Bill Text: CA SB618 | 2011-2012 | Regular Session | Chaptered
Bill Title: Local government: solar-use easement.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Passed) 2011-10-08 - Chaptered by Secretary of State. Chapter 596, Statutes of 2011. [SB618 Detail]
Download: California-2011-SB618-Chaptered.html
BILL NUMBER: SB 618 CHAPTERED
BILL TEXT
CHAPTER 596
FILED WITH SECRETARY OF STATE OCTOBER 8, 2011
APPROVED BY GOVERNOR OCTOBER 8, 2011
PASSED THE SENATE SEPTEMBER 10, 2011
PASSED THE ASSEMBLY SEPTEMBER 9, 2011
AMENDED IN ASSEMBLY SEPTEMBER 8, 2011
AMENDED IN ASSEMBLY SEPTEMBER 2, 2011
AMENDED IN ASSEMBLY AUGUST 30, 2011
AMENDED IN ASSEMBLY JULY 6, 2011
AMENDED IN ASSEMBLY JUNE 23, 2011
AMENDED IN SENATE MAY 11, 2011
AMENDED IN SENATE MAY 3, 2011
AMENDED IN SENATE APRIL 25, 2011
INTRODUCED BY Senator Wolk
(Principal coauthor: Assembly Member V. Manuel Pérez)
(Coauthors: Assembly Members Alejo and Galgiani)
FEBRUARY 18, 2011
An act to amend Sections 2805, 2835, 3511, 4700, 5050, and 5515 of
the Fish and Game Code, to add Section 51255.1 to, and to add
Chapter 6.9 (commencing with Section 51190) to Part 1 of Division 1
of Title 5 of, the Government Code, and to amend Section 402.1 of the
Revenue and Taxation Code, relating to local government.
LEGISLATIVE COUNSEL'S DIGEST
SB 618, Wolk. Local government: solar-use easement.
(1) Existing law, the Williamson Act, authorizes a city or county
to enter into 10-year contracts with owners of land devoted to
agricultural use, whereby the owners agree to continue using the
property for that purpose, and the city or county agrees to value the
land accordingly for purposes of property taxation. Existing law
authorizes the parties to a Williamson Act contract to mutually agree
to rescind a contract under the act in order to simultaneously enter
into an open-space easement for a certain period of years.
This bill would authorize the parties to a Williamson Act
contract, after approval by the Department of Conservation, in
consultation with the Department of Food and Agriculture, to mutually
agree to rescind the contract in order to simultaneously enter into
a solar-use easement that would require that the land be used for
solar photovoltaic facilities for a term no less than 20 years,
except as specified. The bill would require the city or county to
charge the property owner a rescission fee based upon the fair market
value of the property at the time of the rescission, as specified.
This bill would require a city or county to include certain, and
authorizes a city or county to include other, restrictions,
conditions, or covenants in the deed or instrument granting a
solar-use easement. This bill would provide that a solar-use easement
would be automatically renewed annually, unless either party filed a
notice of nonrenewal. This bill would provide that a solar-use
easement may only be extinguished on all or a portion of the parcel
by nonrenewal, termination, or by returning the land to its previous
contract under the Williamson Act. This bill would require that if
the landowner extinguishes the contract either by filing a notice of
nonrenewal or by terminating the solar-use easement, the landowner
shall restore the property to the conditions that existed before the
easement by the time the easement terminates. This bill would
authorize a landowner to terminate a solar-use easement by complying
with certain procedures, and paying a termination fee based upon the
termination value of the property, as determined by the county
assessor. This bill would provide that specified parties may bring an
action to enforce the easement if it is violated.
(2) Existing law requires the county assessor to consider, when
valuing real property for property taxation purposes, the effect of
any enforceable restrictions to which the use of the land may be
subjected. Under existing law these restrictions include, but are not
limited to, zoning, recorded contracts with governmental agencies,
and various other restrictions imposed by governments.
This bill would also require the county assessor to consider, when
valuing real property for property taxation purposes, solar-use
easements. By changing the manner in which county assessors assess
property for property taxation purposes, this bill would impose a
state-mandated local program.
(3) The Natural Community Conservation Planning Act defines
"covered species" for purposes of the act to mean those species, both
listed and nonlisted pursuant to the California Endangered Species
Act conserved and managed under an approved natural community
conservation plan and that may be authorized for take. The act
further authorizes the department to, prior to approval of a
conservation plan, authorize by permit the taking of any covered
species whose conservation and management is provided for in a
natural community conservation plan approved by the department.
This bill would revise the definition of "covered species" to
include fully protected species, as specified, and would make
conforming changes. The bill would also include specified fully
protected species in the species authorized to be taken prior to the
approval of a conservation plan.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares all of the
following:
(a) The California Land Conservation Act of 1965 that has become
known nationwide as the Williamson Act is critical to the welfare of
the people of our state and nation.
