BILL NUMBER: SB 436 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 24, 2011
INTRODUCED BY Senator Kehoe
FEBRUARY 16, 2011
An act to add Section 65966 to amend
Section 65965 of the Government Code, relating to land use.
LEGISLATIVE COUNSEL'S DIGEST
SB 436, as amended, Kehoe. Land use: mitigation lands: nonprofit
organizations.
The Planning and Zoning Law authorizes a state or local public
agency, if the agency requires a property owner to transfer to the
agency an interest in real property to mitigate an adverse impact
upon natural resources caused by permitting the development of a
project or facility, to authorize a nonprofit organization to hold
title to and manage that interest in real property, provided that the
nonprofit organization meets specified requirements.
This bill would authorize a state or local public agency to
provide funds to a nonprofit organization to acquire land or
easements that satisfy the agency's mitigation obligations, including
funds that have been set aside for the long-term management of any
lands or easements conveyed to a nonprofit organization if the
nonprofit organization meets certain requirements. The bill would
also state the findings and declarations of the Legislature
with respect to the preservation of natural resources through such
mitigation, and would state that it is in the
intent of the Legislature to enact legislation best
interest of the public to allow state and local public agencies
and nonprofit organizations to utilize the tools and strategies they
need for improving the effectiveness, cost-efficiency
cost efficiency , and durability of mitigation
for California's natural resources.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 65966 is added to the
Government Code, to read:
65966. (a) The Legislature finds and declares all of the
SECTION 1. The Legislature finds and declares all
of the following:
(1)
(a) State and local laws protect a variety of natural
resources, and also require permits to be issued for the development
of certain projects or facilities.
(2)
(b) In furtherance of these laws, state or local public
agencies may require a property owner to transfer an interest in
real property to mitigate any adverse impact upon natural resources
caused by permitting the development of a project or facility.
(3)
(c) Funds may be simultaneously set aside for the
long-term management of the property transferred for mitigation
purposes.
(4)
(d) Lands and real property interests transferred to
achieve the mitigation may be held by nonprofit organizations.
(5)
(e) Many state and local agencies work with nonprofit
organizations in valuable and cost effective public-private
partnerships to identify properties that meet the mitigation
requirements and to hold and provide long-term management of the real
property interests.
(6)
(f) There are tools and strategies available for
improving the effectiveness, cost efficiency, and durability of
mitigation for California's natural resources.
(g) Identifying mitigation needs on a regional basis may expedite
the planning and mitigation processes, as well as result ultimately
in consolidated mitigation areas that can be managed more
cost-effectively.
(7)
(h) It is in the interest of the public, project
proponents, and local communities to ensure that the public benefits
of mitigation are achieved.
(b) It is the intent of the Legislature to enact legislation that
will
(i) It is in the best interest of the
public to allow state and local public agencies and nonprofit
organizations to utilize the tools and strategies they need for
improving the effectiveness, cost-efficiency
cost efficiency , and durability of mitigation for California's
natural resources.
SEC. 2. Section 65965 of the Government
Code is amended to read:
65965. (a) For the purposes of this section, the following
definitions apply:
(1) "Direct protection" means the protection and preservation of
natural lands or resources, including, but not limited to,
agricultural lands, wildlife habitat, wetlands, endangered species
habitat, open-space areas, or outdoor recreational areas.
(2) "Stewardship" encompasses the range of activities involved in
controlling, monitoring, and managing for conservation purposes a
property, or a conservation or open-space easement, as defined by the
terms of the easement, and its attendant resources.
(b) Notwithstanding any other provision of law to the contrary, if
a state or local public agency requires a property owner to transfer
to the agency an interest in real property to mitigate any adverse
impact upon natural resources caused by permitting the development of
a project or facility, the state or local public agency may
authorize a nonprofit organization to hold title to and manage that
interest in real property, provided that the nonprofit organization
is all of the following:
(1) Exempt from taxation as an organization described in Section
501(c)(3) of the Internal Revenue Code, and qualified to do business
in the state.
(2) A "qualified organization" as defined in Section 170(h)(3) of
the Internal Revenue Code.
(3) An organization that has as its principal purpose and activity
the direct protection or stewardship of natural land or resources,
or cultural or historic resources, including, but not limited to,
agricultural lands, wildlife habitat, wetlands, endangered species
habitat, open-space areas, and outdoor recreational areas.
