BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 555|
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UNFINISHED BUSINESS
Bill No: SB 555
Author: Kehoe (D)
Amended: 9/3/09
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 4/21/09
AYES: Corbett, Florez, Leno
NOES: Harman, Walters
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 22-14, 6/2/09
AYES: Alquist, Calderon, Cedillo, Corbett, DeSaulnier,
Ducheny, Florez, Hancock, Kehoe, Leno, Liu, Lowenthal,
Maldonado, Oropeza, Padilla, Pavley, Romero, Simitian,
Steinberg, Wiggins, Wolk, Yee
NOES: Aanestad, Ashburn, Benoit, Cogdill, Cox, Denham,
Dutton, Harman, Hollingsworth, Huff, Strickland, Walters,
Wright, Wyland
NO VOTE RECORDED: Correa, Negrete McLeod, Runner, Vacancy
ASSEMBLY FLOOR : 50-25, 9/8/09 - See last page for vote
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.
CONTINUED
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Assembly Amendments (1) amend information contained in
notice to the conservation easement; (2) specify
circumstances requiring the notice; and (3) add
definitions.
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
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. 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.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,
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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 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 be
submitted no later than 45 days from the date that
the notice was mailed to the holder of the
conservation easement;
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
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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
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.
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.
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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
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
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successful and economically prudent natural resource
conservation strategies."
This bill, sponsored by the California Council of Land
Trusts, similarly seeks to provide conservation easement
holders and public funders, if any, notice and an
opportunity to be heard in condemnation proceedings.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 9/9/09)
California Council of Land Trusts (source)
American Land Conservancy
Amigos de los Rios
Association of California Water Agencies
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
East Bay Municipal Utility District
East Bay Regional Park District
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
Metropolitan Water District
Mountain Meadows Conservancy
Muir Heritage Land Trust
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Natural Resources Defense Council
Peninsula Open Space Trust
Placer Land Trust
Planning and Conservation League
Preserve Calaveras
Resource Landowners Coalition
San Diego County Water Authority
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
Trust for Public Land
OPPOSITION : (Verified 9/9/09)
City of Lake Forest
Orange County Board of Supervisors
Orange County Chamber of Commerce
Orange County Taxpayers Association
Orange County Transportation Authority
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
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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
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 and public
funders receive notice and have the right to object, 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 opponents 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
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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.
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."
The above opposition was based on a prior version of the
bill, the Senate Judiciary did not receive any letter
removing opposition by any of the above parties.
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Beall, Bill Berryhill, Block,
Blumenfield, Brownley, Buchanan, Caballero, Carter,
Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,
Feuer, Fong, Fuentes, Furutani, Galgiani, Hall, Hayashi,
Hernandez, Hill, Huber, Huffman, Jones, Krekorian, Lieu,
Bonnie Lowenthal, Ma, Mendoza, Monning, Nava, John A.
Perez, V. Manuel Perez, Portantino, Ruskin, Salas,
Saldana, Skinner, Solorio, Swanson, Torlakson, Torres,
Torrico, Yamada, Bass
NOES: Adams, Anderson, Tom Berryhill, Conway, Cook,
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DeVore, Duvall, Emmerson, Fuller, Gaines, Gilmore,
Hagman, Harkey, Jeffries, Knight, Logue, Miller,
Nestande, Niello, Nielsen, Silva, Smyth, Audra
Strickland, Tran, Villines
NO VOTE RECORDED: Blakeslee, Charles Calderon, Fletcher,
Garrick, Vacancy
RJG:cm 9/9/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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