BILL NUMBER: SB 555 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 28, 2009
AMENDED IN SENATE APRIL 13, 2009
INTRODUCED BY Senator Kehoe
FEBRUARY 27, 2009
An act to add Section 1240.055 to the Code of Civil Procedure,
relating to eminent domain.
LEGISLATIVE COUNSEL'S DIGEST
SB 555, as amended, Kehoe. 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 person
from acquiring a conservation easement by eminent domain, unless
specified procedures are followed. The bill would require the person
to give the holder of the easement notice and an opportunity to state
any objections to the proceedings.
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) 1240.510)
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 , 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
90 days prior to the hearing on the resolution of necessity
, 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.
(D) Inform the easement holder that, upon receipt of the notice,
the easement holder 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.
(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 person intending to initiate
eminent domain proceedings 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 person intending to initiate eminent domain
proceedings 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.
(g)
(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.
(f) 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.
(g) This section shall not apply if the requirements of Section
1348.3 of the Fish and Game Code apply.
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.