Bill Text: CA AB94 | 2009-2010 | Regular Session | Chaptered
Bill Title: Natural Heritage Preservation Tax Credit Act of 2000.
Sponsorship: Partisan Bill (Democrat 2)
Status: (Passed) 2009-10-11 - Chaptered by Secretary of State - Chapter 220, Statutes of 2009. [AB94 Detail]
Download: California-2009-AB94-Chaptered.html
BILL NUMBER: AB 94 CHAPTERED
BILL TEXT
CHAPTER 220
FILED WITH SECRETARY OF STATE OCTOBER 11, 2009
APPROVED BY GOVERNOR OCTOBER 11, 2009
PASSED THE SENATE SEPTEMBER 3, 2009
PASSED THE ASSEMBLY SEPTEMBER 9, 2009
AMENDED IN SENATE SEPTEMBER 1, 2009
AMENDED IN SENATE JULY 13, 2009
AMENDED IN ASSEMBLY APRIL 20, 2009
INTRODUCED BY Assembly Member Evans
(Coauthor: Assembly Member Monning)
JANUARY 6, 2009
An act to amend Section 7260 of the Government Code, to amend
Sections 37002, 37022, 37034, and 37035 of the Public Resources Code,
and to amend Sections 17053.30 and 23630 of the Revenue and Taxation
Code, relating to conservation.
LEGISLATIVE COUNSEL'S DIGEST
AB 94, Evans. Natural Heritage Preservation Tax Credit Act of
2000.
(1) Under the Natural Heritage Preservation Tax Credit Act of
2000, property may be contributed to departments, as defined, any
local government, or any nonprofit organization designated by a local
government or department, based on specified criteria, in order to
provide for the protection of wildlife habitat, open space, and
agricultural lands. The act defines "donee" as a department within
the Natural Resources Agency to which a donor has applied to donate
property, a local government requesting approval of a donation of
property to it, or a designated nonprofit organization.
This bill would expand the definition of "donee" to include a
local government that has submitted an application directly to the
Wildlife Conservation Board. The bill would make related changes.
(2) The act limits the total amount of tax credits to $100,000,000
and prohibits tax credits from being awarded after the 2007-08
fiscal year without further statutory authorization.
This bill, instead, would prohibit tax credits from being awarded
after the 2014-15 fiscal year without further statutory
authorization, and would delete the monetary limit on the award of
tax credits pursuant to the act.
(3) Existing law provides that, whenever a program or project to
be undertaken by a public entity will result in the displacement of a
person, the displaced person, as defined, is entitled to payment for
actual moving and related expenses as the public entity determines
to be reasonable and necessary.
This bill would exclude as a displaced person, for those purposes,
a person displaced by willingly donating or selling his or her
property for the purposes of protecting fish and wildlife habitat,
providing recreation areas, or preserving cultural or agricultural
resources and open space, or any person who occupies on a rental
basis the property donated or sold. The bill would provide that this
exclusion does not apply when a sale is in response to an eminent
domain proceeding.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7260 of the Government Code is amended to read:
7260. As used in this chapter:
(a) "Public entity" includes the state, the Regents of the
University of California, a county, city, city and county, district,
public authority, public agency, and any other political subdivision
or public corporation in the state or any entity acting on behalf of
these agencies when acquiring real property, or any interest therein,
in any city or county for public use, and any person who has the
authority to acquire property by eminent domain under state law.
(b) "Person" means any individual, partnership, corporation,
limited liability company, or association.
(c) (1) "Displaced person" means both of the following:
(A) Any person who moves from real property, or who moves his or
her personal property from real property, either:
(i) As a direct result of a written notice of intent to acquire,
or the acquisition of, the real property, in whole or in part, for a
program or project undertaken by a public entity or by any person
having an agreement with, or acting on behalf of, a public entity.
(ii) As a direct result of the rehabilitation, demolition, or
other displacing activity, as the public entity may prescribe under a
program or project undertaken by a public entity, of real property
on which the person is a residential tenant or conducts a business or
farm operation, if the public entity determines that the
displacement is permanent. For purposes of this subparagraph,
"residential tenant" includes any occupant of a residential hotel
unit, as defined in subdivision (b) of Section 50669 of the Health
and Safety Code, and any occupant of employee housing, as defined in
Section 17008 of the Health and Safety Code, but does not include any
person who has been determined to be in unlawful occupancy of the
displacement dwelling.