(b) The Williamson Act provides a statutory framework for local
implementation of California's most effective farm and ranch land
preservation program, protecting over 16.5 million acres or nearly
one-third of all privately owned land in California.
(c) The long-term conservation of agricultural and open-space land
ensures that a steady supply of high-quality, low-cost fresh foods
is available to urban residents, provides open-space uses that
benefit the public seeking escape from the closeness of urban
society, protects watersheds and vast areas of wildlife habitat, and
conserves world-class agricultural soils.
(d) On April 12, 2011, Governor Brown signed legislation that
requires one-third of the state's electricity to come from renewable
sources by December 31, 2020.
(e) In establishing the 33 percent California Renewables Portfolio
Standard Program (RPS program), there will be many important
benefits to California, including new investment in green
technologies in the state, job creation, improvements in local air
quality, energy independence, and a reduction in greenhouse gas
emissions.
(f) Utility scale photovoltaic electrical energy production is
crucial to achieving and hopefully exceeding California's RPS program
goals.
(g) Encouraging utility scale photovoltaic energy facilities on
marginally productive or physically impaired land by providing
expedited termination of Williamson Act contracts, without penalty,
will protect the many statewide benefits of the program while
providing significant economic incentives for new solar power
development.
(h) In enacting Section 9 of this act, it is the intent of the
Legislature to provide an additional method for terminating a
Williamson Act contract, in addition to those methods already
authorized by statute, for the purpose of encouraging the development
of utility scale solar photovoltaic facilities on marginally
productive or physically impaired farmland. It is not intended to be
the exclusive method of contract termination, nor of Williamson Act
compliance for solar facilities, but merely another option that is
consistent with the constitutional limitations of Section 8 of
Article XIII of the California Constitution.
SEC. 2. Section 2805 of the Fish and Game Code is amended to read:
2805. The definitions in this section govern the construction of
this chapter:
(a) "Adaptive management" means to use the results of new
information gathered through the monitoring program of the plan and
from other sources to adjust management strategies and practices to
assist in providing for the conservation of covered species.
(b) "Candidate species" has the same meaning as defined in Section
2068.
(c) "Changed circumstances" are reasonably foreseeable
circumstances that could affect a covered species or geographic area
covered by the plan.
(d) "Conserve," "conserving," and "conservation" mean to use, and
the use of, methods and procedures within the plan area that are
necessary to bring any covered species to the point at which the
measures provided pursuant to Chapter 1.5 (commencing with Section
2050) are not necessary, and for covered species that are not listed
pursuant to Chapter 1.5 (commencing with Section 2050), to maintain
or enhance the condition of a species so that listing pursuant to
Chapter 1.5 (commencing with Section 2050) will not become necessary.
(e) "Covered species" means those species, both listed pursuant to
Chapter 1.5 (commencing with Section 2050) and nonlisted, conserved
and managed under an approved natural community conservation plan and
that may be authorized for take. Notwithstanding Sections 3511,
4700, 5050, or 5515, fully protected species may be covered species
pursuant to this subdivision, and taking of fully protected species
may be authorized pursuant to Section 2835 for any fully protected
species conserved and managed as a covered species under an approved
natural community conservation plan.
(f) "Department assurance" means the department's commitment
pursuant to subdivision (f) of Section 2820.
(g) "Monitoring program" means a program within an approved
natural community conservation plan that provides periodic
evaluations of monitoring results to assess the adequacy of the
mitigation and conservation strategies or activities and to provide
information to direct the adaptive management program. The monitoring
program shall, to the extent practicable, also be used to meet the
monitoring requirements of Section 21081.6 of the Public Resources
Code. A monitoring program includes all of the following:
(1) Surveys to determine the status of biological resources
addressed by the plan, including covered species.
(2) Periodic accountings and assessment of authorized take.
(3) Progress reports on all of the following matters:
(A) Establishment of habitat reserves or other measures that
provide equivalent conservation of covered species and providing
funding where applicable.
(B) Compliance with the plan and the implementation agreement by
the wildlife agencies, local governments, and landowners who have
responsibilities under the plan.
(C) Measurements to determine if mitigation and conservation
measures are being implemented roughly proportional in time and
extent to the impact on habitat or covered species authorized under
the plan.
(D) Evaluation of the effectiveness of the plan in meeting the
conservation objectives of the plan.
(E) Maps of land use changes in the plan area that may affect
habitat values or covered species.
(4) A schedule for conducting monitoring activities.
