Laws, Regulations & Annotations

Property Taxes Law Guide – Revision 2013
 

Additional Government Code Provisions

Provisions Relating to the Open-Space Easement Act of 1974

CHAPTER 6.6. Open-Space Easements

Chapter 6.6. Open-Space Easements*

* Chapter 6.6 was added by Stats. 1974, Ch. 1003, p. 2154, in effect January 1, 1975. Sec. 10 thereof provided no payment by state to local governments because of this act.

Note.—Section 11 of Stats. 1974, Ch. 1003, p. 2161, provided that the provisions of this act shall be given prospective application only and shall not be construed in a manner which would impair the obligation of any existing open-space easement or scenic restriction entered into prior to January 1, 1975. Land subject to any such easement or restriction on such date shall continue to be assessed under Article 1.5 (commencing with Section 421) of Chapter 3 of Part 2 of Division 1 of the Revenue and Taxation Code so long as such land otherwise qualifies for assessment under such article and qualifies under Chapter 6.5 (commencing with Section 51050) of Part 1 of Division 1 of Title 5 of, or under Chapter 12 (commencing with Section 6950) of Division 7 of Title 1 of, the Government Code.

Article 1. Declaration

51070. Legislative intent. It is the intent of the Legislature in enacting this chapter to provide a means whereby any county or city may acquire or approve an open-space easement in perpetuity or for a term of years for the purpose of preserving and maintaining open space.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, added "or approve".

51071. Legislative finding. The Legislature finds that the rapid growth and spread of urban development is encroaching upon, or eliminating open-space lands which are necessary not only for the maintenance of the economy of the state, but also for the assurance of the continued availability of land for the production of food and fiber, for the enjoyment of scenic beauty, for recreation and for the use and conservation of natural resources.

51072. Legislative declaration. The Legislature hereby declares that open-space lands, if preserved and maintained, would constitute important physical, social, economic or aesthetic assets to existing or pending urban development.

51073. Additional legislative declaration. The Legislature further declares that the acquisition of open-space easements is in the public interest and constitutes a public purpose for which public funds may be expended or advanced.

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Article 2. Definitions

51075. Definitions. As used in this chapter, unless otherwise apparent from the context:

(a) "Open-space land" means any parcel or area of land or water which is essentially unimproved and devoted to an open-space use as defined in Section 65560 of the Government Code.

(b) "City" means any city or city and county.

(c) "Landowner" includes a lessee or trustee, if the expiration of the lease or trust occurs at a time later than the expiration of the open-space restriction or any extension thereof.

(d) "Open-space easement" means any right or interest in perpetuity or for a term of years in open-space land acquired by a county, city, or nonprofit organization pursuant to this chapter 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. An open-space easement shall contain a covenant with the county, city, or nonprofit organization 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 such reservation would not be inconsistent with the purposes of this chapter and which would not be incompatible with maintaining and preserving the natural or scenic character of the land. Any such covenant shall not prohibit the construction of either public service facilities installed for the benefit of the land subject to such covenant or public service facilities installed pursuant to an authorization by the governing body of the county or city or the Public Utilities Commission.

(e) "Open-space plan" means the open-space element of a county or city general plan adopted by the local governing body pursuant to Section 65560 of the Government Code.

(f) "Nonprofit organization" means any organization qualifying under Section 501(c)(3) of the Internal Revenue Code in the preceding tax year, and which includes the preservation of open space as a stated purpose in its articles of incorporation. Such qualification shall be demonstrated by a letter of determination from the Internal Revenue Service.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, added "nonprofit organization" in the first and second sentences of subdivision (d) and added subdivision (f).

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Article 3. General Provisions

51080. Authority of county or city to accept grant of easement. Any county or city which has an adopted open-space plan may accept or approve a grant of an open-space easement on privately owned lands lying within the county or city in the manner provided in this chapter.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, added "or approve".

