BILL ANALYSIS �
SB 618
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Date of Hearing: June 29, 2011
ASSEMBLY COMMITTEE ON AGRICULTURE
Cathleen Galgiani, Chair
SB 618 (Wolk) - As Amended: June 23, 2011
SENATE VOTE : 39-0
SUBJECT : Local government: solar-use easement.
SUMMARY : This bill allows a city or county and a landowner to
concurrently rescind a Williamson Act (Act) contract on
marginally productive or physically impaired lands and enter
into a solar-use easement that restricts the use of land to
photovoltaic (PV) solar facilities. Specifically, this bill :
1)Makes legislative declarations and findings regarding the Act
and it's importance to preserving agricultural and open space
to the people of California
2)Makes legislative declarations and findings that California
will require 33% of electricity to come from renewable sources
by 2020 and that renewable energy, in which PV produced
electricity plays an important part, will benefit California
by job creation, improving local air quality and improve
energy independence, along with other benefits.
3)Makes legislative declarations and findings that encouraging
PV electricity production on marginally productive or
physically impaired land, by expediting the termination of Act
contracts without penalty, will protect the benefits of solar
production and provide economic incentive for new solar power
development.
4)Declares that it is the intent of the Legislature to provide
an additional, but not the exclusive, method of terminating an
Act contact to encourage the development of large scale solar
PV facilities on marginally productive or physically impaired
land.
5)Defines agriculture activities as all agriculture production
and agriculture related activities, excluding livestock
production. Allows for the periodic use of land for the
production and use of forage, as specified.
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6)Defines marginally productive as parcels not irrigated for
agricultural purposes for the previous six years, and
consisting predominantly of soil with significantly limited
agricultural activities due to chemical or physical
limitations, as specified.
7)Defines physically impaired land as land with severely adverse
soil conditions that are detrimental to continued agricultural
cultivation and production, as specified. Allows the
Secretary of the California Department of Food and Agriculture
(CDFA) to consult with the Secretary of the California Natural
Resources Agency (CNRA) and consider information from the
county agriculture commissioner where the land is located
8)Requires a designation of marginally productive or physically
impaired land to be based on substantial evidence and approved
by the Director (Director) of the Department of Conservation
(DOC) and allows the Director to consult with the Secretary of
CDFA and consider information from the county agriculture
commissioner where the land is located.
9)Defines city to mean any city or city and county.
10)Defines landowner to include a lessee or trustee, if the
lease or trust expires at a later date than the expiration of
the restriction of land use to PV solar facilities or any
extension of restriction.
11)Defines solar-use easement (solar easement) as any rights or
interests acquired by a city or county in perpetuity or a term
of years that restricts the use of land to a solar facility,
with the purpose to provide for the collection and
distribution of solar energy for electricity generation, as
specified.
12)Allows a city or county to enter into an agreement with a
landowner for a solar easement, as specified.
13)Requires the term of a solar use easement to be at least ten
years and specifies that the contract automatically renews
each year unless notice of nonrenewal is given by either
party.
14)Allows a city or county to require a solar easement to have
any conditions, covenants or restriction (CCR) needed to
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restrict the land use to solar facilities. Allows the CCR to
include, but not be limited to:
a) Mitigation measures on the solar easement land.
b) Mitigation measures beyond the solar easement land.
c) Bonds or other securities to fund, upon ending the solar
easement, the restoration of the easement land, as
specified.
d) Requires any CCR to be consistent with this chapter.
15)Requires for term easements that the CCRs require the
landowner to post bonds or other securities to fund, upon
ending the solar easement, the restoration of the easement
land, as specified.
16)Requires acceptance or approval from the local governing body
before a solar easement is in effect.
17)Prohibits a city or county, during the term of a solar
easement, from approving any land use that is inconsistent
with the easement, or issues building permits for structures
that would violate the easement.
18)Requires a city or county, during the term of a solar
easement, to pursue injunctions, by appropriate proceedings,
against construction or development on easement land that
would violate the easement and pursue a mandatory injunction
to remove any structure built in violation of the easement.