(h) "Natural community conservation plan" or "plan" means the plan
prepared pursuant to a planning agreement entered into in accordance
with Section 2810. The plan shall identify and provide for those
measures necessary to conserve and manage natural biological
diversity within the plan area while allowing compatible and
appropriate economic development, growth, and other human uses.
(i) "Person" has the same meaning as defined in Section 711.2.
(j) (1) "Plan participant," prior to approval of a natural
community conservation plan and execution of an implementation
agreement, means a signatory to the planning agreement.
(2) Upon approval of a natural community conservation plan and
execution of an implementation agreement, "plan participant" means
the permittees and any local agency that is a signatory to the
implementing agreement.
(k) "Unforeseen circumstances" means changes affecting one or more
species, habitat, natural community, or the geographic area covered
by a conservation plan that could not reasonably have been
anticipated at the time of plan development, and that result in a
substantial adverse change in the status of one or more covered
species.
( l ) "Wildlife" has the same meaning as defined in
Section 711.2.
(m) "Wildlife agencies" means the department and one or both of
the following:
(1) United States Fish and Wildlife Service.
(2) National Marine Fisheries Service.
SEC. 3. Section 2835 of the Fish and Game Code is amended to read:
2835. At the time of plan approval, the department may authorize
by permit the taking of any covered species, including species
designated as fully protected species pursuant to Sections 3511,
4700, 5050, or 5515, whose conservation and management is provided
for in a natural community conservation plan approved by the
department.
SEC. 4. Section 3511 of the Fish and Game Code is amended to read:
3511. (a) (1) Except as provided in Section 2081.7 or 2835, fully
protected birds or parts thereof may not be taken or possessed at
any time. No provision of this code or any other law shall be
construed to authorize the issuance of permits or licenses to take
any fully protected bird, and no permits or licenses heretofore
issued shall have any force or effect for that purpose. However, the
department may authorize the taking of those species for necessary
scientific research, including efforts to recover fully protected,
threatened, or endangered species, and may authorize the live capture
and relocation of those species pursuant to a permit for the
protection of livestock. Prior to authorizing the take of any of
those species, the department shall make an effort to notify all
affected and interested parties to solicit information and comments
on the proposed authorization. The notification shall be published in
the California Regulatory Notice Register and be made available to
each person who has notified the department, in writing, of his or
her interest in fully protected species and who has provided an
e-mail address, if available, or postal address to the department.
Affected and interested parties shall have 30 days after notification
is published in the California Regulatory Notice Register to provide
any relevant information and comments on the proposed authorization.
(2) As used in this subdivision, "scientific research" does not
include any actions taken as part of specified mitigation for a
project, as defined in Section 21065 of the Public Resources Code.
(3) Legally imported fully protected birds or parts thereof may be
possessed under a permit issued by the department.
(b) The following are fully protected birds:
(1) American peregrine falcon (Falco peregrinus anatum).
(2) Brown pelican.
(3) California black rail (Laterallus jamaicensis coturniculus).
(4) California clapper rail (Rallus longirostris obsoletus).
(5) California condor (Gymnogyps californianus).
(6) California least tern (Sterna albifrons browni).
(7) Golden eagle.
(8) Greater sandhill crane (Grus canadensis tabida).
(9) Light-footed clapper rail (Rallus longirostris levipes).
(10) Southern bald eagle (Haliaeetus leucocephalus leucocephalus).
(11) Trumpeter swan (Cygnus buccinator).
(12) White-tailed kite (Elanus leucurus).
(13) Yuma clapper rail (Rallus longirostris yumanensis).
SEC. 5. Section 4700 of the Fish and Game Code is amended to read:
4700. (a) (1) Except as provided in Section 2081.7 or 2835, fully
protected mammals or parts thereof may not be taken or possessed at
any time. No provision of this code or any other law shall be
construed to authorize the issuance of permits or licenses to take
any fully protected mammal, and no permits or licenses heretofore
issued shall have any force or effect for that purpose. However, the
department may authorize the taking of those species for necessary
scientific research, including efforts to recover fully protected,
threatened, or endangered species. Prior to authorizing the take of
any of those species, the department shall make an effort to notify
all affected and interested parties to solicit information and
comments on the proposed authorization. The notification shall be
published in the California Regulatory Notice Register and be made
available to each person who has notified the department, in writing,
of his or her interest in fully protected species and who has
provided an e-mail address, if available, or postal address to the
department. Affected and interested parties shall have 30 days after
notification is published in the California Regulatory Notice
Register to provide any relevant information and comments on the
proposed authorization.
(2) As used in this subdivision, "scientific research" does not
include any actions taken as part of specified mitigation for a
project, as defined in Section 21065 of the Public Resources Code.
(3) Legally imported fully protected mammals or parts thereof may
be possessed under a permit issued by the department.