51081. Effect of acceptance. The execution and acceptance of a deed or other instrument described in subdivision (d) of Section 51075 shall constitute a dedication to the public of the open-space character of the lands for the term specified. Any such easement and covenant shall run for a term of not less than 10 years. An open-space easement for a term of years shall provide that on the anniversary date of the acceptance of the open-space easement or on such other annual date as specified by the deed or other instrument described in subdivision (d) of Section 51075, a year shall be added automatically to the initial term unless a notice of nonrenewal is given as provided in Section 51091.

History.—Stats. 1975, Ch. 224, p. 600, in effect January 1, 1976, substituted "deed or other instrument described in subdivision (d) of Section 51075" for "contract" in the third sentence.

51082. Contents of deed or other instrument. A county or city may require a deed or other instrument described in subdivision (d) of Section 51075 to contain any such restrictions, conditions or covenant as are necessary or desirable to maintain the natural or scenic character of the land or to prevent any activity, use or action which could impair the open-space character of the land.

51083. Manner of acceptance of deed or other instrument. No deed or other instrument described in subdivision (d) of Section 51075 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.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, added "or approved" after "accepted".

51083.5. Effective date of grant of easement to nonprofit corporation. Notwithstanding any provisions of this chapter, the grant of any easement to a nonprofit organization shall be effective upon its acceptance by such organization. However, for the purposes of this chapter and Sections 421 to 432, inclusive, of the Revenue and Taxation Code, no such easement shall be considered as granted pursuant to this chapter unless the grant of such easement has been approved by the county or city in which the land lies pursuant to the provisions of this article.

History.—Added by Stats. 1977, Ch. 1178, in effect January 1, 1978.

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51084. Finding of consistency with general plan and public interest; conditions; conclusiveness of resolution. deletionA grant of an open-space easement shall be accepted or approved by a county or city, unless the governing body, by resolution, finds:

(a) That the preservation of the land as open space is consistent with the general plan of the county or city; and

(b) That the preservation of the land as open space is in the best interest of the county, deletioncitydeletion, or city and county and is important to the public for the enjoyment of scenic beauty, for the use of natural resources, for recreation, or for the production of food and fiber specifically because one or more of the following reasons exist:

(1) That the land is essentially unimproved and if retained in its natural state has either scenic value to the public, or is valuable as a watershed or as a wildlife preserve, and the instrument contains appropriate covenants to that end.

(2) It is in the public interest that the land be retained as open space because such land either will add to the amenities of living in neighboring urbanized areas or will help preserve the rural character of the area in which the land is located.

(3) The land lies in an area that in the public interest should remain rural in character and the retention of the land as open space will preserve the rural character of the area.

(4) It is in the public interest that the land remain in its natural state, including the trees and other natural growth, as a means of preventing floods or because of its value as watershed.

(5) The land lies within an established scenic highway corridor.

(6) The land is valuable to the public as a wildlife preserve or sanctuary and the instrument contains appropriate covenants to that end.

(deletion7) The public interest will otherwise be served in a manner recited in the resolution and consistent with the purposes of this subdivision and Section 8 of Article XIII of the Constitution of the State of California.

The resolution of the governing body shall establish a conclusive presumption that the conditions set forth in subdivisions (a) and (b) have been satisfied.

History.—Stats. 1975, Ch. 224, p. 600, in effect January 1, 1976, substituted "Section 8 of Article XIII" for "Article XXVIII" in the first sentence of subdivision (b)(3). Stats. 1977, Ch. 1178, in effect January 1, 1978, added "or approved" after "accepted" in first paragraph. Stats. 2012, Ch. 875 (SB 1501), in effect January 1, 2013, substituted "A" for "No" before "grant of" in the first sentence of the first paragraph; substituted "state, county, city, or city and county and is important to the public for the enjoyment of scenic beauty, for the use of natural resources, for recreation, or for the production of food and fiber" for "county or city and" after "interest of the" in the first sentence of the first paragraph, added paragraphs (3). (4), (5) and (6), and renumbered former paragraph (3) as paragraph (7) in subdivision (b).

