California Legislature—2015–16 Regular Session

Assembly Bill No. 2651

Introduced by Assembly Member Gomez

February 19, 2016

An act to amend Section 816.52 of the Civil Code, and to amend Sections 65302 and 65560 of the Government Code, relating to open-space lands, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL’S DIGEST

AB 2651, as introduced, Gomez. Greenway easements.

(1) The Greenway Development and Sustainment Act applies to greenway easements certain creation and transfer provisions similar to those of conversation easements. The act defines various terms for purposes of the act, including “greenway,” to mean certain types of travel corridors that, among other requirements, incorporate an array of amenities for users of the corridor and nearby communities, and “greenway easement” to mean a limitation in a deed, will, or other instrument for the purpose of developing greenways adjacent to urban waterways. The act provides that a recorded greenway easement constitutes an enforceable restriction for purposes of certain property tax provisions.

This bill would require a greenway to incorporate an array of amenities only within an urbanized area, as defined. The bill would include easements created for the purpose of preserving greenways adjacent to urban waterways as greenway easements. The bill would require greenway easements created for the purpose of developing greenways to be consistent with restoration efforts undertaken at the adjacent urban waterways at the time of the creation of the easement.

Because this bill, by revising these terms for purposes of the act and by expanding the definition of a greenway easement, would change the manner in which county assessors assess property for property taxation purposes, this bill would impose a state-mandated local program.

(2) The Planning and Zoning Law requires each city, county, and city and county to prepare and adopt a general plan that contains certain mandatory elements, including a land use element and an open-space element. Existing law includes greenways, as defined in the Greenway Development and Sustainment Act, in the definition of “open-space land” for the purposes of the open-space element.

This bill would instead specify that greenways be included in the land use element of a general plan.

By revising the contents of the mandatory elements of a general plan, 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

(4) This bill would declare that it is to take effect immediately as an urgency statute.

Vote: ²⁄₃. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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

SECTION 1.  

Section 816.52 of the Civil Code is amended to
read:

816.52.  

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 begin insert within an urbanized
area end insert 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 begin delete amenities, end delete
begin insert amenities within an urbanized area, end insert 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 begin insert either of end insert the begin delete purpose of
developing end delete begin insert following purposes: end insert

begin insert

(1) Developing greenways adjacent to urban waterways
consistent with restoration efforts undertaken at those waterways
at the time of the creation of the easement, if any.

end insert

begin insert (2) end insert begin insert   end insert begin insert Preserving end insert greenways adjacent to urban waterways.

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

begin insert

(e) “Urbanized area” has the same meaning as set forth in
Section 21071 of the Public Resources Code.

end insert begin delete

(e)

end delete

begin insert (f) end insert  “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.

SEC. 2.  

Section 65302 of the Government Code is amended
to read:

65302.  

The general plan shall consist of a statement of
development policies and shall include a diagram or diagrams and
text setting forth objectives, principles, standards, and plan
proposals. The plan shall include the following elements:

(a) A land use element that designates the proposed general
distribution and general location and extent of the uses of the land
for housing, business, industry, open space, including agriculture,
natural resources, recreation, and enjoyment of scenic beauty,
education, public buildings and grounds, solid and liquid waste
disposal facilities, begin insert greenways, as defined in Section 816.52 of the
Civil Code, end insert and other categories of public and private uses of land.
The location and designation of the extent of the uses of the land
for public and private uses shall consider the identification of land
and natural resources pursuant to paragraph (3) of subdivision (d).
The land use element shall include a statement of the standards of
population density and building intensity recommended for the
various districts and other territory covered by the plan. The land
use element shall identify and annually review those areas covered
by the plan that are subject to flooding identified by flood plain
mapping prepared by the Federal Emergency Management Agency
(FEMA) or the Department of Water Resources. The land use
element shall also do both of the following:

(1) Designate in a land use category that provides for timber
production those parcels of real property zoned for timberland
production pursuant to the California Timberland Productivity Act
of 1982 (Chapter 6.7 (commencing with Section 51100) of Part 1
of Division 1 of Title 5).