(b) The following are fully protected mammals:
(1) Morro Bay kangaroo rat (Dipodomys heermanni morroensis).
(2) Bighorn sheep (Ovis canadensis), except Nelson bighorn sheep
(subspecies Ovis canadensis nelsoni) as provided by subdivision (b)
of Section 4902.
(3) Northern elephant seal (Mirounga angustirostris).
(4) Guadalupe fur seal (Arctocephalus townsendi).
(5) Ring-tailed cat (genus Bassariscus).
(6) Pacific right whale (Eubalaena sieboldi).
(7) Salt-marsh harvest mouse (Reithrodontomys raviventris).
(8) Southern sea otter (Enhydra lutris nereis).
(9) Wolverine (Gulo luscus).
SEC. 6. Section 5050 of the Fish and Game Code is amended to read:
5050. (a) (1) Except as provided in Section 2081.7 or 2835, fully
protected reptiles and amphibians or parts thereof may not be taken
or possessed at any time. No provision of this code or any other law
shall be construed to authorize the issuance of permits or licenses
to take any fully protected reptile or amphibian, and no permits or
licenses heretofore issued shall have any force or effect for that
purpose. However, the department may authorize the taking of those
species for necessary scientific research, including efforts to
recover fully protected, threatened, or endangered species. Prior to
authorizing the take of any of those species, the department shall
make an effort to notify all affected and interested parties to
solicit information and comments on the proposed authorization. The
notification shall be published in the California Regulatory Notice
Register and be made available to each person who has notified the
department, in writing, of his or her interest in fully protected
species and who has provided an e-mail address, if available, or
postal address to the department. Affected and interested parties
shall have 30 days after notification is published in the California
Regulatory Notice Register to provide any relevant information and
comments on the proposed authorization.
(2) As used in this subdivision, "scientific research" does not
include any actions taken as part of specified mitigation for a
project, as defined in Section 21065 of the Public Resources Code.
(3) Legally imported fully protected reptiles or amphibians or
parts thereof may be possessed under a permit issued by the
department.
(b) The following are fully protected reptiles and amphibians:
(1) Blunt-nosed leopard lizard (Crotaphytus wislizenii silus).
(2) San Francisco garter snake (Thamnophis sirtalis tetrataenia).
(3) Santa Cruz long-toed salamander (Ambystoma macrodactylum
croceum).
(4) Limestone salamander (Hydromantes brunus).
(5) Black toad (Bufo boreas exsul).
SEC. 7. Section 5515 of the Fish and Game Code is amended to read:
5515. (a) (1) Except as provided in Section 2081.7 or 2835, fully
protected fish or parts thereof may not be taken or possessed at any
time. No provision of this code or any other law shall be construed
to authorize the issuance of permits or licenses to take any fully
protected fish, and no permits or licenses heretofore issued shall
have any force or effect for that purpose. However, the department
may authorize the taking of those species for necessary scientific
research, including efforts to recover fully protected, threatened,
or endangered species. Prior to authorizing the take of any of those
species, the department shall make an effort to notify all affected
and interested parties to solicit information and comments on the
proposed authorization. The notification shall be published in the
California Regulatory Notice Register and be made available to each
person who has notified the department, in writing, of his or her
interest in fully protected species and who has provided an e-mail
address, if available, or postal address to the department. Affected
and interested parties shall have 30 days after notification is
published in the California Regulatory Notice Register to provide any
relevant information and comments on the proposed authorization.
(2) As used in this subdivision, "scientific research" does not
include any actions taken as part of specified mitigation for a
project, as defined in Section 21065 of the Public Resources Code.
(3) Legally imported fully protected fish or parts thereof may be
possessed under a permit issued by the department.
(b) The following are fully protected fish:
(1) Colorado River squawfish (Ptychocheilus lucius).
(2) Thicktail chub (Gila crassicauda).
(3) Mohave chub (Gila mohavensis).
(4) Lost River sucker (Catostomus luxatus).
(5) Modoc sucker (Catostomus microps).
(6) Shortnose sucker (Chasmistes brevirostris).
(7) Humpback sucker (Xyrauchen texanus).
(8) Owens River pupfish (Cyprinoden radiosus).
(9) Unarmored threespine stickleback (Gasterosteus aculeatus
williamsoni).
(10) Rough sculpin (Cottus asperrimus).
SEC. 8. Chapter 6.9 (commencing with Section 51190) is added to
Part 1 of Division 1 of Title 5 of the Government Code, to read:
CHAPTER 6.9. SOLAR-USE EASEMENT
Article 1. Definitions
51190. As used in this chapter, the following terms have the
following meanings:
(a) "City" means any city or city and county.
