Amended in Senate September 4, 2015

Amended in Senate June 24, 2015

Amended in Assembly April 14, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1251


Introduced by Assembly Member Gomez

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(Principal coauthor: Senator Hertzberg)

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(Coauthors: Assembly Members Brown, Cristina Garcia, and Gatto)

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February 27, 2015


An act to add Chapter 4.5 (commencing with Section 816.50) to Title 2 of Part 2 of Division 2 of the Civil Code, to amend Section 65560 of the Government Code, and to amend Section 402.1 of the Revenue and Taxation Code, 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 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 authorizes certain tax exempt nonprofit organizations, state or local governmental entities, and California Native American tribes to acquire and hold conservation easements if those entities meet specified criteria.

This bill would enact the Greenway Development and Sustainment Act and would 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. The bill would also include greenways in the definition of “open-space land” for local planning purposes.

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.

This bill would provide that a recorded greenway easement constitutes an enforceable restriction for purposes of these tax provisions.begin insert By changing the manner in which county assessors assess property for property taxation purposes, this bill would impose a state-mandated local program.end insert

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

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This bill would incorporate additional changes in Section 402.1 of the Revenue and Taxation Code, proposed by AB 668, to be operative only if AB 668 and this bill are both chaptered and become effective on or before January 1, 2016, and this bill is chaptered last.

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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.

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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.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: begin deleteno end deletebegin insertyesend insert.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

The Legislature finds and declares the following
2with regard to the development of a greenway along the Los
3Angeles River and its tributaries:

P3    1(a) The area along the Los Angeles River and its tributaries is
2particularly suited for the development of a greenway.begin delete Aend delete

3begin insert(b)end insertbegin insertend insertbegin insertAend insert Los Angeles River greenway that focuses on public-private
4partnerships aimed at establishing a continuous pedestrian bikeway
5along the Los Angeles River and its tributaries would foster job
6creation, economic development, and community revitalization.

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7(b) By developing a greenway that promotes sustainability and
8acts as a transportation corridor, a city, county, or city and county
9may apply for alternative fuels funding, greenhouse gas reduction
10funds, and other land use funds, as appropriate.

end delete
11

SEC. 2.  

This act shall be known, and may be cited, as the
12Greenway Development and Sustainment Act.

13

SEC. 3.  

Chapter 4.5 (commencing with Section 816.50) is
14added to Title 2 of Part 2 of Division 2 of the Civil Code, to read:

15 

16Chapter  4.5. Greenway Easements
17

 

18

816.50.  

The Legislature finds and declares the following with
19regard to the development of greenways along urban waterways:

20(a) The restoration and preservation of land in its natural, scenic,
21forested, recreational, or open-space condition is among the most
22important environmental assets in California.

23(b) Greenways have the potential to improve the quality of life
24in, and connectivity between, communities, and provide important
25recreational, open-space, wildlife, flood management, greenhouse
26gas reduction, and urban waterfront revitalization opportunities.

27(c) It is the policy of the Legislature and in the best interest in
28the state to encourage the voluntary conveyance of greenway
29easements to qualified nonprofit organizations.

30

816.52.  

For purposes of this chapter, the following definitions
31apply:

32(a) (1) “Adjacent” means within 400 yards from the property
33boundary of an existing urban waterway.

34(2) This subdivision does not create a new authority to place or
35extend an easement on private property that is not part of a
36voluntary agreement.

37(b) “Greenway” means a pedestrian and bicycle, nonmotorized
38vehicle transportation, and recreational travel corridor that meets
39the following requirements:

P4    1(1) Includes landscaping that improves rivers and streams,
2provides flood protection benefits, and incorporates the significance
3and value of natural, historical, and cultural resources, as
4documented in the local agency’s applicable planning document,
5including, but not limited to, a master plan, a general plan, or a
6specific plan.

7(2) Is separated and protected from shared roadways, is adjacent
8to an urban waterway, and incorporates both ease of access to
9nearby communities and an array of amenities and services for the
10users of the corridor and nearby communities.

11(3) Is located on public lands or private lands, or a combination
12of public and private lands, where public access to those lands for
13greenway purposes has been legally authorized by, or legally
14obtained from, the fee owner of the land and, if applicable, the
15operator of any facility or improvement located on the land,
16through leases, easements, or other agreements entered into by the
17fee owner and the operator of any affected facility or improvement
18on the land.

19(4) Reflects design standards regarding appropriate widths,
20clearances, setbacks from obstructions, and centerlines protecting
21directional travel, and other considerations, as appropriate, that
22are applicable for each affected local agency, as documented in
23the local agency’s applicable planning document, including, but
24not limited to, a master plan, general plan, or specific plan.