(2) Consider the impact of new growth on military readiness
activities carried out on military bases, installations, and operating
and training areas, when proposing zoning ordinances or
designating land uses covered by the general plan for land, or other
territory adjacent to military facilities, or underlying designated
military aviation routes and airspace.

(A) In determining the impact of new growth on military
readiness activities, information provided by military facilities
shall be considered. Cities and counties shall address military
impacts based on information from the military and other sources.

(B) The following definitions govern this paragraph:

(i) “Military readiness activities” mean all of the following:

(I) Training, support, and operations that prepare the men and
women of the military for combat.

(II) Operation, maintenance, and security of any military
installation.

(III) Testing of military equipment, vehicles, weapons, and
sensors for proper operation or suitability for combat use.

(ii) “Military installation” means a base, camp, post, station,
yard, center, homeport facility for any ship, or other activity under
the jurisdiction of the United States Department of Defense as
defined in paragraph (1) of subsection (g) of Section 2687 of Title
10 of the United States Code.

(b) (1) A circulation element consisting of the general location
and extent of existing and proposed major thoroughfares,
transportation routes, terminals, any military airports and ports,
and other local public utilities and facilities, all correlated with the
land use element of the plan.

(2) (A) Commencing January 1, 2011, upon any substantive
revision of the circulation element, the legislative body shall
modify the circulation element to plan for a balanced, multimodal
transportation network that meets the needs of all users of streets,
roads, and highways for safe and convenient travel in a manner
that is suitable to the rural, suburban, or urban context of the
general plan.

(B) For purposes of this paragraph, “users of streets, roads, and
highways” mean bicyclists, children, persons with disabilities,
motorists, movers of commercial goods, pedestrians, users of public
transportation, and seniors.

(c) A housing element as provided in Article 10.6 (commencing
with Section 65580).

(d) (1) A conservation element for the conservation,
development, and utilization of natural resources including water
and its hydraulic force, forests, soils, rivers and other waters,
harbors, fisheries, wildlife, minerals, and other natural resources.
The conservation element shall consider the effect of development
within the jurisdiction, as described in the land use element, on
natural resources located on public lands, including military
installations. That portion of the conservation element including
waters shall be developed in coordination with any countywide
water agency and with all district and city agencies, including
flood management, water conservation, or groundwater agencies
that have developed, served, controlled, managed, or conserved
water of any type for any purpose in the county or city for which
the plan is prepared. Coordination shall include the discussion and
evaluation of any water supply and demand information described
in Section 65352.5, if that information has been submitted by the
water agency to the city or county.

(2) The conservation element may also cover all of the
following:

(A) The reclamation of land and waters.

(B) Prevention and control of the pollution of streams and other
waters.

(C) Regulation of the use of land in stream channels and other
areas required for the accomplishment of the conservation plan.

(D) Prevention, control, and correction of the erosion of soils,
beaches, and shores.

(E) Protection of watersheds.

(F) The location, quantity and quality of the rock, sand, and
gravel resources.

(3) Upon the next revision of the housing element on or after
January 1, 2009, the conservation element shall identify rivers,
creeks, streams, flood corridors, riparian habitats, and land that
may accommodate floodwater for purposes of groundwater
recharge and stormwater management.

(e) An open-space element as provided in Article 10.5
(commencing with Section 65560).

(f) (1) A noise element that shall identify and appraise noise
problems in the community. The noise element shall analyze and
quantify, to the extent practicable, as determined by the legislative
body, current and projected noise levels for all of the following
sources:

(A) Highways and freeways.

(B) Primary arterials and major local streets.

(C) Passenger and freight online railroad operations and ground
rapid transit systems.

(D) Commercial, general aviation, heliport, helistop, and military
airport operations, aircraft overflights, jet engine test stands, and
all other ground facilities and maintenance functions related to
airport operation.

(E) Local industrial plants, including, but not limited to, railroad
classification yards.

(F) Other ground stationary noise sources, including, but not
limited to, military installations, identified by local agencies as
contributing to the community noise environment.