(c) If a state or local public agency, in the development of its
own project, is required to transfer protect
an interest in real property to mitigate an adverse impact upon
natural resources, the agency may transfer the interest to
a nonprofit organization that meets the requirements set forth in
paragraphs (1) to (3), inclusive, of subdivision (b).
do either of the following:
(1) Transfer the interest to a nonprofit organization that meets
the requirements set forth in subdivision (b).
(2) Provide funds to a nonprofit organization to acquire land or
easements that satisfy the agency's mitigation obligations.
(d) Funds set aside for the long-term management of lands or
easements conveyed to a nonprofit organization pursuant to
subdivisions (b) and (c) may also be conveyed to the nonprofit
organization. The nonprofit organization shall hold, manage, invest,
and disburse the funds in furtherance of managing and stewarding the
land or easement for which the funds were set aside.
(d)
(e) The recorded instrument that places title with a
nonprofit organization pursuant to subdivision (b) shall include, at
a minimum, a provision that if the state or local public agency that
authorized the nonprofit organization to hold the title, or its
successor agency, determines that the interest in real property that
is held by the nonprofit organization is not being held, monitored,
or managed for conservation purposes in the manner specified in that
instrument or in the mitigation agreement between the state or local
public agency and the nonprofit organization, the interest in real
property shall revert to the state or that local public agency, or to
another public agency or nonprofit organization qualified pursuant
to subdivision (b), approved by the state or local public agency.
(e)
(f) (1) A state or local public
agency shall exercise due diligence in reviewing the qualifications
of a nonprofit organization to effectively manage and steward natural
land or resources , as well as the accompanying funds .
The state or local public agency may adopt guidelines to assist the
agency in that review process or it may utilize guidelines or
standards established by a qualified entity .
(2) The state or local public agency shall determine that the
holder of accompanying funds meets all of the following requirements:
(A) The holder has the capacity to effectively manage the
mitigation funds.
(B) The holder has the capacity to achieve reasonable rates of
return on investment of those funds similar to those of other prudent
investors over the life of the agreement.
(C) The holder utilizes generally accepted accounting practices,
and will be able to ensure that funds are accounted for, and tied to,
a specific property or project.
(D) The holder has an adopted investment policy that is consistent
with the Uniform Management of Institutional Funds Act (Part 7
(commencing with Section 18501) of Division 9 of the Probate Code)
with regard to endowment funds and that is consistent with Sections
18505 and 18506 of the Probate Code with regard to nonendowment
funds.
(g) The state or local public agency may contract with or
designate an independent third party to do any of the following:
(1) Review the qualifications of a nonprofit organization to
effectively manage and steward natural land or resources.
(2) Review the qualifications of a nonprofit organization to hold
and manage the funds set aside for long-term management associated
with the property.
(3) Determine whether the holder of the funds meets the
requirements set forth in paragraph (2) of subdivision (f).
(4) Review reports or other performance indicators to evaluate the
management of lands, resources, or funds.
(h) If a state or local agency authorizes nonprofit organizations
to hold lands or natural resources created for mitigation purposes,
the state or local agency may require an administrative endowment
from the project proponent for costs associated with reviewing
qualifications, approving holders, and regular oversight of
compliance and performance.
(i) This section shall not apply retroactively to endowment funds
held by the state in the Pooled Money Investment Account as of
January 1, 2012.
(j) A state or local agency may identify priority areas for
mitigation for the purposes of consolidating mitigation areas,
improving conservation outcomes, and improving long-term management
efficiencies. The agency may use information from other state or
local agencies or other sources to identify priority areas.
Identified priority areas may be areas that currently have no
protection or would expand upon existing protected areas.
(k) A property that has been previously protected for conservation
purposes, including the placement of a conservation easement on the
property, may not be used for mitigation purposes.
(l) An existing conservation program of a state agency or
department may receive and expend funds to meet a specified
mitigation purpose, if all costs associated with the mitigation
transaction are fully paid by the project proponent. Qualified
programs are limited to the Wildlife Conservation Board, Department
of Parks and Recreation, Department of Conservation, and any state
conservancy.
(m) This section is not intended to interfere with or prevent the
existing authority of an agency or department to carry out its
programs, projects, or responsibilities to identify, review, approve,
deny, or implement any mitigation requirements, and nothing in this
section shall be construed as a limitation on mitigation requirements
for the project, or a limitation on compliance with requirements
under this division or any other provision of law.