foster job creation,
economic development, and community revitalization.

(b) By developing a greenway that promotes sustainability and
acts as a transportation corridor, a city, county, or city and county
may apply for alternative fuels funding, greenhouse gas reduction
funds, and other land use funds, as appropriate.

SEC. 2.  

This act shall be known, and may be cited, as the
Greenway Development and Sustainment Act.

begin delete

SEC. 3.  

Section 815.3 of the Civil Code is amended to read:

815.3.  

Only the following entities or organizations may acquire
and hold conservation easements:

(a) A tax-exempt nonprofit organization qualified under Section
501(c)(3) of the Internal Revenue Code and qualified to do business
in this state 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, or the
development of a greenway.

(b) The state or any city, county, city and county, district, or
other state or local governmental entity, if otherwise authorized
to acquire and hold title to real property and if the conservation
easement is voluntarily conveyed. A local governmental entity
shall not condition the issuance of an entitlement for use on the
applicant’s granting of a conservation easement pursuant to this
chapter.

(c) A federally recognized California Native American tribe or
a nonfederally recognized California Native American tribe that
is on the contact list maintained by the Native American Heritage
Commission to protect a California Native American prehistoric,
archaeological, cultural, spiritual, or ceremonial place, if the
conservation easement is voluntarily conveyed.

(d) For purposes of this section, the following terms have the
following meanings:

(1) “Adjacent” means within 400 yards from the property
boundary of an existing urban waterway.

(2)  “Greenway” means a pedestrian and bicycle, nonmotorized
vehicle transportation, and recreational travel corridor that meets
the following requirements:

(A) Includes landscaping that improves rivers and streams,
provides flood protection benefits, and incorporates the significance
and value of natural, historical, and cultural resources, as
documented in the local agency’s applicable planning document,
including, but not limited to, a master plan, a general plan, or a
specific plan.

(B) Is separated and protected from shared roadways, is adjacent
to an urban waterway, and incorporates both ease of access to
nearby communities and an array of amenities and services for the
users of the corridor and nearby communities.

(C) Is located on public lands or private lands, or a combination
of public and private lands, where public access to those lands for
greenway purposes has been legally authorized by the fee owner
of the land and, if applicable, the operator of any facility or
improvement located on the land, through leases, easements, or
other agreements entered into by the fee owner and the operator
of any affected facility or improvement on the land.

(D) Reflects design standards regarding appropriate widths,
clearances, setbacks from obstructions, and centerlines protecting
directional travel, and other considerations, as appropriate, that
are applicable for each affected local agency, as documented in
the local agency’s applicable planning document, including, but
not limited to, a master plan, general plan, or specific plan.

(E) May incorporate appropriate lighting, public amenities, art,
and other features that are consistent with a local agency’s planning
document, including, but not limited to, a general plan, master
plan, or specific plan.

(3) “Urban waterway” means a creek, stream, or river that
crosses (A) developed residential, commercial, or industrial
property or (B) open space where the land use is designated as
residential, commercial, or industrial, as referenced in a local
agency’s planning document, including, but not limited to, a
general plan, master plan, or specific general plan.

end delete

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Chapter 4.5 (commencing with Section 816.50) is
added to Title 2 of Part 2 of Division 2 of the end insert begin insert Civil Code end insert begin insert , to read: end insert

begin insert

 

Chapter   begin insert 4.5. end insert Greenway Easements

 

begin insert 816.50. end insert   

The Legislature finds and declares the following with
regard to the development of greenways along urban waterways:

(a) The restoration and preservation of land in its natural,
scenic, forested, recreational, or open-space condition is among
the most important environmental assets in California.

(b) Greenways have the potential to improve the quality of life
in, and connectivity between, communities, and provide important
recreational, open-space, wildlife, flood management, greenhouse
gas reduction, and urban waterfront revitalization opportunities.

(c) It is the policy of the Legislature and in the best interest in
the state to encourage the voluntary conveyance of greenway
easements to qualified nonprofit organizations.

begin insert 816.52. end insert   

For purposes of this chapter, the following definitions
apply:

(a) (1) “Adjacent” means within 400 yards from the property
boundary of an existing urban waterway.

(2) This subdivision does not create a new authority to place
or extend an easement on private property that is not part of a
voluntary agreement.