(2) Noise contours shall be shown for all of these sources and
stated in terms of community noise equivalent level (CNEL) or
day-night average sound level (L_dn). The noise contours shall be
prepared on the basis of noise monitoring or following generally
accepted noise modeling techniques for the various sources
identified in paragraphs (1) to (6), inclusive.

(3) The noise contours shall be used as a guide for establishing
a pattern of land uses in the land use element that minimizes the
exposure of community residents to excessive noise.

(4) The noise element shall include implementation measures
and possible solutions that address existing and foreseeable noise
problems, if any. The adopted noise element shall serve as a
guideline for compliance with the state’s noise insulation standards.

(g) (1) A safety element for the protection of the community
from any unreasonable risks associated with the effects of
seismically induced surface rupture, ground shaking, ground
failure, tsunami, seiche, and dam failure; slope instability leading
to mudslides and landslides; subsidence; liquefaction; and other
seismic hazards identified pursuant to Chapter 7.8 (commencing
with Section 2690) of Division 2 of the Public Resources Code,
and other geologic hazards known to the legislative body; flooding;
and wildland and urban fires. The safety element shall include
mapping of known seismic and other geologic hazards. It shall
also address evacuation routes, military installations, peakload
water supply requirements, and minimum road widths and
clearances around structures, as those items relate to identified fire
and geologic hazards.

(2) The safety element, upon the next revision of the housing
element on or after January 1, 2009, shall also do the following:

(A) Identify information regarding flood hazards, including,
but not limited to, the following:

(i) Flood hazard zones. As used in this subdivision, “flood
hazard zone” means an area subject to flooding that is delineated
as either a special hazard area or an area of moderate or minimal
hazard on an official flood insurance rate map issued by the Federal
Emergency Management Agency (FEMA). The identification of
a flood hazard zone does not imply that areas outside the flood
hazard zones or uses permitted within flood hazard zones will be
free from flooding or flood damage.

(ii) National Flood Insurance Program maps published by
FEMA.

(iii) Information about flood hazards that is available from the
United States Army Corps of Engineers.

(iv) Designated floodway maps that are available from the
Central Valley Flood Protection Board.

(v) Dam failure inundation maps prepared pursuant to Section
8589.5 that are available from the Office of Emergency Services.

(vi) Awareness Floodplain Mapping Program maps and 200-year
flood plain maps that are or may be available from, or accepted
by, the Department of Water Resources.

(vii) Maps of levee protection zones.

(viii) Areas subject to inundation in the event of the failure of
project or nonproject levees or floodwalls.

(ix) Historical data on flooding, including locally prepared maps
of areas that are subject to flooding, areas that are vulnerable to
flooding after wildfires, and sites that have been repeatedly
damaged by flooding.

(x) Existing and planned development in flood hazard zones,
including structures, roads, utilities, and essential public facilities.

(xi) Local, state, and federal agencies with responsibility for
flood protection, including special districts and local offices of
emergency services.

(B) Establish a set of comprehensive goals, policies, and
objectives based on the information identified pursuant to
subparagraph (A), for the protection of the community from the
unreasonable risks of flooding, including, but not limited to:

(i) Avoiding or minimizing the risks of flooding to new
development.

(ii) Evaluating whether new development should be located in
flood hazard zones, and identifying construction methods or other
methods to minimize damage if new development is located in
flood hazard zones.

(iii) Maintaining the structural and operational integrity of
essential public facilities during flooding.

(iv) Locating, when feasible, new essential public facilities
outside of flood hazard zones, including hospitals and health care
facilities, emergency shelters, fire stations, emergency command
centers, and emergency communications facilities or identifying
construction methods or other methods to minimize damage if
these facilities are located in flood hazard zones.

(v) Establishing cooperative working relationships among public
agencies with responsibility for flood protection.

(C) Establish a set of feasible implementation measures designed
to carry out the goals, policies, and objectives established pursuant
to subparagraph (B).

