CHAPTER 4.5. Greenway Easements [816.50 - 816.66]
( Chapter 4.5 added by Stats. 2015, Ch. 639, Sec. 3. )
The Legislature finds and declares the following with regard to the development of greenways along urban waterways:
(a) The restoration and preservation of land in its natural, scenic, forested, recreational, or open-space condition is among the most important environmental assets in California.
(b) 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.
(c) It is the policy of the Legislature and in the best interest in the state to encourage the voluntary conveyance of greenway easements to qualified nonprofit organizations.
(Added by Stats. 2015, Ch. 639, Sec. 3. (AB 1251) Effective January 1, 2016.)
For purposes of this chapter, the following definitions apply:
(a) (1) “Adjacent” means within 400 yards from the property boundary of an existing urban waterway.
(2) This subdivision does not create a new authority to place or extend an easement on private property that is
not part of a voluntary agreement.
(b) “Greenway” means a pedestrian and bicycle, nonmotorized vehicle transportation, and recreational travel corridor that meets the following requirements:
(1) Includes landscaping that improves rivers and streams, provides flood protection benefits, and incorporates the significance and value of natural, historical, and cultural resources, as documented in the local agency’s applicable planning document, including, but not limited to, a master plan, a general plan, or a specific plan.
(2) Is separated and protected from shared roadways, is adjacent to an urban waterway, and incorporates both ease of access to nearby communities and an array of amenities within an urbanized area and services for the users of the corridor and nearby communities.
(3) Is located on public lands or private lands, or a combination of public and private lands, where public access to those lands for greenway purposes has been legally authorized by, or legally obtained from, the fee owner of the land and, if applicable, the operator of any facility or improvement located on the land, through leases, easements, or other agreements entered into by the fee owner and the operator of any affected facility or improvement on the land.
(4) Reflects design standards regarding appropriate widths, clearances, setbacks from obstructions, and centerlines protecting directional travel, and other considerations, as appropriate, that are applicable for each affected local agency, as documented in the local agency’s applicable planning document, including, but not limited to, a master plan, general plan, or specific plan, and that are consistent with plans and
facilities for controlling the floodwater of rivers and their tributaries, as applicable.
(5) May incorporate appropriate lighting, public amenities within an urbanized area, art, and other features that are consistent with a local agency’s planning document, including, but not limited to, a general plan, master plan, or specific plan.
(c) “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 that land, for either of the following purposes:
(1) Developing greenways adjacent to urban waterways consistent with restoration efforts undertaken at those waterways at the time of the creation of the
easement, if any.
(2) Preserving greenways adjacent to urban waterways.
(d) “Local agency” means a city, county, or city and county.
(e) “Urbanized area” has the same meaning as set forth in Section 21071 of the Public Resources Code.
(f) “Urban waterway” means a creek, stream, or river that crosses (1) developed residential, commercial, or industrial property or (2) open space where the land use is designated as residential, commercial, or industrial, as referenced in a local agency’s planning document, including, but not limited to, a general plan, master plan, or specific general plan.
(Amended by Stats. 2016, Ch. 471, Sec. 1. (AB 2651) Effective September 22, 2016.)
(a) A greenway easement is an interest in real property voluntarily created and freely transferable in whole or in part for the purposes stated in subdivision (c) of Section 816.52 by any lawful method for the transfer of interests in real property in this state.
(b) A greenway easement shall be perpetual in duration.
(c) Notwithstanding the fact that it may be negative in character, a greenway easement is not personal in nature and shall constitute an interest in real property.
(d) The particular characteristics of a greenway easement shall be those granted or specified in the instrument creating or transferring the easement.
(Added by Stats. 2015, Ch. 639, Sec. 3. (AB 1251) Effective January 1, 2016.)
Only the following entities or organizations may acquire and hold a greenway easement:
(a) A tax-exempt nonprofit organization qualified under Section 501(c)(3) of the Internal Revenue Code and qualified to do business in this state 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, or the
preservation or development of a greenway.
(b) The state or any city, county, city and county, district, or other state or local governmental entity, if otherwise authorized to acquire and hold title to real property and if the greenway easement is voluntarily conveyed. A local governmental entity shall not condition the issuance of an entitlement for use on the applicant’s granting of a greenway easement pursuant to this chapter.
(c) 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 to protect a California Native American prehistoric, archaeological, cultural, spiritual, or ceremonial place, if the greenway easement is voluntarily conveyed.
(Added by Stats. 2015, Ch. 639, Sec. 3. (AB 1251) Effective January 1, 2016.)
All interests not transferred and 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.
(Added by Stats. 2015, Ch. 639, Sec. 3. (AB 1251) Effective January 1, 2016.)
Instruments creating, assigning, or otherwise transferring greenway easements shall be recorded in the office of the county recorder of the county where the land is situated, in whole or in part, and those instruments shall be subject in all respects to the recording laws.
(Added by Stats. 2015, Ch. 639, Sec. 3. (AB 1251) Effective January 1, 2016.)
(a) No greenway easement shall be unenforceable by reason of lack of privity of contract or lack of benefit to particular land or because not expressed in the instrument creating it as running with the land.
(b) Actual or threatened injury to or impairment of a greenway easement or actual or threatened violation of its terms may be prohibited or restrained, or the interest intended for protection
by that easement may be enforced, by injunctive relief granted by any court of competent jurisdiction in a proceeding initiated by the grantor or by the owner of the greenway easement.
(c) In addition to the remedy of injunctive relief, the holder of a greenway easement shall be entitled to recover money damages for any injury to the greenway easement or to the interest being protected thereby or for the violation of the terms of the greenway easement. In assessing the damages, there may be taken into account, in addition to the cost of restoration and other usual rules of the law of damages, the loss of scenic, aesthetic, or environmental value to the real property subject to the greenway easement.
(d) The court may award to the prevailing party in any action authorized by this section the costs of litigation, including reasonable attorney’s fees.
(Added by Stats. 2015, Ch. 639, Sec. 3. (AB 1251) Effective January 1, 2016.)
Nothing in this chapter shall be construed to impair or conflict with the operation of any law or statute conferring upon any political subdivision the right or power to hold interests in land comparable to greenway easements, including, but not limited to, Chapter 12 (commencing with Section 6950) of Division 7 of Title 1 of, Chapter 6.5 (commencing with Section 51050), Chapter 6.6 (commencing with Section 51070) and Chapter 7 (commencing with Section 51200) of Part 1 of Division 1
of Title 5 of, and Article 10.5 (commencing with Section 65560) of Chapter 3 of Title 7 of, the Government Code, and Article 1.5 (commencing with Section 421) of Chapter 3 of Part 2 of Division 1 of the Revenue and Taxation Code.
(Added by Stats. 2015, Ch. 639, Sec. 3. (AB 1251) Effective January 1, 2016.)
A greenway easement granted pursuant to this chapter constitutes an enforceable restriction, for purposes of Section 402.1 of the Revenue and Taxation Code.
(Added by Stats. 2015, Ch. 639, Sec. 3. (AB 1251) Effective January 1, 2016.)