BILL ANALYSIS Ó AB 1251 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1251 (Gomez) As Amended September 4, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |61-15 |(June 3, 2015) |SENATE: | |(September 10, | | | | | |27-13 |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: W., P., & W. SUMMARY: Enacts the Greenway Development and Sustainment Act. The Senate amendments: 1)Add a new chapter to the Civil Code regarding Greenway Easements, that includes all the following: a) States findings and declarations regarding development of greenways along urban waterways, including that: i) The restoration of land in its natural, scenic, forested, recreational, or open-space condition is among the most important environmental assets in California; AB 1251 Page 2 ii) That greenways have the potential to improve the quality of life in, and connectivity between, communities and provide important recreational, open-space, wildlife, flood management, greenhouse gas reduction, and urban waterfront revitalization opportunities; and iii) That it is the policy of the Legislature and in the best interest of the state to encourage the voluntary conveyance of greenway easements to qualified nonprofit organizations. b) Creates a new real property interest known as a greenway easement, defined as an interest in real property voluntarily created and freely transferable in whole or in part, for the purpose of developing greenways adjacent to urban waterways, by any lawful method for the transfer of interests in real property in the state. Provides that a greenway easement shall be perpetual in duration, shall constitute an interest in real property, and that the particular interests of a greenway easement shall be those granted or specified in the instrument creating or transferring the easement. c) States that a greenway easement means any limitation in a deed, will, or other instrument in the form of an easement, restriction, covenant, or condition that is or has been executed by or on behalf of the owner of the land subject to the easement and is binding upon successive owners of the land, for the purpose of developing greenways adjacent to urban waterways. d) Authorizes only the following entities to acquire and hold a greenway easement: i) A 501(c)(3) tax-exempt nonprofit organization that has as its primary purpose the preservation, protection, AB 1251 Page 3 or enhancement of land in its natural, scenic, historical, agricultural, forested, or open-space condition or use, or the preservation or development of a greenway. ii) The state or any city, county, of other governmental entity authorized to acquire and hold title and real property, provided the greenway easement is voluntarily conveyed. Prohibits a local government entity from conditioning the issuance of an entitlement for use on an applicant's granting of a greenway easement. iii) A federally recognized California Native American tribe or a nonfederally recognized California Native American tribe that is on the contact list maintained by the Native American Heritage Commission, as specified, if the greenway easement is voluntarily conveyed. e) Provides that all interests not transferred or conveyed by the instrument creating the greenway easement shall remain in the grantor of the greenway easement, including the right to engage in all uses of the land not affected by the greenway easement nor prohibited by the greenway easement or by law. f) Requires that greenway easement instruments be recorded in the county recorder's office of the county where the land is located. g) Provides that greenway easements shall be enforceable by injunctive relief, and that additionally the holder of a greenway easement shall be entitled to recover money damages for injuries to a greenway easement or interest, and that a court may award attorney's fees to a prevailing party in an action to enforce a greenway easement. AB 1251 Page 4 h) Provides that nothing in this new chapter shall be construed to impair or conflict with other laws conferring the right or power to hold interests in land comparable to greenway easements, as specified. i) Provides that a greenway easement is an enforceable restriction for purposes of the Revenue and Taxation Code. j) Defines various terms for purposes of this new chapter on greenway easements. 2)Add greenways to the definition of open space in the Government Code. 3)Add recorded greenway easements to the list of enforceable restrictions on land that the tax assessor shall consider in determining the assessable value of lands. 4)Strike a clause in the findings and declarations that stated cities or counties that develop a greenway may apply for greenhouse gas reduction funds. 5)Add language to avoid chaptering out issues with AB 668 (Gomez) of the current legislative session. 6)Add coauthors. EXISTING LAW: AB 1251 Page 5 1)Authorizes a tax-exempt 501(c)(3) nonprofit organization that has as its primary purpose the preservation, protection, or enhancement of land it its natural, scenic, historical, agricultural, forested, or open-space condition or use, to acquire and hold conservation easements. 2)Defines a conservation easement as an interest in real property that is perpetual in nature, and is a limitation in a deed, will, or other instrument that is binding upon successive owners of such land, and the purpose of which is to retain land predominantly in its natural, scenic, historical, agricultural, forested, or open-space condition. 3)Defines an open-space easement as a right or interest in property that is in perpetuity or for a term of years in open-space land acquired by a county, city, or nonprofit organization where the deed or other instrument granting such right or interest imposes restrictions which, through limitation of future use, will effectively preserve for public use or enjoyment the natural or scenic character of such open-space land. Requires an open-space easement to contain a covenant 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 as specified. FISCAL EFFECT: According to the Senate Appropriations Committee: 1)Unknown costs, at least in the hundreds of thousands of dollars, if not millions, (General Fund) for increased Proposition 98 of 1988 payments needed to replace reduced local property tax revenues used for schools. 2)Cost pressures, likely in the millions of dollars, to the Greenhouse Gas Reduction fund (special) and various special AB 1251 Page 6 funds for alternative fuels for greenway projects. COMMENTS: The author's stated purpose in introducing this bill is to promote greenway development in California. The Assembly version of this bill added a nonprofit 501(c)(3) organization whose primary purpose is to develop a greenway, to the list of entities authorized to acquire and hold conservation easements. The Assembly version also defined a greenway for these purposes, and added greenways to the types of open space lands that may be included in the open space element of a county or city general plan. In further discussions regarding the goals of greenway development, as this bill moved through the legislative process, it became apparent that the purposes of a greenway easement are similar to but different in several distinct ways from both a conservation easement and an open space easement. A conservation easement generally is seeking to protect lands in their natural state in perpetuity. An open-space easement seeks to protect the open-space character of lands but allows for multiple uses on the land, and does not necessarily exist in perpetuity. A greenway development, particularly of the type envisioned for the Los Angeles River, seeks to restore a disturbed area to its a more natural open-space condition, but also to allow uses such as trails and bike paths, and to improve the quality of life for residents living near the urban waterway by allowing for compatible public access to the greenway once it is restored. After the investment is made in restoration of the greenway, there is also a desire to protect that investment from future development that would be incompatible with the purposes of the greenway. In recognition of the specific purposes of a greenway, the Senate amendments create a new chapter on greenway easements, modelled after existing law regarding open space easements. The author notes that greenways improve the quality of life in communities by providing connectivity between communities, and important recreational, open space, wildlife, flood management, water quality, air quality, transportation, emergency response, AB 1251 Page 7 and urban waterfront revitalization opportunities. This bill is focused on promotion of greenways generally throughout the state. As an example of a proposed greenway, there has been significant interest in the potential for development of a Los Angeles River Greenway through public-private partnerships aimed at establishing a continuous pedestrian/bikeway along the Los Angeles River and its key tributaries. Supporters of the proposed project highlight the potential for job creation, economic development, and community revitalization that could be fostered by investing in a non-motorized commuter and recreational transit route following the 51 mile Los Angeles River corridor, and connecting existing communities to a network of parks and multi-use trails. For a more detailed discussion and background on the history of the Los Angeles River, and recent efforts to restore the river and revitalize surrounding communities, see the Assembly Water, Parks and Wildlife Committee analysis of AB 1922 (Gomez) of 2014. Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0002245