Code Section Group

Code of Civil Procedure - CCP

PART 3. OF SPECIAL PROCEEDINGS OF A CIVIL NATURE [1063 - 1822.60]

  ( Part 3 enacted 1872. )

TITLE 7. EMINENT DOMAIN LAW [1230.010 - 1273.050]

  ( Title 7 repealed [comm. with Section 1237] and added by Stats. 1975, Ch. 1275. )

CHAPTER 3. The Right to Take [1240.010 - 1240.700]

  ( Chapter 3 added by Stats. 1975, Ch. 1275. )

ARTICLE 1. General Limitations on Exercise of Power of Eminent Domain [1240.010 - 1240.055]
  ( Article 1 added by Stats. 1975, Ch. 1275. )

1240.010.
  

The power of eminent domain may be exercised to acquire property only for a public use. Where the Legislature provides by statute that a use, purpose, object, or function is one for which the power of eminent domain may be exercised, such action is deemed to be a declaration by the Legislature that such use, purpose, object, or function is a public use.

(Added by Stats. 1975, Ch. 1275.)

1240.020.
  

The power of eminent domain may be exercised to acquire property for a particular use only by a person authorized by statute to exercise the power of eminent domain to acquire such property for that use.

(Added by Stats. 1975, Ch. 1275.)

1240.030.
  

The power of eminent domain may be exercised to acquire property for a proposed project only if all of the following are established:

(a) The public interest and necessity require the project.

(b) The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury.

(c) The property sought to be acquired is necessary for the project.

(Added by Stats. 1975, Ch. 1275.)

1240.040.
  

A public entity may exercise the power of eminent domain only if it has adopted a resolution of necessity that meets the requirements of Article 2 (commencing with Section 1245.210) of Chapter 4.

(Added by Stats. 1975, Ch. 1275.)

1240.050.
  

A local public entity may acquire by eminent domain only property within its territorial limits except where the power to acquire by eminent domain property outside its limits is expressly granted by statute or necessarily implied as an incident of one of its other statutory powers.

(Added by Stats. 1975, Ch 1275.)

1240.055.
  

(a) As used in this section, the following terms have the following meanings:

(1) “Conservation easement” means a conservation easement as defined in Section 815.1 of the Civil Code and recorded as required by Section 815.5 of the Civil Code.

(2) “Holder of a conservation easement” means the entity or organization that holds the conservation easement on the property that is proposed for acquisition and that is authorized to acquire and hold conservation easements pursuant to Section 815.3 of the Civil Code.

(3) “Property appropriated to public use,” as used in Article 6 (commencing with Section 1240.510) and Article 7 (commencing with Section 1240.610), includes a conservation easement if any of the following applies:

(A) The conservation easement is held by a public entity.

(B) A public entity provided funds, not including the value of a charitable contribution for federal or state income tax purposes but including the California Natural Heritage Preservation Tax Credit, for the acquisition of that easement.

(C) A public entity imposed conditions on approval or permitting of a project that were satisfied, in whole or in part, by the conservation easement.

(b) A person authorized to acquire property for public use by eminent domain shall exercise the power of eminent domain to acquire property that is subject to a conservation easement only as provided in this section.

(c) Not later than 105 days prior to the hearing held pursuant to Section 1245.235, or at the time of the offer made to the owner or owners of record pursuant to Section 7267.2 of the Government Code, whichever occurs earlier, the person seeking to acquire property subject to a conservation easement shall give notice to the holder of the conservation easement as provided in this subdivision. If the person is not required to hold a hearing pursuant to Section 1245.235, then the notice shall be given 105 days prior to the time of the offer made to the owner or owners of record pursuant to Section 7267.2 of the Government Code.

(1) The notice required by subdivision (c) shall be sent by first-class mail and shall state all of the following:

(A) A general description, in text or by diagram, of the property subject to a conservation easement that the person proposes to acquire by eminent domain.

(B) A description of the public use or improvement that the person is considering for the property subject to a conservation easement.

(C) That written comments on the acquisition may be submitted in accordance with paragraph (3) no later than 45 days from the date the person seeking to acquire the property mailed the notice to the holder of the conservation easement.