(b) "Landowner" includes a lessee or trustee, if the expiration of
the lease or trust occurs at a time later than the expiration of the
restriction of the use of the land to photovoltaic solar facilities
or any extension of the restriction.
(c) "Solar-use easement" means any right or interest acquired by a
county, or city in perpetuity, for a term of years, or annually
self-renewing as provided in Section 51191.2, in a parcel or parcels
determined by the Department of Conservation pursuant to Section
51191 to be eligible, where the deed or other instrument granting the
right or interest imposes restrictions that, through limitation of
future use, will effectively restrict the use of the land to
photovoltaic solar facilities for the purpose of providing for the
collection and distribution of solar energy for the generation of
electricity, and any other incidental or subordinate agricultural,
open-space uses, or other alternative renewable energy facilities. A
solar-use easement shall not permit any land located in the easement
to be used for any other use allowed in commercial, industrial, or
residential zones. A solar-use easement shall contain a covenant with
the county, or city running with the land, either in perpetuity or
for a term of years, that the landowner shall not construct or permit
the construction of improvements except those for which the right is
expressly reserved in the instrument provided that those
reservations would not be inconsistent with the purposes of this
chapter and which would not be incompatible with the sole use of the
property for solar photovoltaic facilities.
Article 2. General Provisions
51191. (a) For purposes of this chapter, and for purposes of
Chapter 7 (commencing with Section 51200), the Department of
Conservation, in consultation with the Department of Food and
Agriculture, upon a request from a city or county, may determine,
based on substantial evidence, that a parcel or parcels is eligible
for rescission under Section 51255.1 for placement into a solar-use
easement if the following criteria are met:
(1) The land meets either of the following:
(A) The land consists predominately of soils with significantly
reduced agricultural productivity for agricultural activities due to
chemical or physical limitations, topography, drainage, flooding,
adverse soil conditions, or other physical reasons.
(B) The land has severely adverse soil conditions that are
detrimental to continued agricultural activities and production.
Severely adverse soil conditions may include, but are not limited to,
contamination by salts or selenium, or other naturally occurring
contaminants.
(2) The parcel or parcels are not located on lands designated as
prime farmland, unique farmland, or farmland of statewide importance,
as shown on the maps prepared pursuant to the Farmland Mapping and
Monitoring Program of the California Natural Resources Agency, unless
the Department of Conservation, in consultation with the Department
of Food and Agriculture, determines that a parcel or parcels are
eligible to be placed in a solar-use easement based on the
information provided in subdivision (b) that demonstrates that
circumstances exist that limit the use of the parcel for agricultural
activities. For purposes of this section, the important farmland
designations shall not be changed solely due to irrigation status.
(b) To assist in the determination described in this section, the
city or county shall require the landowner to provide to the
Department of Conservation the following information to the extent
applicable:
(1) A written narrative demonstrating that even under the best
currently available management practices, continued agricultural
practices would be substantially limited due to the soil's reduced
agricultural productivity from chemical or physical limitations,
(2) A recent soil test demonstrating that the characteristics of
the soil significantly reduce its agricultural productively.
(3) An analysis of water availability demonstrating the
insufficiency of water supplies for continued agricultural
production.
(4) An analysis of water quality demonstrating that continued
agricultural production would, under the best currently available
management practices, be significantly reduced.
(5) Crop and yield information for the past six years.
(c) The landowner shall provide the Department of Conservation
with a proposed management plan describing how the soil will be
managed during the life of the easement, how impacts to adjacent
agricultural operations will be minimized, how the land will be
restored to its previous general condition, as it existed at the time
of project approval, upon the termination of the easement. If the
Department of Conservation determines, in consultation with the
Department of Food and Agriculture, pursuant to subdivision (a), that
lands are subject to this section, the city or county shall require
implementation of the management plan, which shall include any
recommendations provided by the Department of Conservation, as part
of any project approval.
(d) A determination by the Department of Conservation pursuant to
this section related to a project described in Section 21080.43 of
the Public Resources Code shall not be subject to Division 13 of the
Public Resources Code.
(e) The Department of Conservation may establish a fee to be paid
by the landowner to recover the estimated costs incurred by the
department in participating in the consultation described in this
section.
51191.1. Any county or city may enter into an agreement with a
landowner pursuant to Section 51255.1 to use lands determined to be
eligible pursuant to Section 51191 in a solar-use easement in the
manner provided in this chapter.