25(5) May incorporate appropriate lighting, public amenities, art,
26and other features that are consistent with a local agency’s planning
27document, including, but not limited to, a general plan, master
28plan, or specific plan.

29(c) “Greenway easement” means any limitation in a deed, will,
30or other instrument in the form of an easement, restriction,
31covenant, or condition that is or has been executed by or on behalf
32of the owner of the land subject to the easement and is binding
33upon successive owners of that land, for the purpose of developing
34greenways adjacent to urban waterways.

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

36(e) “Urban waterway” means a creek, stream, or river that
37crosses (1) developed residential, commercial, or industrial
38property or (2) open space where the land use is designated as
39residential, commercial, or industrial, as referenced in a local
P5    1agency’s planning document, including, but not limited to, a
2general plan, master plan, or specific general plan.

3

816.54.  

(a) A greenway easement is an interest in real property
4voluntarily created and freely transferable in whole or in part for
5the purposes stated in subdivision (c) of Section 816.52 by any
6lawful method for the transfer of interests in real property in this
7state.

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

9(c) Notwithstanding the fact that it may be negative in character,
10a greenway easement is not personal in nature and shall constitute
11an interest in real property.

12(d) The particular characteristics of a greenway easement shall
13be those granted or specified in the instrument creating or
14transferring the easement.

15

816.56.  

Only the following entities or organizations may
16acquire and hold a greenway easement:

17(a) A tax-exempt nonprofit organization qualified under Section
18501(c)(3) of the Internal Revenue Code and qualified to do business
19in this state that has as its primary purpose the preservation,
20protection, or enhancement of land in its natural, scenic, historical,
21agricultural, forested, or open-space condition or use, or the
22preservation or development of a greenway.

23(b) The state or any city, county, city and county, district, or
24other state or local governmental entity, if otherwise authorized
25to acquire and hold title to real property and if the greenway
26easement is voluntarily conveyed. A local governmental entity
27shall not condition the issuance of an entitlement for use on the
28applicant’s granting of a greenway easement pursuant to this
29chapter.

30(c) A federally recognized California Native American tribe or
31a nonfederally recognized California Native American tribe that
32is on the contact list maintained by the Native American Heritage
33Commission to protect a California Native American prehistoric,
34archaeological, cultural, spiritual, or ceremonial place, if the
35greenway easement is voluntarily conveyed.

36

816.58.  

All interests not transferred and conveyed by the
37instrument creating the greenway easement shall remain in the
38grantor of the greenway easement, including the right to engage
39in all uses of the land not affected by the greenway easement nor
40prohibited by the greenway easement or by law.

P6    1

816.60.  

Instruments creating, assigning, or otherwise
2transferring greenway easements shall be recorded in the office of
3the county recorder of the county where the land is situated, in
4whole or in part, and those instruments shall be subject in all
5respects to the recording laws.

6

816.62.  

(a) No greenway easement shall be unenforceable by
7reason of lack of privity of contract or lack of benefit to particular
8land or because not expressed in the instrument creating it as
9running with the land.

10(b) Actual or threatened injury to or impairment of a greenway
11easement or actual or threatened violation of its terms may be
12prohibited or restrained, or the interest intended for protection by
13that easement may be enforced, by injunctive relief granted by any
14court of competent jurisdiction in a proceeding initiated by the
15grantor or by the owner of the greenway easement.

16(c) In addition to the remedy of injunctive relief, the holder of
17a greenway easement shall be entitled to recover money damages
18for any injury to the greenway easement or to the interest being
19protected thereby or for the violation of the terms of the greenway
20easement. In assessing the damages, there may be taken into
21account, in addition to the cost of restoration and other usual rules
22of the law of damages, the loss of scenic, aesthetic, or
23environmental value to the real property subject to the greenway
24easement.

25(d) The court may award to the prevailing party in any action
26authorized by this section the costs of litigation, including
27reasonable attorney’s fees.

28

816.64.  

Nothing in this chapter shall be construed to impair or
29conflict with the operation of any law or statute conferring upon
30any political subdivision the right or power to hold interests in
31land comparable to greenway easements, including, but not limited
32to, Chapter 12 (commencing with Section 6950) of Division 7 of
33Title 1 of, Chapter 6.5 (commencing with Section 51050), Chapter
346.6 (commencing with Section 51070) and Chapter 7 (commencing
35with Section 51200) of Part 1 of Division 1 of Title 5 of, and
36Article 10.5 (commencing with Section 65560) of Chapter 3 of
37Title 7 of, the Government Code, and Article 1.5 (commencing
38with Section 421) of Chapter 3 of Part 2 of Division 1 of the
39Revenue and Taxation Code.