(D) That the holder of the conservation easement, within 15 days of receipt of the notice required by subdivision (c), is required, under certain circumstances, to do all of the following:

(i) Send a copy of the notice by first-class mail to each public entity that provided funds for the purchase of the easement or that imposed conditions on approval or permitting of a project that were satisfied, in whole or in part, by the creation of the conservation easement.

(ii) Inform the public entity that written comments on the acquisition may be submitted in accordance with paragraph (3).

(iii) Notify the person seeking to acquire the property of the name and address of any public entity that was sent a copy of the notice pursuant to this paragraph.

(2) (A) The holder of the conservation easement, within 15 days of receipt of the notice required by subdivision (c), shall do all of the following:

(i) Send a copy of the notice by first-class mail to each public entity that provided funds for the purchase of the easement or that imposed conditions on approval or permitting of a project that were satisfied, in whole or in part, by the creation of the conservation easement.

(ii) Inform the public entity that written comments on the acquisition may be submitted in accordance with paragraph (3).

(iii) Notify the person seeking to acquire the property of the name and address of any public entity that was sent a copy of the notice pursuant to this paragraph.

(B) Subparagraph (A) shall apply only if one of the following applies:

(i) The holder of the easement is the original grantee of the conservation easement and there is a public entity as described in subparagraph (A).

(ii) The holder of the easement has actual knowledge of a public entity as described in subparagraph (A).

(iii) Recorded documents evidence the identity of a public entity as described in subparagraph (A).

(3) The holder of the conservation easement or the public entity receiving notice, or both, may provide to the person seeking to acquire the property written comments on the acquisition, including identifying any potential conflict between the public use proposed for the property and the purposes and terms of the conservation easement. Written comments on the acquisition may be submitted no later than 45 days from the date the person seeking to acquire the property mailed the notice to the holder of the conservation easement.

(d) The person seeking to acquire the property subject to a conservation easement, within 30 days after receipt of written comments from the holder of the conservation easement or from a public entity described in paragraph (2) of subdivision (c), shall respond in writing to the comments. The response to the comments shall be mailed by first-class mail to each easement holder or public entity that filed comments.

(e) The notice of the hearing on the resolution of necessity, pursuant to Section 1245.235, shall be sent by first-class mail to the holder of any conservation easement and to any public entity whose name and address are provided as described in paragraph (2) of subdivision (c) and shall state that they have the right to appear and be heard on the matters referred to in Sections 1240.030, 1240.510, and 1240.610. The notice shall state that, pursuant to paragraph (3) of subdivision (b) of Section 1245.235, failure to file a written request to appear and be heard within 15 days after the notice was mailed will result in waiver of the right to appear and be heard. The resolution of necessity to acquire property subject to a conservation easement shall refer specifically either to Section 1240.510 or 1240.610 as authority for the acquisition of the property.

(f) In any eminent domain proceeding to acquire property subject to a conservation easement, the holder of the conservation easement:

(1) Shall be named as a defendant, as set forth in Section 1250.220.

(2) May appear in the proceedings, as set forth in Section 1250.230.

(3) Shall have all the same rights and obligations as any other defendant in the eminent domain proceeding.

(g) (1) The holder of the conservation easement is an owner of property entitled to compensation determined pursuant to Section 1260.220 and Chapter 9 (commencing with Section 1263.010) and in accordance with all of the following:

(A) The total compensation for the acquisition of all interests in property encumbered by a conservation easement shall not be less than, and shall not exceed, the fair market value of the fee simple interest of the property as if it were not encumbered by the conservation easement.

(B) If the acquisition does not damage the conservation easement, the total compensation shall be assessed by determining the value of all interests in the property as encumbered by the conservation easement.

(C) If the acquisition damages the conservation easement in whole or in part, compensation shall be determined consistent with Section 1260.220 and the value of the fee simple interest of the property shall be assessed as if it were not encumbered by the conservation easement.

(2) This subdivision shall not apply if the requirements of Section 10261 of the Public Resources Code apply.

(h) This section shall not apply if the requirements of Section 1348.3 of the Fish and Game Code apply.

(Added by Stats. 2011, Ch. 589, Sec. 2. Effective January 1, 2012.)

CCPCode of Civil Procedure - CCP1.