(b) “Greenway” means a pedestrian and bicycle, nonmotorized
vehicle transportation, and recreational travel corridor that meets
the following requirements:

(1) Includes landscaping that improves rivers and streams,
provides flood protection benefits, and incorporates the
significance and value of natural, historical, and cultural
resources, as documented in the local agency’s applicable planning
document, including, but not limited to, a master plan, a general
plan, or a specific plan.

(2) Is separated and protected from shared roadways, is
adjacent to an urban waterway, and incorporates both ease of
access to nearby communities and an array of amenities and
services for the users of the corridor and nearby communities.

(3) Is located on public lands or private lands, or a combination
of public and private lands, where public access to those lands for
greenway purposes has been legally authorized by, or legally
obtained from, the fee owner of the land and, if applicable, the
operator of any facility or improvement located on the land,
through leases, easements, or other agreements entered into by
the fee owner and the operator of any affected facility or
improvement on the land.

(4) Reflects design standards regarding appropriate widths,
clearances, setbacks from obstructions, and centerlines protecting
directional travel, and other considerations, as appropriate, that
are applicable for each affected local agency, as documented in
the local agency’s applicable planning document, including, but
not limited to, a master plan, general plan, or specific plan.

(5) May incorporate appropriate lighting, public amenities, art,
and other features that are consistent with a local agency’s
planning document, including, but not limited to, a general plan,
master plan, or specific plan.

(c) “Greenway easement” means any limitation in a deed, will,
or other instrument in the form of an easement, restriction,
covenant, or condition that is or has been executed by or on behalf
of the owner of the land subject to the easement and is binding
upon successive owners of that land, for the purpose of developing
greenways adjacent to urban waterways.

(d) “Local agency” means a city, county, or city and county.

(e) “Urban waterway” means a creek, stream, or river that
crosses (1) developed residential, commercial, or industrial
property or (2) open space where the land use is designated as
residential, commercial, or industrial, as referenced in a local
agency’s planning document, including, but not limited to, a
general plan, master plan, or specific general plan.

begin insert 816.54. end insert   

(a) A greenway easement is an interest in real property
voluntarily created and freely transferable in whole or in part for
the purposes stated in subdivision (c) of Section 816.52 by any
lawful method for the transfer of interests in real property in this
state.

(b) A greenway easement shall be perpetual in duration.

(c) Notwithstanding the fact that it may be negative in character,
a greenway easement is not personal in nature and shall constitute
an interest in real property.

(d) The particular characteristics of a greenway easement shall
be those granted or specified in the instrument creating or
transferring the easement.

begin insert 816.56. end insert   

Only the following entities or organizations may
acquire and hold a greenway easement:

(a) A tax-exempt nonprofit organization qualified under Section
501(c)(3) of the Internal Revenue Code and qualified to do business
in this state 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, or the
preservation or development of a greenway.

(b) The state or any city, county, city and county, district, or
other state or local governmental entity, if otherwise authorized
to acquire and hold title to real property and if the greenway
easement is voluntarily conveyed. A local governmental entity
shall not condition the issuance of an entitlement for use on the
applicant’s granting of a greenway easement pursuant to this
chapter.

(c) A federally recognized California Native American tribe or
a nonfederally recognized California Native American tribe that
is on the contact list maintained by the Native American Heritage
Commission to protect a California Native American prehistoric,
archaeological, cultural, spiritual, or ceremonial place, if the
greenway easement is voluntarily conveyed.

begin insert 816.58. end insert   

All interests not transferred and conveyed by the
instrument creating the greenway easement shall remain in the
grantor of the greenway easement, including the right to engage
in all uses of the land not affected by the greenway easement nor
prohibited by the greenway easement or by law.

begin insert 816.60. end insert   

Instruments creating, assigning, or otherwise
transferring greenway easements shall be recorded in the office
of the county recorder of the county where the land is situated, in
whole or in part, and those instruments shall be subject in all
respects to the recording laws.

begin insert 816.62. end insert   

(a) No greenway easement shall be unenforceable by
reason of lack of privity of contract or lack of benefit to particular
land or because not expressed in the instrument creating it as
running with the land.

(b) Actual or threatened injury to or impairment of a greenway
easement or actual or threatened violation of its terms may be
prohibited or restrained, or the interest intended for protection by
that easement may be enforced, by injunctive relief granted by any
court of competent jurisdiction in a proceeding initiated by the
grantor or by the owner of the greenway easement.