(B) Solely for the purposes of Sections 7261 and 7262, any person
who moves from real property, or moves his or her personal property
from real property, either:
(i) As a direct result of a written notice of intent to acquire,
or the acquisition of, other real property, in whole or in part, on
which the person conducts a business or farm operation for a program
or project undertaken by a public entity.
(ii) As a direct result of the rehabilitation, demolition, or
other displacing activity as the public entity may prescribe under a
program or project undertaken by a public entity, of other real
property on which the person conducts a business or farm operation,
in any case in which the public entity determines that the
displacement is permanent.
(2) This subdivision shall be construed so that persons displaced
as a result of public action receive relocation benefits in cases
where they are displaced as a result of an owner participation
agreement or an acquisition carried out by a private person for, or
in connection with, a public use where the public entity is otherwise
empowered to acquire the property to carry out the public use.
(3) Except for persons or families of low and moderate income, as
defined in Section 50093 of the Health and Safety Code, who are
occupants of housing that was made available to them on a permanent
basis by a public agency and who are required to move from the
housing, a "displaced person" shall not include any of the following:
(A) Any person who has been determined to be in unlawful occupancy
of the displacement dwellings.
(B) Any person whose right of possession at the time of moving
arose after the date of the public entity's acquisition of the real
property.
(C) Any person who has occupied the real property for the purpose
of obtaining assistance under this chapter.
(D) In any case in which the public entity acquires property for a
program or project (other than a person who was an occupant of the
property at the time it was acquired), any person who occupies the
property for a period subject to termination when the property is
needed for the program or project.
(E) Any person who donates or willingly sells his or her property
for the purposes of protecting fish and wildlife habitat, providing
recreational areas, or preserving cultural or agricultural resources
and open space, or any person who occupies that property on a rental
basis. This subparagraph does not apply when a sale is in response to
an eminent domain proceeding.
(d) "Business" means any lawful activity, except a farm operation,
conducted for any of the following:
(1) Primarily for the purchase, sale, lease, or rental of personal
and real property, and for the manufacture, processing, or marketing
of products, commodities, or any other personal property.
(2) Primarily for the sale of services to the public.
(3) Primarily by a nonprofit organization.
(4) Solely for the purpose of Section 7262 for assisting in the
purchase, sale, resale, manufacture, processing, or marketing of
products, commodities, personal property, or services by the erection
and maintenance of an outdoor advertising display, whether or not
the display is located on the premises on which any of the above
activities are conducted.
(e) "Farm operation" means any activity conducted solely or
primarily for the production of one or more agricultural products or
commodities, including timber, for sale or home use, and customarily
producing these products or commodities in sufficient quantity to be
capable of contributing materially to the operator's support.
(f) "Affected property" means any real property that actually
declines in fair market value because of acquisition by a public
entity for public use of other real property and a change in the use
of the real property acquired by the public entity.
(g) "Public use" means a use for which real property may be
acquired by eminent domain.
(h) "Mortgage" means classes of liens that are commonly given to
secure advances on, or the unpaid purchase price of, real property,
together with the credit instruments, if any, secured thereby.
(i) "Comparable replacement dwelling" means any dwelling that is
all of the following:
(1) Decent, safe, and sanitary.
(2) Adequate in size to accommodate the occupants.
(3) In the case of a displaced person who is a renter, within the
financial means of the displaced person. A comparable replacement
dwelling is within the financial means of a displaced person if the
monthly rental cost of the dwelling, including estimated average
monthly utility costs, minus any replacement housing payment
available to the person, does not exceed 30 percent of the person's
average monthly income, unless the displaced person meets one or more
of the following conditions, in which case the payment of the
monthly rental cost of the comparable replacement dwelling, including
estimated average monthly utility costs, minus any replacement
housing payment available to the person, shall not exceed 25 percent
of the person's average monthly income:
(A) Prior to January 1, 1998, the displaced person received a
notice to vacate from a public entity, or from a person having an
agreement with a public entity.
