Article 3. General Provisions of California Government Code >> Division 1. >> Title 5. >> Part 1. >> Chapter 6.6. >> Article 3.

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.

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.

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 covenants 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.

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.

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.

A grant of an open-space easement shall not 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 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 or fiber specifically because one or more of the following reasons exists:
  (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.
  (7) 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.

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.

(a) From and after the time when an open-space easement has been accepted or approved by the county or city and its acceptance or approval 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.

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 the recordation, the easement shall impart notice thereof to all persons as is afforded by the recording laws of this state.