(c) In addition to the remedy of injunctive relief, the holder of
a greenway easement shall be entitled to recover money damages
for any injury to the greenway easement or to the interest being
protected thereby or for the violation of the terms of the greenway
easement. In assessing the damages, there may be taken into
account, in addition to the cost of restoration and other usual rules
of the law of damages, the loss of scenic, aesthetic, or
environmental value to the real property subject to the greenway
easement.

(d) The court may award to the prevailing party in any action
authorized by this section the costs of litigation, including
reasonable attorney’s fees.

begin insert 816.64. end insert   

Nothing in this chapter shall be construed to impair
or conflict with the operation of any law or statute conferring upon
any political subdivision the right or power to hold interests in
land comparable to greenway easements, including, but not limited
to, Chapter 12 (commencing with Section 6950) of Division 7 of
Title 1 of, Chapter 6.5 (commencing with Section 51050), Chapter
6.6 (commencing with Section 51070) and Chapter 7 (commencing
with Section 51200) of Part 1 of Division 1 of Title 5 of, and Article
10.5 (commencing with Section 65560) of Chapter 3 of Title 7 of,
the Government Code, and Article 1.5 (commencing with Section
421) of Chapter 3 of Part 2 of Division 1 of the Revenue and
Taxation Code.

begin insert 816.66. end insert   

A greenway easement granted pursuant to this chapter
constitutes an enforceable restriction, for purposes of Section
402.1 of the Revenue and Taxation Code.

end insert

SEC. 4.  

Section 65560 of the Government Code is amended
to read:

65560.  

(a) “Local open-space plan” is the open-space element
of a county or city general plan adopted by the board or council,
either as the local open-space plan or as the interim local
open-space plan adopted pursuant to Section 65563.

(b) “Open-space land” is any parcel or area of land or water that
is essentially unimproved and devoted to an open-space use as
defined in this section, and that is designated on a local, regional,
or state open-space plan as any of the following:

(1) Open space for the preservation of natural resources
including, but not limited to, areas required for the preservation
of plant and animal life, including habitat for fish and wildlife
species; areas required for ecologic and other scientific study
purposes; rivers, streams, bays, and estuaries; and coastal beaches,
lakeshores, banks of rivers and streams, greenways, as defined in
Section begin delete 815.3 end delete begin insert 816.52 end insert of the Civil Code, and watershed lands.

(2) Open space used for the managed production of resources,
including, but not limited to, forest lands, rangeland, agricultural
lands, and areas of economic importance for the production of
food or fiber; areas required for recharge of groundwater basins;
bays, estuaries, marshes, rivers, and streams that are important for
the management of commercial fisheries; and areas containing
major mineral deposits, including those in short supply.

(3) Open space for outdoor recreation, including, but not limited
to, areas of outstanding scenic, historic, and cultural value; areas
particularly suited for park and recreation purposes, including
access to lakeshores, beaches, and rivers and streams; and areas
that serve as links between major recreation and open-space
reservations, including utility easements, banks of rivers and
streams, trails, greenways, and scenic highway corridors.

(4) Open space for public health and safety, including, but not
limited to, areas that require special management or regulation
because of hazardous or special conditions such as earthquake
fault zones, unstable soil areas, flood plains, watersheds, areas
presenting high fire risks, areas required for the protection of water
quality and water reservoirs, and areas required for the protection
and enhancement of air quality.

(5) Open space in support of the mission of military installations
that comprises areas adjacent to military installations, military
training routes, and underlying restricted airspace that can provide
additional buffer zones to military activities and complement the
resource values of the military lands.

(6) Open space for the protection of places, features, and objects
described in Sections 5097.9 and 5097.993 of the Public Resources
Code.

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 402.1 of the end insert begin insert Revenue and Taxation Code end insert begin insert is
amended to read: end insert

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, 422.5, and 422.7.

(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
begin delete 25240 end delete begin insert 25226 end insert of the Health and Safety Code.

(8)  begin insert (A) end insert begin insert   end insert 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.

begin insert

(B) A recorded greenway easement, as described in Section
816.52 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 developing and preserving of greenways.

end insert

(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 begin delete in order end delete 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. This statute shall not 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.