(B) The displaced person resides on property that was acquired by
a public entity, or by a person having an agreement with a public
entity, prior to January 1, 1998.
(C) Prior to January 1, 1998, a public entity, or a person having
an agreement with a public entity, initiated negotiations to acquire
the property on which the displaced person resides.
(D) Prior to January 1, 1998, a public entity, or a person having
an agreement with a public entity, entered into an agreement to
acquire the property on which the displaced person resides.
(E) Prior to January 1, 1998, a public entity, or a person having
an agreement with a public entity, gave written notice of intent to
acquire the property on which the displaced person resides.
(F) The displaced person is covered by, or resides in an area or
project covered by, a final relocation plan that was adopted by the
legislative body prior to January 1, 1998, pursuant to this chapter
and the regulations adopted pursuant to this chapter.
(G) The displaced person is covered by, or resides in an area or
project covered by, a proposed relocation plan that was required to
have been submitted prior to January 1, 1998, to the Department of
Housing and Community Development or to a local relocation committee,
or for which notice was required to have been provided to occupants
of the property prior to January 1, 1998, pursuant to this chapter
and the regulations adopted pursuant to this chapter.
(H) The displaced person is covered by, or resides in an area or
project covered by, a proposed relocation plan that was submitted
prior to January 1, 1998, to the Department of Housing and Community
Development or to a local relocation committee, or for which notice
was provided to the public or to occupants of the property prior to
January 1, 1998, pursuant to this chapter and the regulations adopted
pursuant to this chapter, and the person is eventually displaced by
the project covered in the proposed relocation plan.
(I) The displaced person resides on property for which a contract
for acquisition, rehabilitation, demolition, construction, or other
displacing activity was entered into by a public entity, or by a
person having an agreement with a public entity, prior to January 1,
1998.
(J) The displaced person resides on property where an owner
participation agreement, or other agreement between a public entity
and a private party that will result in the acquisition,
rehabilitation, demolition, or development of the property or other
displacement, was entered into prior to January 1, 1998, and the
displaced person resides in the property at the time of the
agreement, provides information to the public entity, or person
having an agreement with the public entity, showing that he or she
did reside in the property at the time of the agreement and is
eventually displaced by the project covered in the agreement.
(4) Comparable with respect to the number of rooms, habitable
space, and type and quality of construction. Comparability under this
paragraph shall not require strict adherence to a detailed,
feature-by-feature comparison. While a comparable replacement
dwelling need not possess every feature of the displacement dwelling,
the principal features shall be present.
(5) In an area not subject to unreasonable adverse environmental
conditions.
(6) In a location generally not less desirable than the location
of the displaced person's dwelling with respect to public utilities,
facilities, services, and the displaced person's place of employment.
(j) "Displacing agency" means any public entity or person carrying
out a program or project which causes a person to be a displaced
person for a public project.
(k) "Appraisal" means a written statement independently and
impartially prepared by a qualified appraiser setting forth an
opinion of defined value of an adequately described property as of a
specific date, supported by the presentation and analysis of relevant
market information.
( l ) "Small business" means a business as defined in
Part 24 of Title 49 of the Code of Federal Regulations.
(m) "Lead agency" means the Department of Housing and Community
Development.
SEC. 2. Section 37002 of the Public Resources Code is amended to
read:
37002. As used in this division, the following terms have the
following meanings:
(a) "Approval" or "approval for acceptance" means the board's
approval of the granting of a tax credit for a donation of property
pursuant to the program.
(b) "Board" means the Wildlife Conservation Board created pursuant
to Article 2 (commencing with Section 1320) of Chapter 4 of Division
2 of the Fish and Game Code.
(c) "Conservation easement" means a conservation easement, as
defined by Section 815.1 of the Civil Code, that is contributed in
perpetuity.
(d) "Department" means any entity created by statute within the
Natural Resources Agency and authorized to hold title to land, or the
Natural Resources Agency.
(e) (1) "Designated nonprofit organization" means a nonprofit
organization qualified under Section 501(c)(3) of Title 26 of the
United States Code that has as a principal purpose the conservation
of land and water resources and that is designated by a local
government or a department to accept property pursuant to this
division in lieu of the local government or a department. In order to
be eligible to receive a donation of property pursuant to this
division, a nonprofit organization shall have experience in land
conservation.