51191.2. The execution and acceptance of a deed or other
instrument described in subdivision (c) of Section 51190 shall
constitute a dedication to the public of the use of lands for solar
photovoltaic use. Any term easement and covenant shall run for a term
of not less than 20 years unless a shorter term is requested by the
landowner, in which case the term may be not less than 10 years. A
solar-use easement for a term of years may provide that on the
anniversary date of the acceptance of the solar-use easement, or on
any other annual date as specified by the deed or other instrument
described in subdivision (c) of Section 51190, a year shall be added
automatically to the initial term unless a notice of nonrenewal is
given as provided in Section 51192.
51191.3. (a) A county or city may require a deed or other
instrument described in subdivision (c) of Section 51190 to contain
any restrictions, conditions, or covenants as are necessary or
desirable to restrict the use of the land to photovoltaic solar
facilities.
(b) The restrictions, conditions, or covenants may include, but
are not limited to, the following:
(1) Mitigation measures on the land that is subject to the
solar-use easement.
(2) Mitigation measures beyond the land that is subject to the
solar-use easement.
(3) If deemed necessary by the city or county to ensure that
decommissioning requirements are met, the provision for financial
assurances, such as performance bonds, letters of credit, a corporate
guarantee, or other securities to fund, upon the cessation of the
solar photovoltaic use, the restoration of the land that is subject
to the easement to the conditions that existed before the approval or
acceptance of that easement by the time that the easement
terminates.
(4) Provision for necessary amendments by the parties provided
that the amendments are consistent with the provisions of this
chapter.
(c) For term easements or self-renewing easements, the
restrictions, conditions, or covenants shall include a requirement
for the landowner to post a performance bond or other securities to
fund the restoration of the land that is subject to the easement to
the conditions that existed before the approval or acceptance of the
easement by the time the easement terminates. The Department of
Conservation may adopt regulations pursuant to the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of
Division 3 of Title 2) to implement this subdivision.
51191.4. No deed or other instrument described in subdivision (c)
of Section 51190 shall be effective until it has been accepted or
approved by resolution of the governing body of the county or city
and its acceptance endorsed thereon.
51191.5. (a) During the term of the solar-use easement, the
county or city shall not approve any land use on land covered by a
solar easement that is inconsistent with the easement, and no
building permit may be issued for any structure that would violate
the easement. The county or city shall seek, by appropriate
proceedings, an injunction against any threatened construction or
other development or activity on the land that would violate the
easement and shall seek a mandatory injunction requiring the removal
of any structure erected in violation of the easement.
If the county or city fails to seek an injunction against any
threatened construction or other development or activity on the land
that would violate the easement or to seek a mandatory injunction
requiring the removal of any structure erected in violation of the
easement, 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.
(b) The
court may award to a plaintiff who prevails in an action authorized
by this section his or her cost of litigation, including reasonable
attorney's fees.
(c) Nothing in this chapter shall limit the power of the state or
any county, city, school district, or any other local public
district, agency, or entity, or any other person authorized by law,
to acquire land subject to a solar-use easement by eminent domain.
51191.6. Upon the acceptance or approval of any instrument
creating a solar-use easement, the clerk of the governing body shall
record the instrument in the office of the county recorder and file a
copy with the county assessor. After the easement is recorded, it
shall impart notice to all persons under the recording laws of this
state.
51191.7. The parcel or parcels subject to a solar-use easement
shall be assessed pursuant to Section 402.1 of the Revenue and
Taxation Code during the term of the easement.
51191.8. The Department of Conservation may adopt regulations
pursuant to the Administrative Procedure Act (Chapter 3.5 (commencing
with Section 11340) of Division 3 of Title 2) for the implementation
of this chapter.
Article 3. Extinguishment of a Solar-Use Easement
51192. (a) A solar-use easement may be extinguished on all or a
portion of the parcel only by nonrenewal, termination, or by
returning the land to its previous contract pursuant to Article 3
(commencing with Section 51240) of Chapter 7.
(b) (1) If either the landowner or the county or city desires in
any year not to renew the solar-use easement on all or a portion of
the parcel, that party shall serve written notice of nonrenewal of
the easement upon the other party at least 90 days in advance of the
annual renewal date of the solar-use easement. Unless written notice
is served at least 90 days in advance of the renewal date, the
solar-use easement shall be considered renewed as provided in Section
51191.2.
(2) Upon receipt by the owner of a notice from the county or city
of nonrenewal, the owner may make a written protest of the notice of
nonrenewal. The county or city may, at any time prior to the renewal
date, withdraw the notice of nonrenewal.
(c) If the county, city, or the landowner serves notice of intent
in any year not to renew the solar-use easement, the existing
solar-use easement shall remain in effect for the balance of the
period remaining since the original execution or the last renewal of
the solar-use easement, as the case may be.
51192.1. In the case of a solar-use easement that is extinguished
because of a notice of nonrenewal by the landowner or due to
termination, the landowner shall restore the land that is subject to
the easement to the conditions that existed before the approval of
the easement by the time the easement terminates.
