BILL ANALYSIS
SB 555
Page 1
SENATE THIRD READING
SB 555 (Kehoe)
As Amended September 3, 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
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to 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
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acquisition and planned public use.
8)Provides that 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 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
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
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easement. This bill would require that notice be sent to any
holder of a conservation easement at least 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.
Analysis Prepared by : Thomas Clark/ JUD. / (916) 319-2334
FN: 0002822