BILL NUMBER: SB 555 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 12, 2009
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, the sale of conservation lands
from being sold to another owner or
having the transfer of possession and control
transferred of conservation lands 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. Existing law prohibits a public entity from commencing an
eminent domain proceeding until its governing body has adopted a
resolution of necessity that meets specified requirements.
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 to establish
requirements for acquisition of property subject to a conservation
easement . The bill would require the person seeking to
acquire the property to give the holder of the
conservation easement a notice containing
specified information and an opportunity to state any
objections to the proceedings acquisition
. The bill would require the holder of conservation
easement to provide notice, as specified, of the proposed acquisition
to a public entity that helped fund the purchase of the conservation
easement or that imposed conditions on a project that were
satisfied, in whole or in part, by the conservation easement. The
bill would provide that a holder of a conservation easement or a
public entity, as described above, that fails to make
written objection to the acquisition within specified time periods
would waive the right to appear and be heard at the hearing prior to
the adoption of a resolution of necessity. The bill would require a
person seeking to acquire the property subject to a conservation
easement to respond to any objections in writing and provide by
first-class mail the response to each easement holder or
public entity that filed an objection . The bill would
require the notice of the hearing on the resolution of necessity to
be sent to any holder of a conservation easement or public entity
that submits objections. The bill would require that a resolution of
necessity to acquire property subject to a conservation easement to
refer to specific authority for the acquisition of the
property. The bill would specify that the holder of a conservation
easement is entitled to compensation under the Eminent
Domain Law.
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
and recorded as required by Section 815.5 of the Civil Code
.
(2) "Holder of a conservation easement" means an entity or
organization authorized to acquire and hold conservation easements
pursuant to Section 815.3 of the Civil Code.
(2)
(3) "Person" means any person authorized to acquire
property by eminent domain.
(3)
(4) "Property appropriated to public use," as used in
Article 6 (commencing with Section 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, property that is subject
to a conservation easement, except easement
only 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 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
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
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
(c) Not later than 90 days prior to the hearing held pursuant to
Section 1245.235, the person seeking to acquire property subject to a
conservation easement shall give notice to the holder of a
conservation easement as provided in this subdivision.
(1) The notice required by this subdivision shall be sent by
first-class mail and, subject to the provisions of paragraph (2),
shall state all of the following:
(A) A general description, in text or by diagram, of the property
subject to a conservation easement that the person proposes to
acquire by eminent domain.
(B) A description of the public use or improvement that the person
is considering for the property subject to a conservation easement.
(C) The date by which objections may be submitted pursuant to
paragraph (3).
(D) A description of the duty of the holder of the conservation
easement, if the duty exists under paragraph (2), to provide a copy
of the notice by first-class mail to each public entity that provided
funds for the purchase of the easement or that imposed conditions on
a project that were satisfied, in whole or in part, by the
conservation easement, within 15 days of receipt of the notice from
the person seeking to acquire property, and a statement that any such
public entity has 30 days from the date the conservation easement
holder mailed the notice to submit written objections. This
description shall specifically reference paragraph (2) of subdivision
(c) of Section 1240.055 of the Code of Civil Procedure.
(E) A statement indicating that the failure of the holder of the
conservation easement to provide, in writing, its objections to the
acquisition, on or before 45 days after the date the notice from the
person seeking to acquire property is mailed, will result in the
waiver of the right to appear and be heard at the hearing required
prior to the adoption of the resolution of necessity.
(2) (A) If the requirements of subparagraph (B) are met, the
holder of the conservation easement shall provide by first-class mail
a copy of the notice described in paragraph (1) to any public entity
that provided funds for the purchase of the conservation easement or
that imposed conditions on a project that were satisfied, in whole
or in part, by the conservation easement. The holder of the
conservation easement shall provide the copy of the notice to the
public entity within 15 days of receipt of the notice from the person
seeking to acquire property and shall also notify the person seeking
to acquire property of any public entity that is entitled to
notification.
(B) Subparagraph (A) shall apply only if one of the following is
true:
(i) The holder of the easement is the original grantee of the
conservation easement and there is a public entity as described in
subparagraph (A).
(ii) The holder of the easement has actual knowledge of a public
entity as described in subparagraph (A).
(iii) Recorded documents evidence the identity of a public entity
as described in subparagraph (A).
(3) The holder of the conservation easement or the public entity
receiving notice, or both, may provide to the person seeking to
acquire the property written objections to the acquisition, including
identifying any potential conflict between the public use proposed
for the property and the purposes and terms of the conservation
easement. The holder of the conservation easement shall provide these
objections, if any, on or before 45 days after the date the person
seeking to acquire property mailed the notice or waive the right to
appear and be heard at the hearing required prior to the adoption of
the resolution of necessity. A public entity as described in
paragraph (2) shall provide these objections, if any, on or before 30
days after the date a conservation easement holder mailed a copy of
the notice to the entity or waive the right to appear and be heard at
the hearing required prior to the adoption of the resolution of
necessity.
(d) The person seeking to acquire the property subject to a
conservation easement shall, within 30 days after receipt of written
objections from the holder of the conservation easement or from a
public entity described in paragraph (2) of subdivision (c) shall
respond in writing to the objections. The response to the objections
shall be mailed by first-class mail to each easement holder or public
entity that filed an objection.
(e) The notice of the hearing on the resolution of necessity,
pursuant to Section 1245.235, shall be sent to any holder of a
conservation easement and public entity that submits objections and
shall inform them that they have the right to appear and be heard on
the matters referred to in Sections 1240.030, 1240.510, and 1240.610.
The resolution of necessity to acquire property subject to a
conservation easement shall refer specifically to either to Section
1240.510 or 1240.610 as authority for the acquisition of the
property.
(f) In any eminent domain proceeding to
acquire property subject to a conservation easement, 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)
(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
pursuant to subdivision (a) of Section 1260.220 and Chapter 9
(commencing with 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 fair market value of the
property if it were unencumbered by that conservation easement.
(g)
(h) 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.