(2) If bond funds are used pursuant to Chapter 7 (commencing with
Section 37030), the designated nonprofit organization shall also meet
the eligibility requirements specified in the relevant provision of
the applicable bond act, for a nonprofit organization.
(f) "Donee" means any of the following:
(1) A department to which a donor has applied to donate property.
(2) A local government that has submitted a joint application with
a department requesting approval of a donation of property to that
local government.
(3) A local government that has submitted an application directly
to the board.
(4) A designated nonprofit organization.
(g) "Donor" means a property owner that donates, or submits an
application to donate, property pursuant to the program.
(h) (1) "Local government" means any city, county, city and
county, or any district, as defined in Section 5902 or in Division 26
(commencing with Section 35100), or any joint powers authority made
up of one or more of those entities or those entities and
departments.
(2) If bond funds are used pursuant to Chapter 7 (commencing with
Section 37030), "local government" also includes any other local
governmental entity eligible to receive bond funds pursuant to the
relevant provision of the applicable bond act.
(i) "Program" means the Natural Heritage Preservation Tax Credit
Program authorized by this division.
(j) "Property" means any real property, and any perpetual interest
therein, including land, conservation easements, and land containing
water rights, as well as water rights.
(k) "Secretary" means the Secretary of the Natural Resources
Agency.
SEC. 3. Section 37022 of the Public Resources Code is amended to
read:
37022. (a) Tax credits may be awarded pursuant to this division
only if the amount of all lost revenue resulting from the award of
tax credits is reimbursed by transfer to the General Fund of moneys
that are not from the General Fund. Tax Credits shall not be awarded
subsequent to the 2014-15 fiscal year without further statutory
authorization.
(b) For purposes of this section, "moneys that are not from the
General Fund" means any of the following:
(1) State bond funds as described in Section 37032.
(2) State funds available for the purposes of this division, other
than funds specified in Section 37014.
(3) Court settlements.
(4) Private or public donations.
(5) Local government funds of any type.
(6) Federal funds available for the purposes of this division.
SEC. 4. Section 37034 of the Public Resources Code is amended to
read:
37034. (a) (1) If a department determines that property is
available for acquisition by donation, and that the acquisition of
the property would comply with the requirements of an applicable bond
provision specified in subdivision (c) of Section 37032 and any
applicable guidelines developed for that bond provision by the
administering agency, and the department believes the acquisition of
the property would comply with the requirements of this division, the
department may request the prospective donor of the property to
submit an application pursuant to Section 37010. If the prospective
donor agrees to submit that application, the department may apply for
approval of the donation pursuant to the requirements of this
division.
(2) If a local government determines that property is available
for acquisition by donation, and that the acquisition of the property
would comply with the requirements of an applicable bond provision
specified in subdivision (c) of Section 37032 and any applicable
guidelines developed for that bond provision by the administering
agency, and the local government believes that the acquisition of the
property would comply with the requirements of this division, the
local government may request the department that allocated to it the
relevant bond funds to determine whether it agrees with the local
government's determinations and beliefs made pursuant to this
paragraph. If the department agrees with the local government and
gives its approval for the acquisition with bond funds that it has
allocated to the local government, the local government may request
the prospective donor of the property to submit an application
pursuant to Section 37010. If the prospective donor agrees to submit
the application, the local government may apply for approval of the
donation pursuant to the requirements of this division.
(3) In addition to the requirements of Section 37011, the
application shall include, and shall not be accepted if it does not
include, a signed authorization by the donor, in a form and manner
mutually agreeable to the board and the Franchise Tax Board, for the
disclosure of the information necessary to make the payment as
required by subdivision (b). For purposes of subdivision (b) of
Section 1798.24 of the Civil Code, the signed authorization shall be
the donor's voluntary consent to the disclosure of the information.
(b) (1) If the board gives approval, the department or local
government may acquire the property pursuant to this division.
Through the process outlined in this section, the department shall
reimburse the General Fund for the tax credit claimed pursuant to
this chapter under Section 17053.30 or 23630 of the Revenue and
Taxation Code by transferring bond funds identified under subdivision
(c) of Section 37032 to the Natural Heritage Preservation Tax Credit
Reimbursement Account, on the basis of information provided to the
department under Section 37040 regarding credit claimed for a
qualified contribution under Section 17053.30 or 23630 of the Revenue
and Taxation Code in that tax year.