(3) Upon the next revision of the housing element on or after
January 1, 2014, the safety element shall be reviewed and updated
as necessary to address the risk of fire for land classified as state
responsibility areas, as defined in Section 4102 of the Public
Resources Code, and land classified as very high fire hazard
severity zones, as defined in Section 51177. This review shall
consider the advice included in the Office of Planning and
Research’s most recent publication of “Fire Hazard Planning,
General Plan Technical Advice Series” and shall also include all
of the following:

(A) Information regarding fire hazards, including, but not limited
to, all of the following:

(i) Fire hazard severity zone maps available from the Department
of Forestry and Fire Protection.

(ii) Any historical data on wildfires available from local agencies
or a reference to where the data can be found.

(iii) Information about wildfire hazard areas that may be
available from the United States Geological Survey.

(iv) General location and distribution of existing and planned
uses of land in very high fire hazard severity zones and in state
responsibility areas, including structures, roads, utilities, and
essential public facilities. The location and distribution of planned
uses of land shall not require defensible space compliance measures
required by state law or local ordinance to occur on publicly owned
lands or open space designations of homeowner associations.

(v) Local, state, and federal agencies with responsibility for fire
protection, including special districts and local offices of
emergency services.

(B) A set of goals, policies, and objectives based on the
information identified pursuant to subparagraph (A) for the
protection of the community from the unreasonable risk of wildfire.

(C) A set of feasible implementation measures designed to carry
out the goals, policies, and objectives based on the information
identified pursuant to subparagraph (B) including, but not limited
to, all of the following:

(i) Avoiding or minimizing the wildfire hazards associated with
new uses of land.

(ii) Locating, when feasible, new essential public facilities
outside of high fire risk areas, including, but not limited to,
hospitals and health care facilities, emergency shelters, emergency
command centers, and emergency communications facilities, or
identifying construction methods or other methods to minimize
damage if these facilities are located in a state responsibility area
or very high fire hazard severity zone.

(iii) Designing adequate infrastructure if a new development is
located in a state responsibility area or in a very high fire hazard
severity zone, including safe access for emergency response
vehicles, visible street signs, and water supplies for structural fire
suppression.

(iv) Working cooperatively with public agencies with
responsibility for fire protection.

(D) If a city or county has adopted a fire safety plan or document
separate from the general plan, an attachment of, or reference to,
a city or county’s adopted fire safety plan or document that fulfills
commensurate goals and objectives and contains information
required pursuant to this paragraph.

(4) Upon the next revision of a local hazard mitigation plan,
adopted in accordance with the federal Disaster Mitigation Act of
2000 (Public Law 106-390), on or after January 1, 2017, or, if a
local jurisdiction has not adopted a local hazard mitigation plan,
beginning on or before January 1, 2022, the safety element shall
be reviewed and updated as necessary to address climate adaptation
and resiliency strategies applicable to the city or county. This
review shall consider advice provided in the Office of Planning
and Research’s General Plan Guidelines and shall include all of
the following:

(A) (i) A vulnerability assessment that identifies the risks that
climate change poses to the local jurisdiction and the geographic
areas at risk from climate change impacts, including, but not limited
to, an assessment of how climate change may affect the risks
addressed pursuant to paragraphs (2) and (3).

(ii) Information that may be available from federal, state,
regional, and local agencies that will assist in developing the
vulnerability assessment and the adaptation policies and strategies
required pursuant to subparagraph (B), including, but not limited
to, all of the following:

(I) Information from the Internet-based Cal-Adapt tool.

(II) Information from the most recent version of the California
Adaptation Planning Guide.

(III) Information from local agencies on the types of assets,
resources, and populations that will be sensitive to various climate
change exposures.

(IV) Information from local agencies on their current ability to
deal with the impacts of climate change.

(V) Historical data on natural events and hazards, including
locally prepared maps of areas subject to previous risk, areas that
are vulnerable, and sites that have been repeatedly damaged.

(VI) Existing and planned development in identified at-risk
areas, including structures, roads, utilities, and essential public
facilities.

(VII) Federal, state, regional, and local agencies with
responsibility for the protection of public health and safety and
the environment, including special districts and local offices of
emergency services.

