BILL NUMBER: SB 555 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 13, 2009
INTRODUCED BY Senator Kehoe
FEBRUARY 27, 2009
An act to add Section 5096.519 to the Public Resources
Code, relating to public lands. 1240.055 to the Code
of Civil Procedure, relating to eminent domain.
LEGISLATIVE COUNSEL'S DIGEST
SB 555, as amended, Kehoe. Public lands: condemnation of
Eminent Domain Law: conservation easement.
Existing law authorizes various agencies to acquire land for
purposes related to conservation. Existing law provides for a
conservation easement to retain land predominantly in its natural,
scenic, historical, agricultural, forested, or open-space condition.
Existing law establishes procedures for the independent
appraisal review of land to be acquired for conservation and
establishes a conservation easement registry. Existing law prohibits,
with a specified exception, conservation lands from being sold to
another owner or having possession and control transferred to another
agency, unless specified actions occur.
The California Constitution permits private property to be taken
or damaged for public use only when just compensation is paid. The
Eminent Domain Law prescribes how that constitutionally authorized
power may be exercised and permits that exercise only for a public
use.
This bill would revise the Eminent Domain Law to
prohibit a governmental entity person
from condemning acquiring a
conservation easement acquired by a state agency or
nonprofit land trust by eminent domain , unless
specified procedures are followed. The bill would require the
governmental entity person to give the
holder of the easement notice and an opportunity to state any
objections to the condemnation proceedings
. The bill would also require the governmental entity
to prove by clear and convincing evidence that its proposed use
satisfies statutory requirements that the condemnation be for
compatible use and necessary for public use.
To the extent that this bill would impose new duties on a local
governmental entity, this bill would create a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1240.055 is added to the
Code of Civil Procedure , to read:
1240.055. (a) As used in this section, the following terms have
the following meanings:
(1) "Conservation easement" means a recorded conservation easement
as defined in Section 815.1 of the Civil Code.
(2) "Person" means any person authorized to acquire property by
eminent domain.
(3) "Property appropriated to public use," as used in Article 6
(commencing with Section 1240.410) and Article 7 (commencing with
Section 1240.610), includes a conservation easement.
(b) A person authorized to acquire property for a particular use
by eminent domain shall not exercise the power of eminent domain to
acquire for public use property that is subject to a conservation
easement, except as provided in this section.
(c) When it appears that property subject to a conservation
easement may be required for a public use, the person seeking to
acquire the property shall, not less than 30 days prior to the date
it intends to initiate eminent domain proceedings, provide written
notice to the entity or organization that holds the conservation
easement of its intention to initiate eminent domain proceedings to
acquire property that is subject to a conservation easement.
(1) The notice shall:
(A) Provide a general description, in text or by diagram, of the
property subject to a conservation easement that is proposed for
acquisition.
(B) Provide a description of the public use or improvement that
the person is considering for the property.
(C) Provide an opportunity for the holder of the conservation
easement to consult with the person seeking to acquire the property
prior to commencement of eminent domain proceedings.
(2) Within 30 days after receipt of notice from the person seeking
to acquire the property, the holder of the conservation easement may
state in writing its objections to the acquisition, including
identifying any potential conflict between the public use proposed
for the property and the particular characteristics of the
conservation easement.
(3) The person intending to acquire the property subject to a
conservation easement shall, within 30 days after receipt of comments
from the holder of the conservation easement, respond in writing to
the comments.
(d) If the conservation easement was purchased with state or local
public funds or if a public entity required the conservation
easement as a condition of project approval, the easement holder upon
receipt of the notice pursuant to paragraph (1) shall inform the
person intending to initiate eminent domain proceedings of the name
and address of any public entity that provided funds for the purchase
of the easement or required it as a condition of approval. The
easement holder shall provide to the public entity that provided
funds or required the easement the same notice described in paragraph
(1) of subdivision (c) and the public entity shall have 30 days
after receipt of notice from the easement holder to state in writing
its objections to the acquisition. This provision shall not apply if
there are no recorded documents that evidence, and the easement
holder has no record or independent knowledge of, the identity of the
public entity that provided funds to purchase the conservation
easement or that required the conservation easement as a condition of
approval.
(e) In any eminent domain proceeding to acquire property subject
to a conservation easement:
(1) The provisions of Section 815.2 of the Civil Code shall apply.
(2) The holder of the conservation easement shall be named as a
defendant, as set forth in Section 1250.220, may appear in the
proceedings as set forth in Section 1250.230, and shall have all the
same rights and obligations as any other defendant in the eminent
domain proceeding.
(f) No person shall initiate eminent domain proceedings against
property subject to a conservation easement unless the following
findings are made:
(1) The location is not based primarily on a consideration of the
lower cost of acquiring the property.
(2) There is no other land within the vicinity on which it is
reasonably feasible to locate the public improvement.
(g) The holder of a conservation easement is an owner of property
entitled to compensation if that property is taken, pursuant to
Section 1263.010. Compensation for the taking of all interests in the
property subject to a conservation easement shall be no less than
the compensation paid for the property if it were unencumbered by
that conservation easement.
SEC. 2. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SECTION 1. Section 5096.519 is added to the
Public Resources Code, to read:
5096.519. (a) A governmental entity shall not condemn a
conservation easement acquired by a state agency or nonprofit land
trust, except as provided in subdivision (c).
(b) As used in this section, the following terms have the
following meanings:
(1) "Conservation easement" means a recorded conservation
easement, as defined in Section 815.1 of the Civil Code, that was
created to exist in perpetuity or will exist for at least 10 years
and that is acquired with state or local funds or charitable or
income tax resources, is held by a qualified entity, as defined in
Section 815.3 of the Civil Code, and is administered primarily for
retaining land predominantly in its natural, scenic, historical,
agricultural, forested, or open-space condition.
(2) "Public use," as used in Article 6 (commencing with Section
1240.510) and Article 7 (commencing with Section 1240.610) of Chapter
3 of Title 7 of Part 3 of the Code of Civil Procedure, means
privately owned lands managed for the protection of natural,
cultural, open-space, or recreational resources in public trust.
(c) (1) Prior to the initiation by a governmental entity of
condemnation proceedings against a property that is subject to a
conservation easement, the governmental entity shall do all of the
following:
(A) Give notice to the holder of the easement.
(B) Provide an opportunity for the holder of the easement to
consult with the governmental entity.
(C) Provide the holder of the easement the opportunity to state
its objections to the condemnation.
(D) Provide a response to the objections.
(2) Article 6 (commencing with Section 1240.510) and Article 7
(commencing with Section 1240.610) of Chapter 3 of Title 7 of Part 3
of the Code of Civil Procedure shall apply to condemnation
proceedings initiated by a governmental entity against a conservation
easement. In those proceedings, the condemning governmental entity
shall be required to prove by clear and convincing evidence that its
proposed use satisfies the requirements of Article 6 (commencing with
Section 1240.510) or Article 7 (commencing with Section 1240.610) of
Chapter 3 of Title 7 of Part 3 of the Code of Civil Procedure.
SEC. 2. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.