(2) If a local government applies directly to the board for
acceptance of a qualified donation, the board may provide conditional
approval for the local government to acquire the property pursuant
to this division. Through the process outlined in this section, the
local government shall reimburse the General Fund for the tax credit
claimed pursuant to this chapter under Section 17053.30 or 23630 of
the Revenue and Taxation Code by transferring funds in the full
amount of the approved tax credit to the board for deposit into the
Natural Heritage Preservation Tax Credit Reimbursement Account.
(3) (A) Upon approval by the board, and prior to the time the
department, local government, or designated nonprofit organization
receives the property, the department shall encumber bond funds
identified under subdivision (c) of Section 37032 in an amount
necessary to pay for the tax credit as provided in Section 17053.30
or 23630, as applicable, of the Revenue and Taxation Code.
(B) If a local government applies directly to the board for
acceptance of a qualified donation, and the board provides
conditional approval of the qualified donation, the local government
shall have 60 days to transfer to the board the full amount of funds
necessary to reimburse the General Fund. Upon receipt of the funds
necessary to reimburse the General Fund, the board shall provide the
donor and the local government with a notice of final approval of the
tax credit. A tax credit is not approved until such time as the
donor and local government receive a final notification from the
board that sufficient funds have been received to reimburse the
General Fund for the loss of revenue associated with the tax credit.
(C) The acquisition agreement or any other document that clearly
delineates the commitment pursuant to this division shall be the only
documentation required for the department to encumber the bond funds
as required by this paragraph.
(D) Except as prohibited by the relevant bond act, notwithstanding
Section 13340 of the Government Code or any other provision of law,
the encumbrance shall be available without regard to fiscal years to
allow payments to the Natural Heritage Preservation Tax Credit
Reimbursement Account for the tax credit due the donor of the
property under Section 17053.30 or 23630, as applicable, of the
Revenue and Taxation Code.
(4) The Franchise Tax Board shall provide the board information
pursuant to subdivision (a) of Section 19560 of the Revenue and
Taxation Code on tax credits claimed. The information shall include
the tax year for which the credit was claimed. The board shall
provide the information required by Section 37040 to the relevant
department. Upon notification that a qualified tax credit has been
claimed, the department, pursuant to paragraph (1), shall transfer
bond funds in the amount of the tax credit for that tax year to the
Natural Heritage Preservation Tax Credit Reimbursement Account within
60 days of receipt of the notification. The department shall notify
the board of this transfer.
(5) The board shall forward the information it receives pursuant
to paragraph (4) to the Controller and the Department of Finance,
which shall use the information for the purpose of attributing the
budgetary impact of the credit and bond fund transfer to the
appropriate tax and fiscal year.
SEC. 5. Section 37035 of the Public Resources Code is amended to
read:
37035. (a) (1) If a department determines that a designated
nonprofit organization, in lieu of the department, should accept
property that the department applies to acquire pursuant to paragraph
(1) of subdivision (a) of Section 37034, and determines that the
acceptance by the designated nonprofit organization would comply with
the purpose of the applicable bond provision specified in
subdivision (c) of Section 37032, the department may, upon that
determination and upon making the determinations and having the
belief required by paragraph (1) of subdivision (a) of Section 37034,
apply to acquire the property for that designated nonprofit
organization pursuant to this division. The department shall not make
that application until the prospective donor agrees to submit an
application pursuant to Section 37010 and paragraph (3) of
subdivision (a) of Section 37034 and the designated nonprofit
organization agrees to accept the property if it is acquired pursuant
to this division.