19)Provides that if a county or city fails to seek an injunction
or if the county or city should construct any structure or
development or conduct or permit any activity in violation of
the easement, a person or entity may, by appropriate
proceedings, seek an injunction.
20)Requires a solar easement to be officially recorded with the
county assessor, as specified.
21)Requires the parcel or parcels in a solar easement to be
assessed, considering the effect upon value of restrictions to
which the use of the land is subjected.
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22)Allows DOC to adopt regulation pursuant to solar easements.
23)Allows a solar easement to be ended on all or a portion of
the parcel by nonrenewal, termination, or reversion of the
land to its previous Act contract, as specified.
24)Requires parties who wish to not renew a solar easement on
all or part of the parcel, to file a written notice 90 days
prior to the annual renewal date of the easement.
25)Provides that unless written notice is served at least 90
days in advance of the renewal date, the Solar easement shall
be considered renewed.
26)Allows an owner who receives a nonrenewal notice from a city
or county, to make a written protest of the nonrenewal and
allows the city or county, prior to the renewal date, to
rescind the notice of nonrenewal.
27)Requires, upon nonrenewal, the solar easement to continue for
the balance of the term.
28)Requires the land be restored to its original condition by
the landowner if he or she initiates nonrenewal of a solar
easement or due to termination of the solar easement.
29)Allows landowners to petition the city or county to terminate
a solar easement, if all or a portion of the parcel no longer
is used for the purpose of the easement.
30)Requires, prior to any action by a city or county in the
termination of solar easement, the county assessor to
determine current fair market value of easement land being
terminated.
a) Requires the county assessor to certify to the city or
county the termination valuation of the easement land to
determine the termination fee.
b) Requires the county assessor to send a notice to the
landowner and DOC indicating the current fair market value,
advise the parties of their right to request all
information relative to the land valuation, and advise the
parties of the ability to request a formal review.
Requires confidential information to be protected, as
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specified.
31)Requires, prior to approval of a solar easement termination,
the city or county to determine and certify to the county
auditor the amount of the termination fee due to the county
treasure upon termination and requires the termination fee be
12.5% termination value of the property.
32)Allows the city or county, if it is in the public interest,
to waive payment or a portion of payment, or extend payment or
a portion of payment as specified, if all of the following
occur:
a) The termination is caused by an involuntary transfer or
change in use which the land is not suitable or can be used
for a greater economic return for the owner; and,
b) The Secretary of CNRA approves the waiver or extension
of time, as specified.
33)Requires the termination fees collected by the county
treasurer be transferred to the controller and deposited in
the General Fund (GF).
34)Declares the intent of the Legislature that the termination
fees do not constitute taxes, but are payments that provide a
private benefit, as specified.
35)Allows parties, upon mutual agreement, to rescind Act
contracts on marginally productive or physically impaired land
to simultaneously enter into a solar easement.
36)Specifies that ending an Act contract by entering into a
solar easement is an addition to, not a replacement of, other
methods of ending an Act contract.
37)Adds solar easements as an enforceable restriction that
effects land valuation, that assessors are required to
examine.
EXISTING LAW:
1)Creates the Act, also known as the California Land
Conservation Act of 1965, which authorizes cities and counties
to enter into agricultural land preservation contracts with
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landowners who agree to restrict the use of their land for a
minimum of 10 years in exchange for lower-assessed valuations
for property tax purposes. �Government Code Section (GOV)
51200-51207]
2)Allows a landowner or a county to not renew an Act contract.
The Act contract then runs out in nine years. After
nonrenewal, a county will increase the property's assessed
value to its market value by the end of the contract period
when the land use restrictions also end. �GOV section 51245]
3)Allows for a cancellation of an Act contract at the request of
the landowner. Cancellation immediately ends the contract and
allows the landowner to use the property for another specified
use. To cancel a contract, the county supervisors must find
that the cancellation is either consistent with the Act's
purposes or in the public interest. The landowner must pay a
cancellation fee equal to 12.5% of the property's
nonrestricted value. The revenues go to the state GF. �GOV
section 21250]
4)Allows for the rescission of an Act contract. Rescission
occurs when the county supervisors cancel an Act contract, but
the landowner simultaneously puts an agricultural conservation
easement on other land of equal or greater value. �GOV
section 51255]
FISCAL EFFECT : This bill has been keyed fiscal by Legislative
Counsel.
