BILL NUMBER: SB 555 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 21, 2009
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 to another owner
or the transfer of possession and control 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 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 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 , as specified, and
to contain information regarding the effect of failing to file a
written request to appear and be heard . 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 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.
(3) "Person" means any person authorized to acquire property by
eminent domain.
(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 exercise the power of eminent domain to
acquire, for public use, property that is subject to a conservation
easement only as provided in this section.
(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 by first-class mail
to any holder of a conservation easement and public entity
that submits objections of which the person
seeking to acquire the property has received notice pursuant to
paragraph (2) of subdivision (c) 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 notice shall
state that, pursuant to paragraph (3) of subdivision (b) o
f Section 1245.235, failure to file a written request to appear and
be heard within 15 days after the notice was mailed will result in a
waiver of the right to appear and be heard. 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.
(g) The holder of a conservation easement is entitled to
compensation pursuant to subdivision (a) of Section 1260.220 and
Chapter 9 (commencing with Section 1263.010). Compensation for the
taking of the property subject to a conservation easement shall be no
less than the fair market value of the property if it were
unencumbered by that conservation easement.
(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.