Article 2. General Provisions of California Government Code >> Division 1. >> Title 5. >> Part 1. >> Chapter 6.9. >> Article 2.
(a) For purposes of this chapter, and for purposes of
Chapter 7 (commencing with Section 51200), the Department of
Conservation, in consultation with the Department of Food and
Agriculture, upon a request from a city or county, may determine,
based on substantial evidence, that a parcel or parcels is eligible
for rescission under Section 51255.1 for placement into a solar-use
easement if the following criteria are met:
(1) The land meets either of the following:
(A) The land consists predominately of soils with significantly
reduced agricultural productivity for agricultural activities due to
chemical or physical limitations, topography, drainage, flooding,
adverse soil conditions, or other physical reasons.
(B) The land has severely adverse soil conditions that are
detrimental to continued agricultural activities and production.
Severely adverse soil conditions may include, but are not limited to,
contamination by salts or selenium, or other naturally occurring
contaminants.
(2) The parcel or parcels are not located on lands designated as
prime farmland, unique farmland, or farmland of statewide importance,
as shown on the maps prepared pursuant to the Farmland Mapping and
Monitoring Program of the California Natural Resources Agency, unless
the Department of Conservation, in consultation with the Department
of Food and Agriculture, determines that a parcel or parcels are
eligible to be placed in a solar-use easement based on the
information provided in subdivision (b) that demonstrates that
circumstances exist that limit the use of the parcel for agricultural
activities. For purposes of this section, the important farmland
designations shall not be changed solely due to irrigation status.
(b) To assist in the determination described in this section, the
city or county shall require the landowner to provide to the
Department of Conservation the following information to the extent
applicable:
(1) A written narrative demonstrating that even under the best
currently available management practices, continued agricultural
practices would be substantially limited due to the soil's reduced
agricultural productivity from chemical or physical limitations.
(2) A recent soil test demonstrating that the characteristics of
the soil significantly reduce its agricultural productivity.
(3) An analysis of water availability demonstrating the
insufficiency of water supplies for continued agricultural
production.
(4) An analysis of water quality demonstrating that continued
agricultural production would, under the best currently available
management practices, be significantly reduced.
(5) Crop and yield information for the past six years.
(c) The landowner shall provide the Department of Conservation
with a proposed management plan describing how the soil will be
managed during the life of the easement, how impacts to adjacent
agricultural operations will be minimized, how the land will be
restored to its previous general condition, as it existed at the time
of project approval, upon the termination of the easement. If the
Department of Conservation determines, in consultation with the
Department of Food and Agriculture, pursuant to subdivision (a), that
lands are subject to this section, the city or county shall require
implementation of the management plan, which shall include any
recommendations provided by the Department of Conservation, as part
of any project approval.
(d) A determination by the Department of Conservation pursuant to
this section related to a project described in Section 21080 of the
Public Resources Code shall not be subject to Division 13 (commencing
with Section 21000) of the Public Resources Code.
(e) The Department of Conservation may establish a fee to be paid
by the landowner to recover the estimated costs incurred by the
department in participating in the consultation described in this
section.
Any county or city may enter into an agreement with a
landowner pursuant to Section 51255.1 to use lands determined to be
eligible pursuant to Section 51191 in a solar-use easement in the
manner provided in this chapter.
The execution and acceptance of a deed or other instrument
described in subdivision (c) of Section 51190 shall constitute a
dedication to the public of the use of lands for solar photovoltaic
use. Any term easement and covenant shall run for a term of not less
than 20 years unless a shorter term is requested by the landowner, in
which case the term may be not less than 10 years. A solar-use
easement for a term of years may provide that on the anniversary date
of the acceptance of the solar-use easement, or on any other annual
date as specified by the deed or other instrument described in
subdivision (c) of Section 51190, a year shall be added automatically
to the initial term unless a notice of nonrenewal is given as
provided in Section 51192.
(a) A county or city may require a deed or other
instrument described in subdivision (c) of Section 51190 to contain
any restrictions, conditions, or covenants as are necessary or
desirable to restrict the use of the land to photovoltaic solar
facilities.
(b) The restrictions, conditions, or covenants may include, but
are not limited to, the following:
(1) Mitigation measures on the land that is subject to the
solar-use easement.
(2) Mitigation measures beyond the land that is subject to the
solar-use easement.
(3) If deemed necessary by the city or county to ensure that
decommissioning requirements are met, the provision for financial
assurances, such as performance bonds, letters of credit, a corporate
guarantee, or other securities to fund, upon the cessation of the
solar photovoltaic use, the restoration of the land that is subject
to the easement to the conditions that existed before the approval or
acceptance of that easement by the time that the easement
terminates.
(4) Provision for necessary amendments by the parties provided
that the amendments are consistent with the provisions of this
chapter.
(c) For term easements or self-renewing easements, the
restrictions, conditions, or covenants shall 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. The Department of
Conservation may adopt regulations pursuant to the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of
Division 3 of Title 2) to implement this subdivision.
No deed or other instrument described in subdivision (c)
of Section 51190 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.
(a) During the term of the solar-use easement, the county
or city shall not approve any land use on land covered by a solar
easement that is inconsistent with the easement, and no building
permit may be issued for any structure that would violate the
easement. The county or city shall seek, by appropriate proceedings,
an injunction against any threatened construction or other
development or activity on the land that would violate the easement
and shall seek a mandatory injunction requiring the removal of any
structure erected in violation of the easement.
If the county or city fails to seek an injunction against any
threatened construction or other development or activity on the land
that 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, a person or entity may, by appropriate proceedings, seek an
injunction.
(b) The court may award to a plaintiff who prevails in an action
authorized by this section his or her cost of litigation, including
reasonable attorney's fees.
(c) Nothing in this chapter shall limit the power of the state 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 a solar-use easement by eminent domain.
Upon the acceptance or approval of any instrument creating
a solar-use easement, the clerk of the governing body shall record
the instrument in the office of the county recorder and file a copy
with the county assessor. After the easement is recorded, it shall
impart notice to all persons under the recording laws of this state.
The parcel or parcels subject to a solar-use easement
shall be assessed pursuant to Section 402.1 of the Revenue and
Taxation Code during the term of the easement.
The Department of Conservation may adopt regulations
pursuant to the Administrative Procedure Act (Chapter 3.5 (commencing
with Section 11340) of Division 3 of Title 2) for the implementation
of this chapter.