BILL ANALYSIS
SB 555
Page 1
SENATE THIRD READING
SB 555 (Kehoe)
As Amended August 17, 2009
Majority vote
SENATE VOTE :22-14
JUDICIARY 7-3 APPROPRIATIONS
12-4
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|Ayes:|Feuer, Brownley, Evans, |Ayes:|De Leon, Ammiano, |
| |Jones, Krekorian, Lieu, | |Charles Calderon, Coto, |
| |Monning | |Davis, Fuentes, Hall, |
| | | |John A. Perez, |
| | | |Skinner, Solorio, |
| | | |Torlakson, Hill |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Tran, Knight, Silva |Nays:|Conway, Duvall, Miller, |
| | | |Audra Strickland |
| | | | |
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SUMMARY : 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)Defines "conservation easement" to mean any limitation in a
deed, will, or other instrument in the form of an easement,
restriction, covenant, or condition, which is or has been
executed by or on behalf of the owner of the land subject to
such easement and is binding upon successive owners of such
land, and the purpose of which is to retain land predominantly
in its natural, scenic, historical, agricultural, forested, or
open-space condition.
2)Specifies that a person or public entity authorized to acquire
property for public use by eminent domain shall exercise the
power of eminent domain to acquire property that is subject to a
conservation easement only as provided in this bill.
3)Provides that not later than 105 days prior to a hearing on a
resolution of necessity, or at the time that an offer is made to
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an owner or owners, whichever occurs earlier, a person seeking
to acquire property subject to a conservation easement shall
send a notice by first-class mail to the holder of the
conservation easement and shall state all of the following:
a) A general description of the property subject to a
conservation easement;
b) A description of the public use or improvement that is
being considered for property;
c) That written comments on the acquisition may be submitted
no later than 45 days from the date that the notice was
mailed to the holder of the conservation easement; and,
d) That the holder of the conservation easement, within 15
days of receipt of the notice, must send copies of the notice
to any public entity that provided funds or otherwise
contributed to the creation of the easement, as specified.
4)Requires the holder of the conservation movement, within 15 days
of receipt of the notice, to send copies of the notice 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.
5)Requires the holder of the conservation easement or any public
entity that provided funds for the purchase of the easement, or
both, to 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. Written
comments may be submitted no later than 45 days from the date
the person seeking to acquire the property mailed the notice to
the holder of the conservation easement.
6)Requires the person seeking to acquire the property, within 30
days after receipt of the written comments described in #5)
above, to respond in writing to the comments, as specified.
7)Requires that notice of a hearing on the resolution of necessity
shall be sent by first class mail to the holder of any
conservation easement and to any public entity noticed under #4)
above and to notify the noticed parties of their right to appear
and be heard on matters relating to the acquisition and planned
public use.
8)Provides that in any eminent domain proceeding to acquire
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property subject to a conservation easement, the holder of the
conservation easement shall be named as a defendant in the
condemnation proceeding; may appear at the proceedings; and
shall have the same rights and obligations as any other
defendant in the condemnation proceeding.
9)Provides that the holder of the conservation easement is an
owner of property entitled to compensation, as specified.
Provides that compensation for the acquisition of all interests
in property encumbered by a conservation easement shall not be
less than, and shall not exceed, the fair market value of the
fee simple interest of the property, as if it were not
encumbered by the conservation easement.
EXISTING LAW :
1)Provides that private property may be taken or damaged only for
a necessary "public use," and only with just compensation, as
defined, is paid to the private property owner.
2)Finds and declares that the preservation of land in its natural,
scenic, agricultural, historical, forested, or open-space
condition is one of the most important environmental assets of
California, and declares it to be the public policy of this
state to encourage the voluntary conveyance of conservation
easements to qualified nonprofit organizations.
3)Permits the following entities or organizations to acquire and
hold conservation easements: a) tax-exempt nonprofit 501(c)(3)
organizations with a primary purpose of preserving, protecting,
or enhancing land in its natural, scenic, historical,
agricultural, forested, or open-space condition or use; b) the
state or any city, county, city and county, district, or other
state or local government entity, as specified; and, c) a
California Native American tribe, as specified.
4)Provides that no governmental entity may condemn any wildlife
conservation easement, as defined, unless, prior to the
initiation of condemnation proceedings by a governmental
entity, the entity: a) gives notice to the holder of the
easement; b) provides an opportunity for the holder of the
easement to consult with the governmental agency; and, c)
provides a response to objections. In the condemnation
proceedings, the condemning governmental entity shall be
required to prove by clear and convincing evidence that its
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proposed use satisfies specified requirements under the Eminent
Domain Law.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, likely minor annual reimbursable costs for local
agencies seeking to acquire property by eminent domain to make the
required notifications and to respond in writing to comments from
entities having a conservation easement interest.
COMMENTS : This bill seeks to establish an opportunity for
thoughtful review whenever properties subject to conservation
easements are targeted for condemnation under eminent domain law.
A conservation easement is an agreement between the holder of the
easement and the property owner providing that the land will not
be used in certain ways, typically so that it may remain in its
natural, scenic, agricultural, historical, or open-space
condition.
However, according to the author, 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.
This not only destroys the environmental value created by the
easement, the author points out, it also results in wasted public
revenues if a government entity purchased, or helped to purchase,
those conservation easements. This bill seeks to ensure that
whenever an entity seeks to acquire property subject to a
conservation easement that the easement holder, and any entities
that contributed to acquisition of that easement, are given ample
notice and opportunity to be heard. Specifically, this bill
amends existing eminent domain law in the following ways:
1)Existing law requires, as a precursor to an eminent domain
taking, that the entity taking the property conduct a hearing on
a "resolution of necessity," which sets forth the significant
reasons that justify taking the property for public use, and the
nature of that public use. Existing law only requires, at this
initial stage, that the entity seeking to acquire the property
notify the property owner, but not necessarily the holder of an
easement or any other public entity that may have contributed to
the creation of the easement. This bill would require that
notice be sent to any holder of a conservation easement at least
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105 day prior to hearing on the resolution of necessity, and it
would require the easement holder, in turn, to notify any public
entities that contributed to the acquisition or creation of the
easement.
2)In addition, this bill creates a process that allows the
easement holder and interested public entities to be heard at
various points in the eminent domain proceedings, in order to
ensure a more robust public debate about whether the public use
for which the property is being required is consistent with the
policy objectives that prompted the creation of the conservation
easement in the first place. If the proposed public use is not
consistent with the conservation easement, then, the author
believes, there should be an opportunity for public discussion
about the merits of abandoning the conservation easement in
favor of the new proposed public use.
Opponents contend that this bill would erect new and onerous
barriers to the power of condemnation at a time when it is needed
to facilitate construction of needed infrastructure.
Analysis Prepared by : Thomas Clark/ JUD. / (916) 319-2334
FN: 0002267