BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 555|
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THIRD READING
Bill No: SB 555
Author: Kehoe (D)
Amended: 5/12/09
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 4/21/09
AYES: Corbett, Florez, Leno
NOES: Harman, Walters
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Eminent Domain Law: conservation easement
SOURCE : Author
DIGEST : This bill revises the Eminent Domain Law by
establishing requirements for acquisition of property
subject to a conservation easement.
ANALYSIS : 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 specified exception, the sale of
conservation lands to another owner or the transfer of
possession and control of conservation lands to another
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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 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 revises the Eminent Domain Law to establish
requirements for acquisition of property subject to a
conservation easement. The bill requires 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 requires 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
provides 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 waives the right to appear and be heard at the
hearing prior to the adoption of a resolution of necessity.
The bill requires 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 requires the notice of the
hearing on the resolution of necessity to be sent to any
holder of a conservation easement or public entity that
subjects objections. The bill requires that a resolution
of necessity to acquire property subject to a conservation
easement refer to specific authority for the acquisition of
the property. The bill specifies that the holder of a
conservation easement is entitled to compensation under the
Eminent Domain Law.
This bill provides that the following terms have the
following meanings:
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1."Conservation easement" means 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.
Background
In 1979, the Legislature declared that the preservation of
land in its natural, scenic, agricultural, historical,
forested, or open-space condition is among the most
important environmental assets of California. In
conjunction with that declaration, the Legislature broadly
defined a "conservation easement," and codified that those
easements are an interest in real property, perpetual in
duration, not personal in nature, and having the
characteristics granted or specified in the instrument
created in the easement.
Generally speaking, a conservation easement is a legal
contract between a property owner and a third party (often
a land trust) that restricts the use of the land for the
purpose of conservation (retaining the land predominantly
in its natural, scenic, historical, agricultural, forested,
or open-space condition). Those easements typically
restrict development and subdivision of the property, run
with the land (i.e., bind the original and subsequent
owners), and are recorded with the county recorder to
provide public notice of the easement. Since the property
owner retains ownership of the property, conservation
easements also represent a less expensive alternative to
outright purchase of the property for nonprofits seeking to
protect the land, and may result in a tax advantage to the
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property owner. The easement itself is held by the third
party (nonprofit 501(c)(3), Native American Tribe, or
government entity, as specified). The sponsor, the
California Council of Land Trusts, provides the following
two examples of recent conservation easement donations to
the Land Trust of Santa Barbara County:
"[The first donation] a 195-acre avocado farm that
protects farmland, wildlife, habitat and a creek, and
provides scenic views from a public trail. The second
donation as appraised at $42 million on a 3,100-acre
property. It contains extensive watershed lands and
farmlands, and because the property abuts a very
popular hiking trail, it also provides scenic views to
the public."
In response to prior concerns about the condemnation of
conservation easements, AB 910 (Wayne), Chapter 863,
Statutes of 2001, prohibited a governmental entity from
condemning wildlife conservation easements acquired by a
state agency, or the property under those easements, unless
certain procedures were complied with, including giving
notice of the proposed condemnation to the holder of the
easement, and allowing that holder to states its objections
and to receive a response. (Fish and Game Code Section
1348.3.) The sponsor of the bill, the California Waterfowl
Association, argues that the ease with which conservation
easements could be condemned under California law, at that
time, "threaten[ed] to undermine one of California's most
successful and economically prudent natural resource
conservation strategies."
This bill, sponsored by the California Council of Land
Trusts, similarly seeks to restrict the ability of a person
to condemn a conservation easement by imposing additional
notices, responses, findings, and clarifying the
compensation to be paid if land is taken.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 5/18/09)
California Council of Land Trusts (source)
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American Land Conservancy
Amigos de los Rios
Audubon California
Bay Area Open Space Council
Big Sur Land Trust
Bolsa Chica Land Trust
CalCoast
California League of Conservation Voters
California Outdoor Heritage Alliance
California Rangeland Trust
California State Parks Foundation
Catalina Island Conservancy
Central Valley Land Trust Council
Defenders of Wildlife
Eastern Sierra Land Trust
Feather River Land Trust
Lake County Land Trust
Land Conservancy of San Luis Obispo County
Land Trust for Santa Barbara County
Land Trust of Napa County
Land Trust of Santa Cruz County
Lassen land and Trails Trust
Marin Agricultural Land Trust
Mendocino Land Trust
Mountain Meadows Conservancy
Muir Heritage Land Trust
Natural Resources Defense Council
Peninsula Open Space Trust
Placer Land Trust
Planning and Conservation League
Preserve Calaveras
San Joaquin River Parkway and Conservation Trust, Inc.