(2) If a local government determines that a designated nonprofit
organization, in lieu of the local government, should accept property
that the local government applies to acquire pursuant to paragraph
(2) of subdivision (a) of Section 37034, and determines that the
acceptance by the designated nonprofit organization would comply with
the purpose of the applicable bond provision specified in
subdivision (c) of Section 37032, the local government may, upon that
determination and making the determinations and having the belief
required by paragraph (2) of subdivision (a) of Section 37034,
request the department that allocated to it the relevant bond funds
to determine whether it agrees with the local government's
determinations made pursuant to this paragraph. If the department
agrees with the local government, gives its approval for the
designated nonprofit organization's acceptance of the property, and
gives its approval pursuant to paragraph (2) of subdivision (a) of
Section 37034, the local government may apply to acquire the property
for that designated nonprofit organization pursuant to this
division. The local government shall not make that application until
the prospective donor agrees to submit an application pursuant to
Section 37010 and paragraph (3) of subdivision (a) of Section 37034
and the designated nonprofit organization agrees to accept the
property if it is acquired pursuant to this division.
(b) If a department or local government applies for a designated
nonprofit organization to acquire property, pursuant to subdivision
(a), the department and donor, and the local government, if
applicable, shall comply with all requirements of this division that
apply to the department and donor, and to the local government, if
applicable, when the department or local government otherwise applies
to acquire property pursuant to this division.
(c) If a local government applies for a designated nonprofit
organization to acquire and accept donated property, the local
government shall comply with all requirements of this division that
apply to the local government transferring funds to the board
necessary to reimburse the General Fund.
SEC. 6. Section 17053.30 of the Revenue and Taxation Code is
amended to read:
17053.30. (a) There shall be allowed as a credit against the "net
tax," as defined in Section 17039, an amount equal to 55 percent of
the fair market value of any qualified contribution made on or after
January 1, 2000, and not later than June 30, 2008, and on or after
January 1, 2010, and not later than June 30, 2015, by the taxpayer
during the taxable year to the state, any local government, or any
designated nonprofit organization, pursuant to Division 28
(commencing with Section 37000) of the Public Resources Code.
(b) For purposes of this section, "qualified contribution" means a
contribution of property, as defined in Section 37002 of the Public
Resources Code, that has been approved for acceptance by the Wildlife
Conservation Board pursuant to Division 28 (commencing with Section
37000) of the Public Resources Code.
(c) In the case of any passthrough entity, the fair market value
of any qualified contribution approved for acceptance under Division
28 (commencing with Section 37000) of the Public Resources Code shall
be passed through to the partners or shareholders of the passthrough
entity in accordance with their interest in the passthrough entity
as of the date of the qualified contribution. For purposes of this
subdivision, the term "passthrough entity" means any partnership, "S"
corporation, or limited liability company treated as a partnership.
(d) If the credit allowed by this section exceeds the "net tax,"
the excess may be carried over to reduce the "net tax" in the
following year, and the succeeding seven years if necessary, until
the credit is exhausted.
(e) This credit shall be in lieu of any other credit or deduction
which the taxpayer may otherwise claim pursuant to this part with
respect to the property or any interest therein
that is contributed.
SEC. 7. Section 23630 of the Revenue and Taxation Code is amended
to read:
23630. (a) There shall be allowed as a credit against the "tax,"
as defined in Section 23036, an amount equal to 55 percent of the
fair market value of any qualified contribution made on or after
January 1, 2000, and not later than June 30, 2008, and on or after
January 1, 2010, and not later than June 30, 2015, by the taxpayer
during the taxable year to the state, any local government, or any
designated nonprofit organization, pursuant to Division 28
(commencing with Section 37000) of the Public Resources Code.
(b) For purposes of this section, "qualified contribution" means a
contribution of property, as defined in Section 37002 of the Public
Resources Code, that has been approved for acceptance by the Wildlife
Conservation Board pursuant to Division 28 (commencing with Section
37000) of the Public Resources Code.
(c) In the case of any passthrough entity, the fair market value
of any qualified contribution approved for acceptance under Division
28 (commencing with Section 37000) of the Public Resources Code shall
be passed through to the partners or shareholders of the passthrough
entity in accordance with their interest in the passthrough entity
as of the date of the qualified contribution. For purposes of this
subdivision, the term "passthrough entity" means any partnership or
"S" corporation.
(d) If the credit allowed by this section exceeds the "tax," the
excess may be carried over to reduce the "tax" in the following year,
and the succeeding seven years if necessary, until the credit is
exhausted.
(e) This credit shall be in lieu of any other credit or deduction
that the taxpayer may otherwise claim pursuant to this part with
respect to the property or any interest therein that is contributed.