51192.2. (a) If all or a portion of the parcel held in a
solar-use easement will no longer be used for the purposes outlined
in the easement the landowner may petition the county or city to
approve termination of the easement.
(b) Prior to any action by the county or city giving tentative
approval to the termination of any easement, the county assessor of
the county in which the land is located shall determine the current
fair market value of the parcel or parcels to be terminated as though
the parcel or parcels were free of the easement restriction. The
assessor shall certify to the county or city the termination
valuation of the parcel or parcels for the purpose of determining the
termination fee. At the same time, the assessor shall send a notice
to the landowner and the Department of Conservation indicating the
current fair market value of the parcel or parcels as though the
parcel or parcels were free of the easement restriction and advise
the parties, that upon their request, the assessor shall provide all
information relevant to the valuation, excluding third-party
information. If any information is confidential or otherwise
protected from release, the department and the landowner shall hold
it as confidential and return or destroy any protected information
upon completion of all actions relating to valuation or termination
of the easement on the property. The notice shall also advise the
landowner and the department of the opportunity to request formal
review from the assessor.
(c) Prior to giving tentative approval to the termination of any
easement, the county or city shall determine and certify to the
county auditor the amount of the termination fee that the landowner
shall pay the county treasurer upon termination. That fee shall be an
amount equal to 121/2 percent of the termination valuation of the
property.
(d) If it finds that it is in the public interest to do so, the
county or city may waive any payment or any portion of a payment by
the landowner, or may extend the time for making the payment or a
portion of the payment contingent upon the future use made of the
parcel or parcels and the parcel or parcels economic return to the
landowner for a period of time not to exceed the unexpired period of
the easement, had it not been terminated, if both of the following
occur:
(1) The termination is caused by an involuntary transfer or change
in the use which may be made of the land and the land is not
immediately suitable, nor will be immediately used, for a purpose
which produces a greater economic return to the owner.
(2) The waiver or extension of time is approved by the Secretary
of the Natural Resources Agency. The secretary shall approve a waiver
or extension of time if the secretary finds that the granting of the
waiver or extension of time by the county or city is consistent with
the policies of this chapter and that the county or city complied
with this article. In evaluating a request for a waiver or extension
of time, the secretary shall review the findings of the county or
city, the evidence in the record of the county or city, and any other
evidence the secretary may receive concerning the abandonment,
waiver, or extension of time.
(e) When termination fees required by this section are collected,
they shall be transmitted by the county treasurer to the Controller
and deposited in the General Fund, except as provided in subdivision
(b) of Section 51203 or subdivision (d) of Section 51283.
(f) It is the intent of the Legislature that fees paid to
terminate a contract do not constitute taxes but are payments that,
when made, provide a private benefit that tends to increase the value
of the property.
SEC. 9. Section 51255.1 is added to the Government Code, to read:
51255.1. (a) Notwithstanding any other provision of this chapter,
the parties may upon their mutual agreement rescind a contract for a
parcel or parcels of land that, upon review and approval, are
determined by the Department of Conservation to be eligible to be
placed into a solar-use easement pursuant to Section 51191, in order
to simultaneously enter into a solar-use easement pursuant to Chapter
6.9 (commencing with Section 51190). This action may be taken
notwithstanding the prior serving of a notice of nonrenewal.
(b) Nothing in this section limits the ability of the parties to a
contract to seek nonrenewal, or petition for cancellation or
termination of a contract pursuant to this chapter. This section is
provided in addition to, not in replacement of, other methods for
contract termination, Williamson Act compliance, or a county finding
that a solar facility is a compatible use pursuant to this chapter.
(c) (1) Prior to the board or council agreeing to mutually rescind
a contract pursuant to this section, the county assessor of the
county in which the land is located shall determine the current fair
market value of the land as though it were free of the contractual
restriction. The assessor shall certify to the board or council the
fair market valuation of the land for the purpose of determining the
rescission fee. At the same time, the assessor shall send a notice to
the landowner and the Department of Conservation indicating the
current fair market value of the land as though it were free of the
contractual restriction and advise the parties, that upon their
request, the assessor shall provide all information relevant to the
valuation, excluding third-party information. If any information is
confidential or otherwise protected from release, the department and
the landowner shall hold it as confidential and return or destroy any
protected information upon termination of all actions relating to
valuation or rescission of the contract on the property. The notice
shall also advise the landowner and the department of the opportunity
to request formal review from the assessor.
(2) Prior to agreeing to mutually rescind a contract pursuant to
this section, the board or council shall determine and certify to the
county auditor the amount of the rescission fee that the landowner
shall pay the county treasurer upon rescission. That fee shall be an
amount equal to 6 1/4 percent of the fair market valuation of the
property if the land was held under a contract pursuant to Section
51240, and 121/2 percent if the land was held in a contract
designating the property as a farmland security zone.