Sanctuary Forest
Mount Diablo
Sempervirens Fund
Sequoia Riverlands Trust
Shasta Land Trust
Sierra-Cascade Land Trust Council
Sierra Club - California
Sierra Foothill Conservancy
Solano Land Trust
Sonoma Land Trust
Tri-Valley Conservancy
Truckee Donner Land Trust
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Trust for Public Land
OPPOSITION : (Verified 5/18/09)
Orange County Board of Supervisors
American Council of Engineering Companies of California
California Business Properties Association
California Chamber of Commerce
California Forestry Association
Orange County Chamber of Commerce
Orange County Taxpayers Association
ARGUMENTS IN SUPPORT : According to the author's office,
"Tremendous public and charitable assets have been invested
in the acquisition of conservation easements in California.
Yet, with the narrow exception created for a relatively
small number of easements in Fish and Game Code Section
1348.3, conservation easements are as vulnerable to
condemnation as any other property in private ownership.
The fact that a conservation easement exists, that
sometimes millions of dollars in public dollars have been
expended to conserve it, or that a public agency has said
that the property's conservation advances certain public
goals are all irrelevant to a potential condemnation
proceeding. In spite of the implicit recognition of the
public value of conservation easements as evidenced in law
and public funding, they are not recognized as having any
public use for the purposes of eminent domain law.
Further, the easement holder - who holds a real property
interest - does not have to be notified of the proposed
condemnation. Nonprofit easement holders report that
governmental entities with the power of eminent domain
often fail to recognize a conservation easement as a
separate and distinct property right. In numerous
instances, the entity has refused to acknowledge the
easement holder until the holder of the fee title land
refuses to talk with the entity about the condemnation
without the easement holder or the easement holder has
retained counsel to force discussion.
The conservation community is facing an increasing number
of condemnations of conservation easements, and it expects
this trend to increase as development pressure continues
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and communities are built out. The conservation community
is not trying to eliminate the power of eminent domain - it
recognizes that other societal needs will sometimes require
the condemnation of a conservation easement. However, it
is seeking to ensure that easement holders receive notice
and have the right to object, and to create a high standard
for condemning easements to help ensure that public use and
investment is not lightly lost.
The California Outdoor Heritage Alliance (COHA), in
support, notes that, "?urban growth increasingly threatens
easements in cases where public agencies attempt to use
their condemnation powers to construct roads and other
infrastructure. If successful, this action not only
compromises the wildlife values of the conservation
easement, but also wastes valuable public funding that was
typically used initially to acquire the easement. In
addition, it threatens the future use of easements as
conservation tools undermining the landowner trust that
easements, in fact, protect land in perpetuity."
ARGUMENTS IN OPPOSITION : The American Council of
Engineering Companies of California, California Business
Properties Association, California Chamber of Commerce, and
California Forestry Association, in opposition, contend
that this bill "would be used to further block jobs and
construction of infrastructure projects in California."
These groups contend, among other things, that (1) this
bill would greatly expand the scope of easements protected
from condemnation; (2) property could be immunized from
condemnation by having a conservation easement placed on
it; and (3) "if SB 555 were to become law, conservation
easements can be expected to quickly become a favorite
weapon in the arsenal of those opposed to a particular
condemnation effort or, more generally, of those opposed to
an infrastructure or other public project." The Orange
Chamber of Commerce raises similar concerns about the bill.
While the above opposition was based on a prior version of
the bill, the Senate Public Safety Committee did not
receive any letter removing opposition by any of the above
parties. The author and sponsor should continue to work
with those parties to ensure that the bill's new
protections are not abused.
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The Orange County Taxpayers Association, in opposition,
further contends that this bill delays construction of
projects, and that the intent seems to e to delay the
completion of the SR-241 Toll Road. The Orange County
Board of Supervisors similarly argues:
"SB 555 is intended to stop the ability of governmental
agencies to add and adjust conservation easement
boundaries. This measure interferes with state and local
decision making authority and the ability to protect the
public interest in the management of conservation easements
by creating new rights of action for parties to litigate
against governmental entities. Clearly, this bill is an
attempt to impede completion of the final segment of the
Foothill south toll road by eliminating exploration of any
and all potential routes and increasing construction
costs."
RJG:cm 5/18/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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