BILL ANALYSIS
SB 555
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Date of Hearing: August 19, 2009
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Kevin De Leon, Chair
SB 555 (Kehoe) - As Amended: August 17, 2009
Policy Committee: JudiciaryVote:7-3
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill requires a person seeking to acquire, by eminent
domain, a property subject to a conservation easement to give
the holder of the conservation easement a notice containing
specified information and an opportunity to comment on the
acquisition. Specifically, this bill:
1)Requires that, not later than 105 days prior to the earlier of
a hearing on a resolution of necessity or the time that an
offer is made to an owner, a person or entity seeking to
acquire property subject to a conservation easement shall send
a notice, containing specified information, to the holder of
the conservation easement.
2)Requires the holder of the conservation easement, within 15
days of receiving the notice, to send copies to any public
entity that (a) provided funds for the acquisition of the
property or (b) imposed conditions on approval of a project
satisfied in whole or in part by the conservation easement.
3)Requires the holder of the conservation easement or any public
entity that provided funds for the purchase of the easement,
or both, to within 45 days provide the person seeking to
acquire the property with written comments on the proposed
acquisition, including identifying any potential conflict
between the proposed public use and the terms of the
conservation easement.
4)Requires the person seeking to acquire the property, within 30
days after receipt of the written comments per (3) to respond
in writing to the comments, as specified.
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5)Clarifies that the holder of a conservation easement is an
owner of property entitled to compensation pursuant to current
law.
6)Specifies that total compensation for the acquisition of all
interests in property encumbered by a conservation easement
shall be at the fair market value of the property as if it
were not encumbered by the easement.
7)Applies all of the above only to conservation easements in
which any of the following apply:
a) The conservation easement is held by a public entity.
b) A public entity provided funds to acquire the easement.
c) A public entity imposed conditions on approving or
permitting a project that were satisfied, in whole or in
part, by the easement.
FISCAL EFFECT
Likely minor annual reimbursable costs for local agencies
seeking to acquire property meeting one of the criteria
specified in #7 above by eminent domain to make the required
notifications and to respond in writing to comments from
entities having a conservation easement interest.
COMMENTS
1)Background . In 1979, California statutorily created a
"conservation easement" to permit various government entities
and non-profit organizations to acquire and hold such
easements. While governmental and non-profit entities could
always acquire absolute title to land to ensure it remained in
a natural and relatively undisturbed state, a "conservation
easement" allows entities to acquire "one stick in the bundle
of property rights" while the original owner continues to use,
possess, and hold transferable title to the land. In this
way, the conservationist land trust does not own the land, but
simply monitors the easement. The conservation easement is
essentially an agreement between the holder of the easement
and the property owner to the effect that the land will not be
used in certain ways, so that it may remain, for example, in
its natural, scenic, agricultural, historical, or open-space
condition. The easement is generally perpetual and runs with
the land, so that if the property is sold, the new owner takes
SB 555
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it subject to the conservation easement.
2)Purpose . Competing development, transportation, or
infrastructure needs have sometimes led public and private
utilities authorized to exercise the power of eminent domain
to use that power to acquire property subject to a
conservation easement. If the public use for which the
property is required is not consistent with the uses permitted
by the conservation easement, then the easement is effectively
destroyed. Although conservation easements generally run with
the land and bind subsequent owners, this is usually not the
case when land is acquired by eminent domain. Although an
acquiring entity may elect to maintain the easement, it does
not have to, since the "condemnation" in theory terminates the
existing title and, with it, the conservation easement.
According to the author and supporters, the use of eminent
domain in these instances not only threatens to destroy the
environmental value created by the conservation easement, it
also represents a considerable waste of public and private
investment on the part of government entities, as well as
non-profit agencies, which purchased those easements.
According to the author, this bill is intended simply to
ensure that whenever an entity seeks to acquire property
subject to a conservation easement that the easement holder,
and any other entities that contributed to acquisition of that
easement, are given ample notice and opportunity to be heard
in any condemnation proceedings.
3)Opposition . Several business and professional associations
claimed that the bill has an anti-developmental bias that will
impose new obstacles in the way of needed infrastructure
projects and lead to increased litigation between local
governments, developers, and easement holders. The author's
most recent amendments have attempted to address opponents'
concerns by limiting the bill's provisions to conservation
easements held by public entities, acquired with public funds,
or created to mitigate a previously-approved project.
Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081