BILL ANALYSIS �
SB
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SENATE THIRD READING
SB 328 (Kehoe)
As Amended June 22, 2011
Majority vote
SENATE VOTE :37-1
JUDICIARY 10-0 APPROPRIATIONS 14-2
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|Ayes:|Feuer, Wagner, Atkins, |Ayes:|Fuentes, Harkey, |
| |Dickinson, Beth Gaines, | |Blumenfield, Bradford, |
| |Huber, Huffman, Jones, | |Charles Calderon, Campos, |
| |Monning, Wieckowski | |Gatto, Hall, Hill, Lara, |
| | | |Mitchell, Norby, Solorio, |
| | | |Wagner |
| | | | |
|-----+--------------------------+-----+--------------------------|
| | |Nays:|Donnelly, Nielsen |
| | | | |
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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, and a public entity that
contributed to the creation of the 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.
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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 the 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: a) send copies of the
notice to any public entity that provided funds for the
acquisition of the property, or imposed conditions on a project
satisfied by the conservation easement; b) inform the public
entity that written comments may be submitted; and, c) notify
the person seeking to acquire the property, as specified.
5)Provides that the holder of the conservation easement or any
public entity that provided funds for the purchase of the
easement, or both, may 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
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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 to any holder of the conservation
easement or public entity noticed under 4) above to inform 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 a conservation easement is an owner
of property entitled to compensation and specifies the manner
by which compensation shall be determined.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, likely minor annual reimbursable costs for local
agencies seeking to acquire property meeting criteria specified
above 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.
In 1979, California statutorily created a "conservation
easement" to permit various government entities and non-profit
organizations to acquire and hold conservation 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 a conservation easement - one stick in the
bundle of property rights - while the original owner continued 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.
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However, 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 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.
This bill does not seek to stop public entities from using the
power of eminent domain to acquire property subject to
conservation easement or even to ensure that the conditions of
the easement remain; rather, this bill seeks 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. 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 105 days 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.
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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.
This bill is substantially the same as the enrolled version of
the author's SB 555 of 2009, which was vetoed by the prior
Governor. However, the prior Governor's veto message was
substantially the same as the arguments made by the opponents of
SB 555. Since that time, the author has reached out to those to
better explain the purpose of the bill, and those opponents now
agree that this is a fair and reasonable bill that balances the
goals of conservation and infrastructure development.
According to the author, this bill would establish "common sense"
procedures for condemning properties with conservation easements
in order to protect public investment in easements by ensuring
that holders of the conservation easement will not be excluded
from the condemnation process. The California Council of Land
Trusts (CCLT), argues that the existing process "for condemning
these properties suffers from a lack of communication between the
easement holder and the condemning agency" and thereby "creates
unnecessary challenges in the process." CCLT contends that, as
communities grow outward, land subject to conservation easements
is sometimes seen as an easy target because it appears to be
"empty" or represents the "path of least resistance." CCLT
believes that this bill, by providing more timely notice to all
interested parties, will create a more thoughtful process in
which the condemning agency will engage in dialogue with easement
holders and other entities that have a stake in the easement.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
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