P7    1

816.66.  

A greenway easement granted pursuant to this chapter
2constitutes an enforceable restriction, for purposes of Section 402.1
3of the Revenue and Taxation Code.

4

SEC. 4.  

Section 65560 of the Government Code is amended
5to read:

6

65560.  

(a) “Local open-space plan” is the open-space element
7of a county or city general plan adopted by the board or council,
8either as the local open-space plan or as the interim local
9open-space plan adopted pursuant to Section 65563.

10(b) “Open-space land” is any parcel or area of land or water that
11is essentially unimproved and devoted to an open-space use as
12defined in this section, and that is designated on a local, regional,
13or state open-space plan as any of the following:

14(1) Open space for the preservation of natural resources
15including, but not limited to, areas required for the preservation
16 of plant and animal life, including habitat for fish and wildlife
17species; areas required for ecologic and other scientific study
18purposes; rivers, streams, bays, and estuaries; and coastal beaches,
19lakeshores, banks of rivers and streams, greenways, as defined in
20Section 816.52 of the Civil Code, and watershed lands.

21(2) Open space used for the managed production of resources,
22including, but not limited to, forest lands, rangeland, agricultural
23lands, and areas of economic importance for the production of
24food or fiber; areas required for recharge of groundwater basins;
25bays, estuaries, marshes, rivers, and streams that are important for
26the management of commercial fisheries; and areas containing
27major mineral deposits, including those in short supply.

28(3) Open space for outdoor recreation, including, but not limited
29to, areas of outstanding scenic, historic, and cultural value; areas
30particularly suited for park and recreation purposes, including
31access to lakeshores, beaches, and rivers and streams; and areas
32that serve as links between major recreation and open-space
33reservations, including utility easements, banks of rivers and
34streams, trails, greenways, and scenic highway corridors.

35(4) Open space for public health and safety, including, but not
36limited to, areas that require special management or regulation
37because of hazardous or special conditions such as earthquake
38fault zones, unstable soil areas, flood plains, watersheds, areas
39presenting high fire risks, areas required for the protection of water
P8    1quality and water reservoirs, and areas required for the protection
2and enhancement of air quality.

3(5) Open space in support of the mission of military installations
4that comprises areas adjacent to military installations, military
5training routes, and underlying restricted airspace that can provide
6additional buffer zones to military activities and complement the
7resource values of the military lands.

8(6) Open space for the protection of places, features, and objects
9described in Sections 5097.9 and 5097.993 of the Public Resources
10Code.

11

SEC. 5.  

Section 402.1 of the Revenue and Taxation Code is
12amended to read:

13

402.1.  

(a) In the assessment of land, the assessor shall consider
14the effect upon value of any enforceable restrictions to which the
15use of the land may be subjected. These restrictions shall include,
16but are not limited to, all of the following:

17(1) Zoning.

18(2) Recorded contracts with governmental agencies other than
19those provided in Sections 422, 422.5, and 422.7.

20(3) Permit authority of, and permits issued by, governmental
21agencies exercising land use powers concurrently with local
22governments, including the California Coastal Commission and
23regional coastal commissions, the San Francisco Bay Conservation
24and Development Commission, and the Tahoe Regional Planning
25Agency.

26(4) Development controls of a local government in accordance
27with any local coastal program certified pursuant to Division 20
28(commencing with Section 30000) of the Public Resources Code.

29(5) Development controls of a local government in accordance
30with a local protection program, or any component thereof, certified
31pursuant to Division 19 (commencing with Section 29000) of the
32Public Resources Code.

33(6) Environmental constraints applied to the use of land pursuant
34to provisions of statutes.

35(7) Hazardous waste land use restriction pursuant to Section
36 25226 of the Health and Safety Code.

37(8) (A) A recorded conservation, trail, or scenic easement, as
38described in Section 815.1 of the Civil Code, that is granted in
39favor of a public agency, or in favor of a nonprofit corporation
40organized pursuant to Section 501(c)(3) of the Internal Revenue
P9    1Code that has as its primary purpose the preservation, protection,
2or enhancement of land in its natural, scenic, historical, agricultural,
3forested, or open-space condition or use.

4(B) A recorded greenway easement, as described in Section
5816.52 of the Civil Code, that is granted in favor of a public
6agency, or in favor of a nonprofit corporation organized pursuant
7to Section 501(c)(3) of the Internal Revenue Code that has as its
8primary purpose the developing and preserving of greenways.