COMMENTS : The Act conserves agricultural and open space land by
allowing private property owners to sign voluntary contracts
with counties and cities, restricting their land to agriculture,
open space, and compatible uses. In return, county assessors
must lower the assessed value of the contracted lands to reflect
their use as agricultural or open space instead of the market
value. Making sure that private property owners use their Act
land appropriately is essential to maintaining the statute's
constitutional integrity. Approximately 16.6 million acres are
under Act contracts.
At least 33% of retail energy sales in California must come from
renewable energy resources by December 31, 2020. To meet this
goal, utility systems and private investors need locations to
build renewable energy facilities. The California Energy
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Commission is tracking 252 solar PV projects spread over 21
counties. Many of these solar PV sites are in counties that
have Act contracts with landowners of thousands of acres of
farms, ranches, and open space.
Although the Act recognizes the construction of electric
facilities as a compatible use, opinions differ over whether a
solar PV facility qualifies as a compatible use. To avoid
lawsuits, landowners and county officials prefer to terminate
their Act contracts before building solar PV facilities. Some
county supervisors have made the public interest findings and
cancelled Act contracts so that investors can build solar PV
facilities. Others want to find a different method to terminate
Act contracts before building solar PV facilities.
According to the author, this bill offers incentives to solar PV
developers who choose to develop on lands that are less suited
for agricultural use or have a lower habitat value. The bill
defines "marginally productive and physically impaired lands" to
be those lands which have significantly reduced agricultural
value due to chemical or physical limitations and are unusable
for agricultural.
Supporters state that this bill will provide a significant
alternative mechanism for Williamson Act lands, when designated
as marginally productive or physically impaired, that cannot
meet the principles of compatibility or the required findings
for contract cancellation. Furthermore, supporters state this
bill will accomplish the goal of ensuring that solar projects
are located appropriately without undermining the Act and will
ensure that solar projects are implemented in a manner that
makes sense and balances multiple interests.
The definition for physically impaired land includes allowing
the Secretary of CDFA to be the lead reviewer of the
designation. This conflicts with requiring the Director to
approve the designation of marginally productive land and
physically impaired land. The author's office stated that the
Director is the intended person to make these determinations.
The committee may wish to consider the following clarifying
amendment: on page 5, lines 15-18 strike "The Secretary of Food
and Agriculture may consult with the Secretary of Natural
Resources Agency and consider information from the agricultural
commissioner in the county where the land is located."
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The bill defines agriculture activities as production and
practices associated with farming as prescribed in current law.
As the definitions of marginally productive land and physically
impaired land in this bill only refer to agriculture production
or purposes, the committee may wish to consider a conforming
amendment as follows: On page 5, lines 1, after the word
"agriculture", strike the word "purposes" and insert
"activities".
This bill was heard in the Assembly Committee on Local
Government on June 22, 2011, where it passed out on a 9-0 vote.
RELATED LEGISLATION :
SB 2 X1 (Simitian) Chapter 1, Statutes of 2011, increased
California's renewables portfolio standard to require all retail
sellers of electricity and all publicly owned utilities to
procure at least 33% of electricity delivered to their retail
customers from renewable resources by 2020.
REGISTERED SUPPORT / OPPOSITION :
Support
California Farm Bureau Federation
California Public Utilities Commission
California Women for Agriculture
Defenders of Wildlife
Environmental Defense Fund
Maricopa Orchards, LLC
Natural Resources Defense Council
Planning and Conservation League
The Nature Conversancy
The Trust for Public Land
Union of Concerned Scientists
Opposition
None on file.
Analysis Prepared by : Victor Francovich / AGRI. / (916)
319-2084
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