(3) When rescission fees required by this subdivision are
collected, they shall be transmitted by the county treasurer to the
Controller and deposited in the General Fund, except as provided in
subdivision (b) of Section 51203 or subdivision (d) of Section 51283.
The funds collected by the county treasurer with respect to each
rescission of a contract shall be transmitted to the Controller
within 30 days of the execution of the mutual rescission of the
contract by the parties.
(4) It is the intent of the Legislature that fees paid to rescind
a contract do not constitute taxes but are payments that, when made,
provide a private benefit that tends to increase the value of the
property.
SEC. 10. Section 402.1 of the Revenue and Taxation Code is amended
to read:
402.1. (a) In the assessment of land, the assessor shall consider
the effect upon value of any enforceable restrictions to which the
use of the land may be subjected. These restrictions shall include,
but are not limited to, all of the following:
(1) Zoning.
(2) Recorded contracts with governmental agencies other than those
provided in Sections 422 and 422.5.
(3) Permit authority of, and permits issued by, governmental
agencies exercising land use powers concurrently with local
governments, including the California Coastal Commission and regional
coastal commissions, the San Francisco Bay Conservation and
Development Commission, and the Tahoe Regional Planning Agency.
(4) Development controls of a local government in accordance with
any local coastal program certified pursuant to Division 20
(commencing with Section 30000) of the Public Resources Code.
(5) Development controls of a local government in accordance with
a local protection program, or any component thereof, certified
pursuant to Division 19 (commencing with Section 29000) of the Public
Resources Code.
(6) Environmental constraints applied to the use of land pursuant
to provisions of statutes.
(7) Hazardous waste land use restriction pursuant to Section 25240
of the Health and Safety Code.
(8) A recorded conservation, trail, or scenic easement, as
described in Section 815.1 of the Civil Code, that is granted in
favor of a public agency, or in favor of a nonprofit corporation
organized pursuant to Section 501(c)(3) of the Internal Revenue Code
that has as its primary purpose the preservation, protection, or
enhancement of land in its natural, scenic, historical, agricultural,
forested, or open-space condition or use.
(9) A solar-use easement pursuant to Chapter 6.9 (commencing with
Section 51190) of Part 1 of Division 1 of Title 5 of the Government
Code.
(b) There is a rebuttable presumption that restrictions will not
be removed or substantially modified in the predictable future and
that they will substantially equate the value of the land to the
value attributable to the legally permissible use or uses.
(c) Grounds for rebutting the presumption may include, but are not
necessarily limited to, the past history of like use restrictions in
the jurisdiction in question and the similarity of sales prices for
restricted and unrestricted land. The possible expiration of a
restriction at a time certain shall not be conclusive evidence of the
future removal or modification of the restriction unless there is no
opportunity or likelihood of the continuation or renewal of the
restriction, or unless a necessary party to the restriction has
indicated an intent to permit its expiration at that time.
(d) In assessing land with respect to which the presumption is
unrebutted, the assessor shall not consider sales of otherwise
comparable land not similarly restricted as to use as indicative of
value of land under restriction, unless the restrictions have a
demonstrably minimal effect upon value.
(e) In assessing land under an enforceable use restriction wherein
the presumption of no predictable removal or substantial
modification of the restriction has been rebutted, but where the
restriction nevertheless retains some future life and has some effect
on present value, the assessor may consider, in addition to all
other legally permissible information, representative sales of
comparable lands that are not under restriction but upon which
natural limitations have substantially the same effect as
restrictions.
(f) For the purposes of this section the following definitions
apply:
(1) "Comparable lands" are lands that are similar to the land
being valued in respect to legally permissible uses and physical
attributes.
(2) "Representative sales information" is information from sales
of a sufficient number of comparable lands to give an accurate
indication of the full cash value of the land being valued.
(g) It is hereby declared that the purpose and intent of the
Legislature in enacting this section is to provide for a method of
determining whether a sufficient amount of representative sales
information is available for land under use restriction in order to
ensure the accurate assessment of that land. It is also hereby
declared that the further purpose and intent of the Legislature in
enacting this section and Section 1630 is to avoid an assessment
policy which, in the absence of special circumstances, considers uses
for land that legally are not available to the owner and not
contemplated by government, and that these sections are necessary to
implement the public policy of encouraging and maintaining effective
land use planning. Nothing in this statute shall be construed as
requiring the assessment of any land at a value less than as required
by Section 401 or as prohibiting the use of representative
comparable sales information on land under similar restrictions when
this information is available.
SEC. 11. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.
