Eminent Domain Report

Conservation easements generally preserve land in a predominantly natural or agricultural state. The efforts behind these easements often go unappreciated. The same is true for the notice requirements that correspond with the acquisition of property encumbered by a conservation easement. Failing to heed these notice requirements can impede acquisition efforts and add cost and delay to public projects.

Code of Civil Procedure section 1240.055 sets forth valuation and notice requirements for acquiring conservation easements under threat of condemnation in California.* It requires an acquiring party, prior to a hearing on a resolution of necessity, to send notice to the holder of the easement at the earlier of 105 days before the hearing on the resolution of necessity or at the time of making the government code offer. The timing of the notice makes it imperative that a project identify and plan for easement interests as early as possible.

The provision of the first notice sets off an additional notice and comment and response process. Within 15 days of receipt of the initial notice, unless otherwise exempt, the holder of the easement must then provide their own notice to any funding and/or controlling agencies (and advise the acquiring party of this notice) with comments due from all interested parties to the acquiring party within 45 days of the initial notice. The acquiring party must then respond to any comments it receives within 30 days of receipt of those comments. Coordination of this response can require collaboration with the broader project team.

Section 1240.055 provides details on the matter of transmission, the contents, and the timing of the required notices, comments, and responses.

Following this exchange, the holder of the easement, and any additional identified interest holders, must also receive notice of the hearing on the resolution of necessity advising them of their right to appear and be heard. Any resolution of necessity adopted must include reference to applicable code sections for the acquisition of property for a more necessary or compatible public use.

Beyond the statutory requirements, there may be additional obligations imposed by the easement itself or by partnership agencies or entities. Accordingly, as with any project, it is important to familiarize oneself with the specifics of the property and project requirements at issue to minimize acquisition risks.

*The deadlines and process cited in this article exist as of the date of publication. It is important to confirm any requirements or exemptions under existing laws as of the date of a particular acquisition. Additionally, as of the date of publication, the deadlines specified in this section do not apply to wildlife conservation easements governed by Fish and Game Code 1348.3 (see CCP 1240.055(h)).