Buffy Wicks

The California Land Conservation Act of 1965, otherwise known as the Williamson Act, authorizes a city or county to contract with a landowner to limit the use of agricultural land to agricultural use if the land is located in an agricultural preserve designated by the city or county, as specified. The act authorizes the parties to mutually agree to rescind the contract in order to simultaneously enter into a solar-use easement if approved by the Department of Conservation, as specified. Existing law defines the term "solar-use easement" for these purposes to mean any right or interest acquired by a county, or city in a parcel or parcels determined to be eligible, as provided, where the deed or other instrument granting the right or interest imposes certain restrictions that effectively restrict the use of the land to photovoltaic solar facilities for the purpose of providing for the collection and distribution of solar energy and certain other incidental or subordinate uses or other alternative renewable energy facilities. 

 This bill would revise the definition of the term "solar-use easement" to, among other changes, expand the authorized uses of the land under the easement to include solar energy storage and appurtenant renewable energy facilities. The bill would revise the conditions under which the land subject to a Williamson Act contract may be subject to a solar-use easement, as described above, to instead require the conversion of the Williamson Act contract into a solar-use easement for the term of the solar-use easement, rather than the rescission of the contract, if the Department of Conservation determines that the parcel is eligible to be placed in the easement, as specified.

Under existing law, the Department of Conservation, in consultation with the Department of Food and Agriculture, and upon a request from a city or county, may determine that a parcel is eligible for rescission of a Williamson Act contract for placement into a solar-use easement, as provided. Existing law requires that the parcel meet certain criteria in order to be eligible under these provisions, including that the land meet 1 of 2 specified alternative criteria relating to the use of the land for agricultural purposes and the parcel not be located on lands designated as prime farmland, unique farmland, or farmland of statewide importance, unless the Department of Conservation, in consultation with the Department of Food and Agriculture, determines that circumstances exist that limit the use of the parcel for agricultural activities, as specified. Existing law authorizes a city or county to enter into an agreement with a landowner to use lands determined to be eligible in a solar-use easement pursuant to these provisions.

This bill would revise these provisions to require, rather than authorize, the Department of Conservation to make a determination on whether a parcel is eligible for conversion, as described above, upon the request of the landowner, instead of a request from a county or city, and would require the department to additionally make that determination in consultation with any applicable groundwater sustainability agency or services. The bill would revise the criteria for a parcel to be deemed eligible under these provisions by (1) additionally authorizing land that has insufficient surface water or groundwater available that results in significantly reduced agricultural production activities, as specified; (2) with respect to the exception to the requirement that the land not be located on lands designated as prime farmland, unique farmland, or farmland of statewide importance, as described above, specifying that the circumstances under which the use of the parcel for agricultural activities may be determined to be limited includes insufficient water supplies; and (3) additionally requiring that the land meet certain additional requirements relating to the land's historical use as cropland and whether it is encumbered by a conservation easement or enrolled in a land conservation program, as specified. The bill would also require the Department of Conservation to issue its determination of eligibility within 120 days following submission of a completed application package, as specified, and would deem any application not rejected within this 120-day period to be approved. The bill, at least 14 days prior to the meeting at which the city or county decides whether to enter into the agreement, would require the landowner to notify any relevant workforce in writing of its intent to enter into a solar-use easement, as specified.

Existing law authorizes a county or city to require a solar-use easement deed or restriction to contain any restrictions, conditions, or covenants as are necessary or desirable to restrict the use of the land to photovoltaic solar facilities. Under existing law, these restrictions, conditions, or covenants may include, among other things, mitigation measures on the land that is subject to the solar-use easement and mitigation measures beyond the land that is subject to the solar-use easement. For term easements or self-renewing easements, existing law requires that the restrictions, conditions, or covenants 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 is extinguished.

This bill would require that the mitigation measures on land that is subject to a solar-use easement, as described above, have an essential nexus and be roughly proportional to the impact to be mitigated, and would delete the above-described provision relating to mitigation measures beyond the land that is subject to a solar-use easement. The bill would delete the above-described requirement that a landowner post a performance bond or other securities in relation to a term easement or self-renewing easement. The bill would additionally permit the county or city to require a solar-use easement deed or restriction to include a provision for termination of the easement under prescribed circumstances. The bill would require a city or county to require, as a condition of entering into a solar-use easement, that the photovoltaic solar facility enter into a community benefits agreement with the city or county, as specified. The bill would provide that these restrictions or requirements do not otherwise limit the authority of a city or county, as specified.

Existing law, during the term of a solar-use easement, prohibits the approval of any land use on the land covered by the easement and the issuance of a building permit for a structure that would violate the easement. Existing law requires the county or city to seek an injunction against any construction or other development or activity that would violate the easement and, if the county or city fails to do so or if the county or city engages in specified activity in violation of the easement, authorizes a person or entity to seek an injunction. Existing law authorizes a court to award a plaintiff who prevails in an action under these provisions the costs of their litigation, including reasonable attorney's fees. 

This bill would additionally prohibit the issuance of a construction notice to proceed that would violate the easement. The bill would also remove the above-described authorization of a person or entity to seek the injunction. The bill would also delete the authority of the court to award litigation costs to a prevailing plaintiff.

 Existing law authorizes a solar-use easement to be extinguished by nonrenewal, termination, or returning the land to the previous Williamson Act contract. If the landowner or the county or city desires in any year not to renew the solar-use easement on all or a portion of a parcel, existing law requires that party to serve written notice of nonrenewal of the easement, as specified. If the county, city, or the landowner serves notice of intent in any year not to renew the solar-use easement, existing law provides that the existing solar-use easement remains 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.

The bill would additionally authorize the termination of a solar-use easement by mutual consent, and would make various conforming changes in that regard. The bill would also revise the above-described provisions relating to service of written notice to instead only require a landowner to issue that notice any time they desire not to renew an annually self-renewing solar-use-easement, and to allow a city or county to serve the notice under prescribed circumstances, and make conforming changes. The bill would delete the above-described provisions relating to the remaining effect of the easement following service of a notice of intent.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA exempts from its provisions various activities, including ministerial projects proposed to be carried out or approved by public agencies.

This bill would exempt entry into or recordation of a solar-use easement under the above-described provisions from CEQA, but would specify that its provisions do not exempt a photovoltaic solar facility from CEQA.

This bill would incorporate additional changes to Section 21080 of the Public Resources Code proposed by either AB 149 and SB 149 to be operative only if this bill and either AB 149 or SB 149 are enacted and this bill is enacted last.