51085. Referral to planning department or planning commission; report. The governing body of the county or city may not accept or approve any grant of an open-space easement until the matter has first been referred to the county or city planning department or planning commission and a report thereon has been received from the planning department or planning commission. Within 30 days after receiving the proposal to accept or approve a grant of an open-space easement, the planning department or planning commission shall submit its report to the governing body. The governing body may extend the time for submitting such a report for an additional period not exceeding 30 days. The report shall specify whether the proposal is consistent with the general plan of the jurisdiction.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, added "or approved" after "accept" in first and second sentences.

51086. Injunction against construction or activity violating easement; building permit violating easement; retention of right of eminent domain. (a) From and after the time when an open-space easement has been accepted or approved by the county or city and its acceptance endorsed thereon, no building permit may be issued for any structure which would violate the easement and the county or city shall seek by appropriate proceedings an injunction against any threatened construction or other development or activity on the land which would violate the easement and shall seek a mandatory injunction requiring the removal of any structure erected in violation of the easement.

In the event the county or city fails to seek an injunction against any threatened construction or other development or activity on the land which 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, the owner of any property within the county or city, or any resident thereof, may, by appropriate proceedings, seek such an injunction.

(b) In the case of an open-space easement granted to a nonprofit organization pursuant to this chapter, such organization shall seek, through its official representatives, an injunction against any threatened construction or other development or activity on the land which would violate the easement and shall seek a mandatory injunction requiring the removal of any structure erected in violation of the easement.

(c) The court may award to a plaintiff or defendant who prevails in an action authorized by this section his or her costs of litigation, including reasonable attorney's fees.

(d) Nothing in this chapter shall limit the power of the state, or any department or agency thereof, 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 an open-space easement by eminent domain.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, designated the first two paragraphs as subdivision (a) and added "or approved" after "accepted" in the first sentence of subdivision (a). Also added subdivisions (b) and (c) and designated the fourth paragraph as subdivision (d).

51087. Recording with county recorder and county assessor. Upon the acceptance or approval of any instrument creating an open-space easement the clerk of the governing body shall record the same in the office of the county recorder and file a copy thereof with the county assessor. The recording shall be consistent with Section 27255. From and after the time of deletionthe recordation, deletionthe easement shall impart deletionnotice thereof to all persons as is afforded by the recording laws of this state.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, added "or approval" after "acceptance" in the first sentence. Stats. 2012, Ch. 875 (SB 1501), in effect January 1, 2013, added the second sentence and substituted "the recordation, the easement shall impart" for "such recordation such easement shall impart such" after "time of" in the third sentence of the first paragraph.

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Article 4. Termination of an Open-Space Easement

51090. Nonrenewal or abandonment. An open-space easement for a term of years may be terminated only in accordance with the provisions of this article. An open-space easement may be terminated only by:

(a) Nonrenewal, or

(b) Abandonment.

Abandonment of an easement granted to the county or city pursuant to this chapter shall be controlled by Section 51093.

Abandonment or nonrenewal of an easement granted to a nonprofit organization pursuant to this chapter shall be effective only if approved by appropriate resolution of the governing body of such organization and such abandonment or nonrenewal initiated by a nonprofit organization has been approved by the county or city in which the land lies in the manner provided in Section 51093.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, added the second and third paragraphs.

51091. Notice of nonrenewal. If either the landowner or the county, city, or nonprofit organization desires in any year not to renew the open-space easement, 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 open-space easement. Unless such written notice is served at least 90 days in advance of the renewal date, the open-space easement shall be considered renewed as provided in Section 51081.

Upon receipt by the owner of a notice from the county, city, or nonprofit organization of nonrenewal, the owner may make a written protest of the notice of nonrenewal. The county, city, or nonprofit organization may, at any time prior to the renewal date, withdraw the notice of nonrenewal.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, added "nonprofit organization" in the first and second paragraphs.

51092. Effect of notice on existing easement. If the county, city, or nonprofit organization or the landowner serves notice of intent in any year not to renew the open-space easement, the existing open-space easement shall remain in effect for the balance of the period remaining since the original execution or the last renewal of the open-space easement, as the case may be.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, added "nonprofit organization".