(B) A set of adaptation and resilience goals, policies, and
objectives based on the information specified in subparagraph (A)
for the protection of the community.

(C) A set of feasible implementation measures designed to carry
out the goals, policies, and objectives identified pursuant to
subparagraph (B) including, but not limited to, all of the following:

(i) Feasible methods to avoid or minimize climate change
impacts associated with new uses of land.

(ii) The location, when feasible, of new essential public facilities
outside of at-risk areas, including, but not limited to, hospitals and
health care facilities, emergency shelters, emergency command
centers, and emergency communications facilities, or identifying
construction methods or other methods to minimize damage if
these facilities are located in at-risk areas.

(iii) The designation of adequate and feasible infrastructure
located in an at-risk area.

(iv) Guidelines for working cooperatively with relevant local,
regional, state, and federal agencies.

(v) The identification of natural infrastructure that may be used
in adaptation projects, where feasible. Where feasible, the plan
shall use existing natural features and ecosystem processes, or the
restoration of natural features and ecosystem processes, when
developing alternatives for consideration. For the purposes of this
clause, “natural infrastructure” means the preservation or
restoration of ecological systems, or utilization of engineered
systems that use ecological processes, to increase resiliency to
climate change, manage other environmental hazards, or both.
This may include, but is not limited to, floodplain and wetlands
restoration or preservation, combining levees with restored natural
systems to reduce flood risk, and urban tree planting to mitigate
high heat days.

(D) (i) If a city or county has adopted the local hazard
mitigation plan, or other climate adaptation plan or document that
fulfills commensurate goals and objectives and contains the
information required pursuant to this paragraph, separate from the
general plan, an attachment of, or reference to, the local hazard
mitigation plan or other climate adaptation plan or document.

(ii) Cities or counties that have an adopted hazard mitigation
plan, or other climate adaptation plan or document that substantially
complies with this section, or have substantially equivalent
provisions to this subdivision in their general plans, may use that
information in the safety element to comply with this subdivision,
and shall summarize and incorporate by reference into the safety
element the other general plan provisions, climate adaptation plan
or document, specifically showing how each requirement of this
subdivision has been met.

(5) After the initial revision of the safety element pursuant to
paragraphs (2), (3), and (4) upon each revision of the housing
element, the planning agency shall review and, if necessary, revise
the safety element to identify new information that was not
available during the previous revision of the safety element.

(6) Cities and counties that have flood plain management
ordinances that have been approved by FEMA that substantially
comply with this section, or have substantially equivalent
provisions to this subdivision in their general plans, may use that
information in the safety element to comply with this subdivision,
and shall summarize and incorporate by reference into the safety
element the other general plan provisions or the flood plain
ordinance, specifically showing how each requirement of this
subdivision has been met.

(7) Prior to the periodic review of its general plan and prior to
preparing or revising its safety element, each city and county shall
consult the California Geological Survey of the Department of
Conservation, the Central Valley Flood Protection Board, if the
city or county is located within the boundaries of the Sacramento
and San Joaquin Drainage District, as set forth in Section 8501 of
the Water Code, and the Office of Emergency Services for the
purpose of including information known by and available to the
department, the agency, and the board required by this subdivision.

(8) To the extent that a county’s safety element is sufficiently
detailed and contains appropriate policies and programs for
adoption by a city, a city may adopt that portion of the county’s
safety element that pertains to the city’s planning area in
satisfaction of the requirement imposed by this subdivision.

SEC. 3.  

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, begin delete greenways, as defined in
Section 816.52 of the Civil Code, end delete 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, begin delete greenways, end delete 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.

SEC. 4.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for certain
costs because a local agency or school district has the authority to
levy service charges, fees, or assessments sufficient to pay for the
program or level of service mandated by this act, within the
meaning of Section 17556 of the Government Code.

However, if the Commission on State Mandates determines that
this act contains other 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.

SEC. 5.  

This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:

In order to timely facilitate the orderly and efficient
implementation of Chapter 639 of the Statutes of 2015, it is
necessary that this act take effect immediately.