9(9) A solar-use easement pursuant to Chapter 6.9 (commencing
10with Section 51190) of Part 1 of Division 1 of Title 5 of the
11Government Code.

12(b) There is a rebuttable presumption that restrictions will not
13be removed or substantially modified in the predictable future and
14that they will substantially equate the value of the land to the value
15attributable to the legally permissible use or uses.

16(c) Grounds for rebutting the presumption may include, but are
17not necessarily limited to, the past history of like use restrictions
18in the jurisdiction in question and the similarity of sales prices for
19restricted and unrestricted land. The possible expiration of a
20restriction at a time certain shall not be conclusive evidence of the
21future removal or modification of the restriction unless there is no
22opportunity or likelihood of the continuation or renewal of the
23restriction, or unless a necessary party to the restriction has
24indicated an intent to permit its expiration at that time.

25(d) In assessing land with respect to which the presumption is
26unrebutted, the assessor shall not consider sales of otherwise
27comparable land not similarly restricted as to use as indicative of
28value of land under restriction, unless the restrictions have a
29demonstrably minimal effect upon value.

30(e) In assessing land under an enforceable use restriction wherein
31the presumption of no predictable removal or substantial
32modification of the restriction has been rebutted, but where the
33restriction nevertheless retains some future life and has some effect
34on present value, the assessor may consider, in addition to all other
35legally permissible information, representative sales of comparable
36lands that are not under restriction but upon which natural
37limitations have substantially the same effect as restrictions.

38(f) For the purposes of this section the following definitions
39apply:

P10   1(1) “Comparable lands” are lands that are similar to the land
2being valued in respect to legally permissible uses and physical
3attributes.

4(2) “Representative sales information” is information from sales
5of a sufficient number of comparable lands to give an accurate
6indication of the full cash value of the land being valued.

7(g) It is hereby declared that the purpose and intent of the
8Legislature in enacting this section is to provide for a method of
9determining whether a sufficient amount of representative sales
10information is available for land under use restriction to ensure
11the accurate assessment of that land. It is also hereby declared that
12the further purpose and intent of the Legislature in enacting this
13section and Section 1630 is to avoid an assessment policy which,
14in the absence of special circumstances, considers uses for land
15that legally are not available to the owner and not contemplated
16by government, and that these sections are necessary to implement
17the public policy of encouraging and maintaining effective land
18use planning. This statute shall not be construed as requiring the
19assessment of any land at a value less than as required by Section
20401 or as prohibiting the use of representative comparable sales
21information on land under similar restrictions when this information
22is available.

23begin insert

begin insertSEC. 5.5.end insert  

end insert

begin insertSection 402.1 of the end insertbegin insertRevenue and Taxation Codeend insertbegin insert is
24amended to read:end insert

25

402.1.  

(a) In the assessment of land, the assessor shall consider
26the effect upon value of any enforceable restrictions to which the
27use of the land may be subjected. These restrictions shall include,
28but are not limited to, all of the following:

29(1) Zoning.

30(2) Recorded contracts with governmental agencies other than
31those provided in Sections 422, 422.5, and 422.7.

32(3) Permit authority of, and permits issued by, governmental
33agencies exercising land use powers concurrently with local
34governments, including the California Coastal Commission and
35regional coastal commissions, the San Francisco Bay Conservation
36and Development Commission, and the Tahoe Regional Planning
37Agency.

38(4) Development controls of a local government in accordance
39with any local coastal program certified pursuant to Division 20
40(commencing with Section 30000) of the Public Resources Code.

P11   1(5) Development controls of a local government in accordance
2with a local protection program, or any component thereof, certified
3pursuant to Division 19 (commencing with Section 29000) of the
4Public Resources Code.

5(6) Environmental constraints applied to the use of land pursuant
6to provisions of statutes.

7(7) Hazardous waste land use restriction pursuant to Section
8begin delete 25240end deletebegin insert 25226end insert of the Health and Safety Code.