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51093. Petition for abandonment; approval subject to conditions precedent. (a) The landowner may petition the governing body of the county or city for abandonment of any open-space easement or in the case of an open-space easement granted to a nonprofit organization pursuant to this chapter, for approval of abandonment by such organization, as to all of the subject land. The governing body may approve the abandonment of an open-space easement only if, by resolution, it finds:

(1) That no public purpose described in Section 51084 will be served by keeping the land as open space; and

(2) That the abandonment is not inconsistent with the purposes of this chapter; and

(3) That the abandonment is consistent with the local general plan; and

(4) That the abandonment is necessary to avoid a substantial financial hardship to the landowner due to involuntary factors unique to him.

No resolution abandoning an open-space easement, or approving the abandonment of an open-space easement granted to a nonprofit organization pursuant to this chapter, shall be finally adopted until the matter has been referred to the county or city planning commission, the commission has held a public hearing thereon and furnished a report on the matter to the governing body stating whether the abandonment is consistent with the local general plan and the governing body has held at least one public hearing thereon after giving 30 days' notice thereof by publication in accordance with Section 6061 of the Government Code, and by posting notice on the land.

(b) Prior to approval of the resolution abandoning or approving the abandonment of an open-space easement, the county assessor of the county in which the land subject to the open-space easement is located shall determine the full cash value of the land as though it were free of the open-space easement. The assessor shall multiply such value by 25 percent, and shall certify the product to the governing body as the abandonment valuation of the land for the purpose of determining the abandonment fee.

(c) Prior to giving approval to the abandonment of any open-space easement, the governing body shall determine and certify to the county auditor the amount of the abandonment fee which the landowner must pay the county treasurer upon abandonment. That fee shall be an amount equal to 50 percent of the abandonment valuation of the property.

(d) Any sum collected pursuant to this section shall be transmitted by the county treasurer to the State Controller and be deposited in the State General Fund.

(e) An abandonment shall not become effective until the abandonment fee has been paid in full.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, added "or in the case of an open-space easement granted to a nonprofit organization pursuant to this chapter, for approval of abandonment by such organization," and "or approving the abandonment of an open-space easement granted to a nonprofit organization pursuant to this chapter" in the first and second paragraphs of subdivision (a). Also added "or approving the abandonment of" in subdivision (b).

51094. Effect of abandonment resolution on existing easement. Upon the recording in the office of the county recorder of a certified copy of a resolution abandoning or approving the abandonment of an open-space easement and reciting compliance with the provisions of Section 51093, the land subject thereto shall be deemed relieved of the easement and the covenants of the owner contained therein shall be deemed terminated; provided, however, that no certified copy of any resolution abandoning or approving the abandonment of an open-space easement shall be recorded until the abandonment fee has been paid in full.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, added "or approving the abandonment of".

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Article 5. Eminent Domain and Other Provisions

51095. Condemnation; termination of easement. If any land or a portion thereof as to which any city or county has accepted or approved an open-space easement pursuant to this chapter is thereafter sought to be condemned for public use and the easement was received as a gift without the payment of any compensation therefor, the easement shall terminate as of the time of the filing of the complaint in condemnation as to the land or portion thereof sought to be taken for public use, and the owner shall be entitled to such compensation for the taking as he would have been entitled to had the land not been burdened by the easement.

History.—Stats. 1977, Ch. 1178, in effect January 1, 1978, added "or approved".

51096. Assessment as open-space lands. Lands subject to the grant of an open-space easement executed and accepted in accordance with this chapter shall be deemed to be enforceably restricted within the meaning of Section 8 of Article XIII of the Constitution of the State of California.

History—Stats. 1975, Ch. 224, p. 601, in effect January 1, 1976, substituted "lands subject to the" for "the", "enforceably restricted" for "an enforceable restriction", and "Section 8 of Article XIII" for "Article XXVIII".

51097. Continuation of other powers to acquire easements and rights. Nothing in this chapter shall be deemed to prevent or restrict the right or power of any county or city to acquire by purchase, gift, grant, bequest, devise, lease or otherwise any right or interest in real property for the purpose of preserving open space or for any other purpose under any other provisions of law.

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