9(8) begin insert(A)end insertbegin insertend insertA recorded conservation, trail, or scenic easement, as
10described in Section 815.1 of the Civil Code, that is granted in
11favor of a public agency, or in favor of a nonprofit corporation
12organized pursuant to Section 501(c)(3) of the Internal Revenue
13Code that has as its primary purpose the preservation, protection,
14or enhancement of land in its natural, scenic, historical, agricultural,
15forested, or open-space condition or use.

begin insert

16(B) A recorded greenway easement, as described in Section
17816.52 of the Civil Code, that is granted in favor of a public
18agency, or in favor of a nonprofit corporation organized pursuant
19to Section 501(c)(3) of the Internal Revenue Code that has as its
20primary purpose the developing and preserving of greenways.

end insert

21(9) A solar-use easement pursuant to Chapter 6.9 (commencing
22with Section 51190) of Part 1 of Division 1 of Title 5 of the
23Government Code.

begin insert

24(10) A contract where the following apply:

end insert
begin insert

25(A) The contract is with a nonprofit corporation organized
26pursuant to Section 501(c)(3) of the Internal Revenue Code that
27has received a welfare exemption under Section 214.15 for
28properties intended to be sold to low-income families who
29participate in a special no-interest loan program.

end insert
begin insert

30(B) The contract restricts the use of the land for at least 30 years
31to owner-occupied housing available at affordable housing cost
32in accordance with Section 50052.5 of the Health and Safety Code.

end insert
begin insert

33(C) The contract includes a deed of trust on the property in
34favor of the nonprofit corporation to ensure compliance with the
35terms of the program, which has no value unless the owner fails
36to comply with the covenants and restrictions of the terms of the
37home sale.

end insert
begin insert

38(D) The local housing authority or an equivalent agency, or, if
39none exists, the city attorney or county counsel, has made a finding
P12   1that the long-term deed restrictions in the contract serve a public
2purpose.

end insert
begin insert

3(E) The contract is recorded and provided to the assessor.

end insert

4(b) There is a rebuttable presumption that restrictions will not
5be removed or substantially modified in the predictable future and
6that they will substantially equate the value of the land to the value
7attributable to the legally permissible use or uses.

8(c) Grounds for rebutting the presumption may include, but are
9not necessarily limited to, the past history of like use restrictions
10in the jurisdiction in question and the similarity of sales prices for
11restricted and unrestricted land. The possible expiration of a
12restriction at a time certain shall not be conclusive evidence of the
13future removal or modification of the restriction unless there is no
14opportunity or likelihood of the continuation or renewal of the
15restriction, or unless a necessary party to the restriction has
16indicated an intent to permit its expiration at that time.

17(d) In assessing land with respect to which the presumption is
18unrebutted, the assessor shall not consider sales of otherwise
19comparable land not similarly restricted as to use as indicative of
20value of land under restriction, unless the restrictions have a
21demonstrably minimal effect upon value.

22(e) In assessing land under an enforceable use restriction wherein
23the presumption of no predictable removal or substantial
24modification of the restriction has been rebutted, but where the
25restriction nevertheless retains some future life and has some effect
26on present value, the assessor may consider, in addition to all other
27legally permissible information, representative sales of comparable
28lands that are not under restriction but upon which natural
29limitations have substantially the same effect as restrictions.

30(f) For the purposes of this section the following definitions
31apply:

32(1) “Comparable lands” are lands that are similar to the land
33being valued in respect to legally permissible uses and physical
34attributes.

35(2) “Representative sales information” is information from sales
36of a sufficient number of comparable lands to give an accurate
37indication of the full cash value of the land being valued.

38(g) It is hereby declared that the purpose and intent of the
39Legislature in enacting this section is to provide for a method of
40determining whether a sufficient amount of representative sales
P13   1information is available for land under use restrictionbegin delete in orderend delete to
2ensure the accurate assessment of that land. It is also hereby
3declared that the further purpose and intent of the Legislature in
4enacting this section and Section 1630 is to avoid an assessment
5policy which, in the absence of special circumstances, considers
6uses for land that legally are not available to the owner and not
7contemplated by government, and that these sections are necessary
8to implement the public policy of encouraging and maintaining
9effective land use planning. This statute shall not be construed as
10requiring the assessment of any land at a value less than as required
11by Section 401 or as prohibiting the use of representative
12comparable sales information on land under similar restrictions
13when this information is available.

14begin insert

begin insertSEC. 6.end insert  

end insert
begin insert

Section 5.5 of this bill incorporates amendments to
15Section 402.1 of the Revenue and Taxation Code proposed by both
16this bill and Assembly Bill 668. It shall only become operative if
17(1) both bills are enacted and become effective on or before
18January 1, 2016, (2) each bill amends Section 402.1 of the Revenue
19and Taxation Code, and (3) this bill is enacted after Assembly Bill
20668, in which case Section 5 of this bill shall not become operative.

end insert
21begin insert

begin insertSEC. 7.end insert  

end insert
begin insert

If the Commission on State Mandates determines that
22this act contains costs mandated by the state, reimbursement to
23local agencies and school districts for those costs shall be made
24pursuant to Part 7 (commencing with Section 17500) of Division
254 of Title 2 of the Government Code.

end insert


O

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